In the case of the case, the insurance contract does not agree on the insurance value of the new energy vehicle insurance claims calculation standard.

[brief case]] On November 10, 2017, Wang took out motor vehicle commercial loss insurance (hereinafter referred to as vehicle damage insurance) and no deductible insurance for his car in a property insurance Beijing branch. The insured vehicle is a pure electric car, and the purchase of this car enjoys preferential policies for the purchase of new energy vehicles; after deducting the state subsidy for the vehicle involved in the accident, Wang actually paid 60000 yuan for the purchase. A property insurance Beijing branch evaluates and calculates the insurance cost according to the official guide price before the car subsidy. The compensation limit for car damage insurance is 169801.2 yuan, and the insurance period is from December 12, 2017 to December 11, 2018. On April 25, 2018, Wang's father, Wang Yi, had a traffic accident driving the vehicle, causing damage to the vehicle. After the accident, Wang Yi immediately reported to a property insurance Beijing branch and explained the accident. After Wang mou sent the accident vehicle to a car sales co., ltd for repair and paid the repair cost of 70365 yuan. Wang mou believed that the vehicle involved in the accident was insured against vehicle damage in a property insurance Beijing branch with an insurance amount of 169801.2 yuan. the accident in this case occurred during the insurance period, and a property insurance Beijing branch should compensate Wang mou for 70365 yuan in accordance with the insurance contract. A property insurance Beijing branch believes that the vehicle involved in the accident should be calculated according to the depreciation value of 54240 yuan of Wang's actual purchase price, and should not be compensated according to the vehicle insurance amount of 169801.2 yuan at the time of insurance, so it does not agree with the compensation amount claimed by Wang. focus of controversy] How to determine the insurance value of the vehicle involved in the accident. The court considered] The court held that the insurance contract signed by Wang and a property insurance Beijing branch was the true intention of both parties, did not violate the mandatory provisions of laws and administrative regulations, and should be legal and effective. The focus of the dispute in this case is how to determine the insurance value of the vehicle involved in the accident. According to the provisions of Article 55 of the the People's Republic of China Insurance Law, if the insured and the insurer agree on the insurance value of the subject matter of the insurance and state it in the contract, the agreed insurance value shall be the standard of compensation calculation in the event of loss of the subject matter of the insurance. If the insured and the insurer have not agreed on the insured value of the subject matter of the insurance, the actual value of the subject matter of the insurance at the time of the insurance accident shall be the standard for the calculation of compensation in the event of loss of the subject matter of the insurance. According to Article 18 of the the People's Republic of China Insurance Law, the amount of insurance refers to the maximum amount of the insurer's liability for compensation or payment of insurance benefits. According to the above provisions, in a property insurance contract, the subject matter of the insurance has an insured value, and the amount of insurance is determined on the basis of the insured value. Insurance value is the economic value of the subject matter of insurance that can be estimated in monetary terms at a particular period of time. Specifically in this case, the subject matter of the insurance is the insured vehicle under the name of Wang. The insurance value is the monetization of the insured's insurance interest in the subject matter of the insurance. The value of the subject matter of the insurance exists objectively. It will not change due to whether there is a state subsidy, and then the insured's insurance interest in the subject matter of the insurance is also objective, and it will not change due to whether there is a state subsidy. According to Article 13 of the "Motor Vehicle Comprehensive Commercial Insurance Clauses" (hereinafter referred to as the "Insurance Clauses"), the insurance amount is determined according to the actual value of the insured motor vehicle at the time of insurance. In this case, the corresponding insurance amount in the "insurance amount" column of the motor vehicle comprehensive commercial insurance policy is 169801.2 yuan, that is, when Wang mou insured the vehicle, a property insurance Beijing branch calculated the insurance amount and insurance cost based on the official guiding price before the subsidy of the vehicle. the department can also certify that the actual value of the vehicle involved in the accident when insured is 169801.2 yuan. Therefore, the court held that the actual value of the vehicle involved in the accident at the time of insurance should be the official guiding price of 169801.2 yuan before the subsidy. According to the provisions of Article 55 of the the People's Republic of China Insurance Law, if the insured and the insurer have not agreed on the insured value of the subject matter of the insurance, the actual value of the subject matter of the insurance at the time of the insurance accident shall be the standard of compensation calculation. In this case, the two parties did not agree on the insurance value, so a property insurance Beijing branch should be based on the actual value of the subject matter of the insurance at the time of the accident as the standard of compensation calculation. According to the Insurance Clause, the actual value of the vehicle in this case after depreciation at the time of the insurance accident is 169801.2 x (1-16 x 0.006)= 153500.2848 yuan. In this case, Wang claimed that the vehicle maintenance cost was 70365 yuan, and the value of the loss was also lower than the actual value after the above depreciation, and within the scope of the insurance amount. Therefore, the court supported Wang mou's claim of vehicle maintenance cost of 70365 yuan, and did not support the opinion that a property insurance Beijing branch claimed to calculate the insurance amount according to the price before subsidy and to calculate the insurance amount according to the actual purchase price of 60000 yuan. Lawyer Advice] In recent years, the scale of new energy automobile industry has developed rapidly, and the use of new energy vehicles is more common. For new energy vehicles, car owners generally enjoy state subsidies when purchasing new energy vehicles, so the actual purchase price of new cars for car owners is lower than the official market guidance price. In motor vehicle property loss insurance, the current general practice of insurance companies is to calculate the premium based on the price before the subsidy, and the amount after the subsidy is used as the standard for the upper limit of compensation, that is, the "high insurance and low compensation" in practice ". In this case, with regard to the insurance claims of new energy vehicles, the court held that in the absence of a clear agreement on the value of automobile insurance in the insurance contract, the insurance company should take the actual value of the vehicle involved in the accident at the time of insurance, that is, the official guide price before the subsidy, as the calculation standard of insurance claims. Through this case, it is suggested that in the process of carrying out the new energy vehicle insurance business, the insurance company should clearly agree on the insurance value in the insurance contract and standardize the underwriting procedures, such as strictly fulfilling the obligation to remind the insured about the compensation limit and other contents, so as to prevent the relevant claims and litigation risks.

2021-11-29

Viewpoint | The Influence of the Unestablished Company Resolution on the Cancellation of Change Registration-From the Perspective of Judicial Application of Paragraph 4 of Article 22 of the Company Law

Foreword: The company resolution is the meaning of the company's authority, which affects and reflects the company's business decision-making and internal governance will, and the company's application for change registration to the registration authority must be based on an effective company resolution. The fourth paragraph of Article 22 of China's "Company Law" stipulates that the company can apply to the registration authority for cancellation of the change registration according to the effective judgment document after the company resolution is invalid and revoked. However, there is no specific regulation on whether the company resolution can be applied for cancellation of the change registration. The approval criteria held by the registration authorities in different regions are not the same. There are many disputes in practice, the introduction of clearer legal guidelines in the area of registration authority approval scales has become a real need. 1 The conceptual background of the company's resolution is not established. Before the introduction of the "Company Law Interpretation IV", my country has always adopted a "dichotomy" for the form of corporate resolutions, like Germany, Switzerland, and Taiwan ". The so-called "dichotomy" refers to the validity of the company's resolution defects into procedural defects and content defects, and respectively identified as revocable and invalid, its legal logic is based on the analysis of the degree of resolution defects, serious defects constitute invalid reasons, relatively minor general defects constitute revocable reasons. The division of the validity of the "dichotomy" for the company's resolution is relatively simple and direct, but the defects are also obvious: the establishment of a legal act is a prerequisite for the validity of a legal act, and only after the establishment of a legal act can it be judged whether it is valid. The constituent elements and value orientations of the two are not the same. The establishment element focuses on the objective evaluation of the facts, while the effective element is the secondary value evaluation of whether the established legal act violates the mandatory provisions and social public order and good customs. However, the revocation or invalidity of a resolution is premised on the establishment of the resolution, and when the resolution is not established at all, it is undoubtedly wrong to judge the validity of its revocation or invalidity. Article 5 of the Interpretation of the Company Law adds a lawsuit of non-establishment of the resolution, which means that China has divided the company resolution into three cases: non-establishment, revocable and invalid, and has moved from the "dichotomy" of the determination of the validity of the resolution to the "trichotomy". The "trichotomy", based on the system of meaning in the theory of legal acts, separates the establishment of a resolution from its entry into force. The essence of corporate resolution is the act of resolution, and the fundamental feature of the act of resolution is that it takes the meaning of majority decision to form a mechanism in accordance with the requirements of procedural justice. The company resolution as the company's meaning, unlike the natural person to make a meaning may only need to go through a psychological weighing process, the establishment of the company resolution to comply with the statutory or articles of association agreed voting methods or procedures as a necessary condition, does not meet the procedural value of the resolution can not be recognized as the company's meaning. 2 Legal provisions 1. Article 40 of the regulations on the Administration of Company Registration: if a company applies to the company registration authority for cancellation of change registration in accordance with the provisions of Article 22 of the Company Law, it shall submit the following documents: The application signed by the legal representative of the (I) company; the judgment document of the (II) people's court. 2. Article 22, paragraph 4, of the Company Law: if the company has gone through the change registration in accordance with the resolution of the shareholders' meeting or the general meeting of shareholders or the board of directors, after the people's court declares the resolution invalid or revokes the resolution, the company shall apply to the company registration authority to cancel the change registration. 3. Article 5 of Interpretation IV of the Company Law: If the resolution of the shareholders' meeting or the general meeting of shareholders or the board of directors has one of the following circumstances, if the parties claim that the resolution is not established, the people's court shall support it... 3 Disputes in Practice There are two controversial views in practice: The first point of view is that Article 40 of the Regulations on the Administration of Company Registration and the fourth paragraph of Article 22 of the Company Law only stipulate two legal situations: the people's court declares the resolution invalid and revokes the resolution. The registration authority can approve the company's application for cancellation of change of registration based on the effective judgment that the resolution is invalid or the resolution is revoked, the registration authority needs to comply with the requirements of administration according to law. The law cannot do without authorization. In the absence of clear provisions, the application for cancellation of change registration based on the effective judgment of "the resolution is not established" lacks legal basis and should not be approved. The second view is that although the invalidity and revocation of resolutions stipulated in paragraph 4 of Article 22 of the Company Law are both for resolutions that have already been established, there is no clear provision for the circumstances under which resolutions are not established. However, a resolution that is not established is of course not legally binding and does not produce legal effect. The consequences of non-establishment are even more than invalid and revocable. The applicant may apply to the company registration authority for cancellation of the change registration based on the effective judgment of the resolution that is not established. The registration authority shall approve it in accordance with the law. 4 The author suggests The author agrees with the second view, for the following reasons: 1. In August 2017, the Supreme People's Court issued the Supreme People's Court on the application of<中华人民共和国公司法>When answering a reporter's question, Judge Du Wanhua, a full-time member of the Judicial Committee of the Supreme People's Court, replied as follows: "Article 22 of the Company Law of our country stipulates that the actions of confirming the invalidity of the resolution and revoking the resolution are all aimed at the resolution that has already been established and do not cover the situation where the resolution is not established. In our view, from the interpretation of the system, a resolution that is not established is of course not legally binding and should be an implied provision of company law. Therefore, Article 5 of the" Interpretation IV of the Company Law "stipulates that the action of the resolution is not established, together with the action of invalidation of the resolution and the action of revocation of the resolution, together constitute the pattern of" trichotomy ". The Supreme Court's attitude towards this can also be seen from the Supreme Court's previous communiqué cases: whether a legal act is established or not is a matter of factual judgment, the validity of a legal act is a matter of legal value judgment, and if a resolution lacks basic establishment elements, there is no question of effectiveness evaluation. Unestablished civil legal acts do not have legal effect, which is in line with the basic logic of the law. The legislature does not need to make separate legislation on this issue. Moreover, the background of the promulgation of the Interpretation IV of the Company Law is that the Supreme People's Court uses the way of issuing judicial interpretations to fill the loopholes in Article 22 of the Company Law. Therefore, Article 5 of the Interpretation IV of the Company Law stipulates that the resolution is not established, it should be the same as the invalidity and revocability of the resolution, which should belong to the applicable circumstances of Article 22 of the Company Law, and the failure of the resolution can be regarded as one of the circumstances in which the company applies to the registration authority to cancel the registration of the change. 2. Whether it is the theory of legal acts or judicial practice in our country, it is recognized that "the resolution is not established" can be used as the applicable situation stipulated in the fourth paragraph of Article 22 of the "Company Law". For example, the second item of Article 4 of the "Interim Administrative Measures for the Cancellation of Enterprise Registration by Sichuan Provincial Industry and Commerce and Market Supervision Authorities" clearly includes the non-establishment of the resolution of the shareholders' meeting as one of the cancellation of registration by the registration by the registration authority, for example, the civil judgment of Zhengzhou intermediate people's court (2018 Yu 01 min zong No. 4885) and other effective documents also regard the non establishment of the resolution as the implied application of Article 22 of the company law. In practice, the non establishment of the resolution should also be regarded as the situation that the company applies to the registration authority to cancel the change registration. Lawyer Profile Chen Xiaotong, male, corporate lawyer of Shandong Zhongcheng Qingtai (Jinan) Law Firm, Bachelor of Law of Shandong University, Master of International Commercial Law and Maritime Law of Swansea University, UK, Outstanding Young Lawyer of Shandong Province, Director of European and American Alumni Association of United Front Work Department of Shandong Provincial Committee of the Communist Party of China, Student entrepreneurship mentor of Jinan University. Since its official practice in June 2014, its work has mainly been to serve as perennial legal adviser to medium and large state-owned enterprises, banks and other financial institutions, special legal adviser to financial institutions for enterprise investment and financing projects, and special legal adviser to capital market business. conduct legal risk assessment on the main business of enterprises, and issue legal opinions for daily operation of enterprises and special projects. Chen Xiaotong's lawyer team has experience in serving many large and medium-sized state-owned enterprises, banks, and listed companies. They have certain experience in corporate governance of state-owned enterprises, corporate restructuring, laws and regulations of listed companies, capital market business, etc., and are familiar with procedures and relevant laws and regulations. In terms of non-litigation business, the team has been responsible for the issuance of corporate bonds, corporate bonds, medium-term notes, ultra-short-term financing bills, debt financing plans, listing on the company's main board and asset securitization, and is familiar with the characteristics of the legal field of investment and financing in the capital market. The main consultants who have served since their practice are: shandong Provincial Development and Reform Commission, Shandong Iron and Steel Group Co., Ltd., Jinan Iron and Steel Group Co., Ltd., Shandong Commercial Group Co., Ltd., Lushang Real Estate Co., Ltd., Shandong Branch of People's Insurance Company of China, Industrial and Commercial Bank of China Limited Shandong Branch, Standard Chartered Bank Jinan Branch, Jinan Rural Commercial Bank Co., Ltd., Qingdao Bank Co., Ltd. Jinan Branch, Jiyang Rural Commercial Bank Co., Ltd., Qingdao Huangdao Development (Group) Co., Ltd., Qingdao West Coast New Area Fusion Holdings Co., Ltd., Weifang Infrastructure Construction Investment and Development Co., Ltd. and other units. Contact number: 15614682525 E-mail: eroscxt@163.com</中华人民共和国公司法>

2021-11-26

Viewpoint... "Discussion of the period of exercise of mortgage."

Problem Background On May 2, 2017, Company A and Bank B signed the Liquidity Loan Contract, agreeing that Bank B would grant it a loan of $50 million for a period of 12 months. On the same day, the two parties signed the Maximum Mortgage Contract, which agreed that Company A would provide a mortgage guarantee for the claim with the property in its name and register the mortgage. When the loan matures, Company A is unable to repay the loan and Bank B takes it to court. On July 20, 2018, under the mediation of the court, the two parties reached a settlement, agreeing that Company A will repay Bank B 50 million yuan of principal and interest within three days after the effective date of the mediation agreement, and the case acceptance fee will be borne by Company A. Later, because Company A did not fulfill its repayment obligations, Bank B applied to the People's Court for enforcement based on the effective civil mediation, and the court ruled on September 23, 2020 to terminate the enforcement procedure. In this case, the court's mediation did not confirm the mortgage enjoyed by the bank, so did Bank B lose the mortgage, or what remedy was sought to realize the mortgage? The lack of confirmation of the mortgage right in the judgment and mediation statement 1. in force does not result in the loss of the mortgage right of the mortgagee. First of all, the "Maximum Mortgage Contract" signed by Company A and Bank B clearly stipulates the mortgage matters, and goes through the mortgage registration procedures to obtain the other title certificate of the property involved in the case. In accordance with the provisions of Article 172 of the Civil Code, the mortgage is established in accordance with the law. Secondly, according to Article 140 of the Civil Code, the meaning of silence can only have legal effect if the law clearly stipulates and the parties have special agreement. Although the civil mediation statement does not state that Bank B has a mortgage on the property involved in the case, nor does it state that Bank B waives the mortgage on the property involved in the case. Bank B has not expressly renounced the mortgage, and has not canceled the mortgage registration, in the absence of an express agreement or no special provisions of the law, it is not appropriate to presume that Bank B has renounced its rights, so Bank B still enjoys the mortgage on the property involved in the case. (Reference Case:(2021) Supreme Famin Shen No. 1134) Period of exercise of the mortgage of 2. B Bank Article 419 of the Civil Code stipulates that the mortgagee shall exercise the mortgage right during the limitation period of the main claim. As we all know, the statute of limitations system was established to urge civil rights holders to actively claim their rights within the statutory period, and if the statute of limitations expires and the principal claim loses the protection of legal coercion, the debtor can defend it. The statute of limitations system does not apply to security interests, as a security right and a mortgage from the right, can only be exercised during the statute of limitations for the principal claim, I .e., during the exercise of the mortgage. In the light of the above background, the problems during the exercise of the mortgage in judicial practice are classified as follows: Scenario 1: Bank B fails to sue this claim during the statute of limitations for the principal claim. The creditor did not bring a lawsuit against the claim within the limitation period of the main claim, and when the limitation period expires, the claim becomes a natural debt, that is, it loses the protection of legal force and is a debt that cannot be requested for enforcement. If Company A defends this, the court does not protect the claim. A mortgage is a subordinate right, subordinate to the principal claim, in which case the mortgage of Bank B is not protected by law under Article 419 of the Civil Code. If the mortgage registration of Bank B continues to be protected, it loses its legal basis. Therefore, Company A may request the registration of the cancellation of the mortgage in accordance with Article 59 of the Minutes of the National Court's Civil and Commercial Trial Work Conference. Scenario 2: Bank B files a lawsuit against the principal claim during the statute of limitations for the principal claim, fails to apply for confirmation of the mortgage, and fails to apply for enforcement during the enforcement period after the judgment becomes effective. Before the expiration of the statute of limitations for the principal creditor's rights, Bank B only filed a principal creditor's rights lawsuit against Company A, and did not request the court to confirm its mortgage right. After the judgment or mediation of the people's court, it did not apply for execution of the debtor within the time limit for application for execution stipulated in the Civil Procedure Law. If it claims to exercise the mortgage right to the mortgagor, the people's court will not support it. The view in the Judicial Interpretation and Application of the Guarantee System of the Civil Code of the Supreme People's Court: "Since the current law of our country has modified the period of application for enforcement, even if the claim has been confirmed by the people's court, it will no longer be protected by the people's court because the period of limitation for enforcement has passed. Since the principal claim is no longer protected by the people's court, the security interest subordinate to the principal claim is naturally no longer protected by the people's court." In such cases, the period during which the mortgagee exercises the mortgage is up to the time when the statute of limitations for enforcement of the principal claim judgment has elapsed. Scenario 3: Bank B only filed a lawsuit against the principal claim during the statute of limitations for the principal claim, did not apply for confirmation of the mortgage, applied for enforcement within the statute of limitations after the judgment of the principal claim came into effect, and then reached a settlement agreement with Company A under court mediation, withdrew the application for enforcement, and the court ruled to terminate the enforcement proceedings in the case. In this case, the court ruled that the termination of the case was due to the request to withdraw the execution application after the applicant and the person subject to execution reached a settlement agreement. According to the law, the termination of the execution of the case means the end of the execution procedure, which is different from the termination of the execution procedure. In principle, after the execution of the case is concluded, the execution procedure cannot be started again. However, the "Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law" clearly stipulates that the circumstances in which the termination of execution can be resumed are limited to two types of situations, that is, "after the applicant and the person subject to execution have reached a settlement agreement, the people's court may decide to terminate the execution" and "terminate the execution due to the cancellation of the application". In the case of termination of execution under the above two circumstances, if the party subject to execution fails to perform the execution of the settlement agreement, the person applying for execution may apply to the enforcement court to resume the execution of the original effective legal document, or file a lawsuit for the performance of the settlement agreement. It is worth noting that the application for resumption of enforcement should be restricted by the provisions on the limitation of enforcement in the Civil procedure Law and judicial interpretation. (Reference Case:(2020) Supreme Law Enforcement No. 4) The view in the Supreme People's Court Civil Code Guarantee System Judicial Interpretation and Application: In trial practice, the only criterion for supporting the mortgagor is whether the statute of limitations for the principal claim has elapsed. As long as the statute of limitations period for the principal claim has not elapsed, the creditor's request should be supported. Of course, if the limitation period of the main claim expires and the creditor claims to exercise the mortgage, the people's court shall not support it. After the execution of the judgment has failed, the period of limitation of action shall be recalculated. The "failure of enforcement" here should be understood as the decision of the enforcement court to conclude the enforcement proceedings in this case on the judgment of the principal claim. Scenario 4: Bank B only filed a lawsuit against the principal claim during the statute of limitations for the principal claim, did not apply for confirmation of the mortgage, applied for enforcement within the statute of limitations after the judgment of the principal claim became effective, and then reached a settlement with Company A under court mediation, and the court ruled to terminate the enforcement proceedings. Issued by the Supreme People's Court<关于执行案件立案、结案若干问题的意见>(Fa [2014] No. 26) ", the people's court ruled that after the termination of the execution procedure, if it finds that the person subject to execution has property, it may resume execution on the application of the person applying for execution or ex officio. If the executor applies for the resumption of execution, it shall not be subject to the time limit for applying for execution. In this case, since the principal claim judgment has entered into force and Bank B has applied for enforcement within the statutory time limit, there is no question of interruption, suspension or extension of the statute of limitations for the principal claim. As a subordinate right, there is no question of interruption, suspension or extension during the exercise of the mortgage. Bank B may, when applying for the resumption of enforcement proceedings, claim the exercise of the mortgage together with the enforcement court. Scenario 5: Bank B only filed a lawsuit against the principal claim during the statute of limitations for the principal claim, did not apply for confirmation of the mortgage, applied for enforcement within the statute of limitations after the judgment of the principal claim became effective, reached a settlement with Company A under court mediation, and the court ruled to terminate the enforcement proceedings. Company A then files for bankruptcy and liquidation, and Bank B files a claim with the administrator within the statutory period. Although Company A applied to the people's court for bankruptcy liquidation in the course of execution, Bank B, with an effective judgment, declared the claim to the bankruptcy administrator during the period of filing the claim as stipulated by law, and the administrator shall confirm that the claim is a claim secured by property. The period of declaration of claims is also the period of legal protection, because Bank B exercises the main claim within the period prescribed by law, so the main claim is still protected by law, and accordingly, its mortgage should also be protected by law. Trial point of view: mortgage, as a kind of security right, does not apply the statute of limitations system. However, in order to prevent the mortgagee from exercising the mortgage right and give full play to the economic utility of the mortgaged property, the property law stipulates that the mortgagee should exercise the mortgage right within the limitation period of the main creditor's right, which is to make it clear that the mortgagee should exercise the mortgage right within the period when the main creditor's right is protected by law. The period of protection of the law, before the main claim has not been determined by the effective decision, the main claim limitation period. When the main claim is determined by the effective decision of the proceedings, at this time the main claim is not the statute of limitations, but after the decision takes effect, the main claim may not be realized, in the case of the debtor's failure to take the initiative to perform, there is still the problem of enforcement. As long as the parties apply for enforcement against the debtor during the period of application for enforcement, with reference to Article 202 of the Property Law, the mortgagee shall be deemed to have exercised his rights during the period during which the principal claim is protected by law, and the rights of the mortgagee shall still be protected. In other words, after the principal claim has been confirmed by the effective decision, the period during which the principal claim is protected by law at this time is no longer the limitation period, but the period during which the application is made. Similarly, in the case of the debtor's bankruptcy, the period during which the principal claim is protected by law is the period during which the claim is declared under the law. (Reference Case:(2021) Supreme Famin No. 154) In summary, although the law provides for the corresponding protection of the creditor's mortgage, but as the right holder, should still actively claim the right, to avoid exceeding the statutory protection period, otherwise will bear the adverse consequences of the loss of rights.</关于执行案件立案、结案若干问题的意见>

2021-11-26

Real estate perspective: Is punitive damages in the Consumer Rights Protection Law applicable to commercial housing sales disputes?

Case Introduction Lu mou and Liang mou bought a shop from a real estate company in Weihai. when the company sold the shop involved in the case, they informed Liang mou and Lu mou that the house involved in the case was on the first floor and shared a parcel area of 27910 square meters. they agreed in the commercial housing presale contract that the shared parcel was weigao guoyong (2012) no 40, and the parcel area use right was 27910 square meters, which was included in the floor area ratio and was normal property right. However, the real estate registration certificate of the shop involved in the case shows that the common parcel area is 6734 square meters, and the floor 1 (underground right type: underground space construction land use right) is located. Lu mou and Liang mou believe that the company knows that the shop involved in the case belongs to the semi-basement and is a supporting facility room, which is not included in the floor area ratio, and deliberately sells the shop involved in the case to the normal floor area ratio commercial room, which is fraudulent sales, the company is required to be liable for damages in accordance with the provisions of the Consumer Rights Protection Law. focus of controversy Whether the legal relationship of commercial housing sales contract is regulated by the Law on the Protection of Consumer Rights and Interests court decision The court of second instance held that Article 2 of the law on the protection of consumers' rights and interests stipulates that if consumers need to purchase, use goods or receive services for daily consumption, their rights and interests shall be protected by this law; if there are no provisions in this law, they shall be protected by other relevant laws and regulations. The commercial housing presale contract and supplementary agreement clearly stipulate that the use of the shop involved in the case is commercial. Liang and Lu entrust the commercial company designated by the company to operate and manage the shop. Therefore, the shop involved in the case is used for operation rather than living consumption needs. Liang and Lu did not purchase the shop involved in the case based on living consumption needs, and were not "consumers" stipulated in the Consumer Rights Protection Law ", therefore, the legal relationship of the commercial housing presale contract involved in the case is not adjusted by the Consumer Rights Protection Law. And for the legal application of commercial housing presale contract disputes, the Supreme People's Court has formulated a special judicial interpretation, and the relevant provisions of the "Judicial Interpretation of Commercial Housing Sales" should be applied in this case. Lawyer's opinion Our lawyers believe that the punitive damages in the Consumer Rights Protection Law should not be applied to commercial housing sales disputes. First, Article 2 of the Law on the Protection of Consumer Rights and Interests "Consumers need to purchase, use commodities or receive services for their daily consumption, and their rights and interests are protected by this law..." According to the legislative principles and purposes of the Law on the Protection of Consumer Rights and Interests, the "commodities" in this article refer to the commodities that belong to "movable property" for daily consumption, and commercial housing as real estate is a special property, it does not fall within the scope of "goods" adjusted by the Consumer Rights Protection Law. The "product" mentioned in the Product Quality Law, which is at the same level and of the same type as the Consumer Rights Protection Law, does not include commercial housing, etc. In terms of the scope of adjustment, the concept of "commodity" used in the Consumer Rights Protection Law is the same as the concept of "product" used in the Product Quality Law, and disputes over the sale of commercial housing do not apply to the Product Quality Law, the Consumer Protection Act should also not apply. Second, the price of commercial housing is expensive, and it is often millions. The application of the "Consumer Rights Protection Law", especially the application of Article 55 of the "Consumer Rights Protection Law", "If a business operator commits fraudulent acts in providing goods or services, it shall be in accordance with the consumer The request increases the compensation for the losses suffered, increasing the amount of compensation is three times the price of the consumer's purchase of goods or the cost of receiving services." Dealing with commercial housing sales disputes will inevitably lead to an imbalance in the rights and obligations of the operator and the consumer, leading to a serious tilt in the interests of both parties, which violates the principle of fairness and justice. Third, with the continuous improvement of my country's real estate registration system, the implementation of the model text of the commercial housing sales contract, and the requirements of the online signing and filing system, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes (2020 Amendment) The original judicial interpretation of Articles 8 and 9 of the commercial housing sales contract in which the seller maliciously breaches and frauds, resulting in the buyer's inability to obtain the five situations, therefore, for the breach of contract in the sale of commercial housing, the original punitive damages that "the seller can be requested to bear no more than double the paid purchase price" are no longer applicable, and the breach of contract in the sale of commercial housing can be resolved by applying the relevant legal provisions and judicial interpretations of the contract, such as the contract code of the Civil Code and the interpretation of the Supreme People's Court on the application of laws in the trial of commercial housing sales contract disputes, therefore, punitive damages in the Consumer Protection Law should not be applied when disputes over the sale of commercial housing arise. Related Cases (I) Yuan Mou and Changzhou Real Estate Development Co., Ltd. Commercial Housing presale Contract Dispute- (2020) Su 04 Min Shen No. 91 The "Consumer Rights Protection Law" stipulates that if operators provide goods or services fraudulently, consumers can claim punitive damages, but it does not stipulate whether the sale of commercial housing falls within the scope of the law. Punitive damages for the sale of commercial housing are not typical product fraud and service fraud, but mainly because the seller intentionally or violates the principle of good faith, resulting in the subject matter can not be delivered or the subject matter has some defects, or deliberately conceal the true situation, deceive consumers. The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes clearly stipulates the responsibility of developers for fraudulent acts. Therefore, the judicial interpretation should be applied to cases involving fraud in commercial housing sales disputes. Provisions. Therefore, Yuan argued that the provisions of punitive damages in the the People's Republic of China Consumer Rights and interests Protection Law should be applied in this case, which cannot be established in accordance with the law. (II) Yang Mou and Chongqing Real Estate Development Co., Ltd. Housing Purchase and Sales Contract Dispute- (2020) Yu 01 Min Zhong No. 4136 In this case, the two parties are in a contract for the sale of commercial housing, and Yang also applied for the termination of the contract. In this case, the relevant laws and regulations and judicial interpretation of the contract for the sale of commercial housing shall apply. Article 8 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts stipulates: "In case of any of the following circumstances, the purpose of the commercial housing sales contract cannot be achieved, the buyer who cannot obtain the house may request to terminate the contract, return the paid house purchase price and interest, and compensate for losses, and may request the seller to bear no more than double the payment of the purchase price: (a) after the conclusion of the contract for the sale of commercial housing, the seller did not inform the buyer and mortgaged the house to a third party; (II) after the conclusion of the contract for the sale of commercial housing, the seller sold the house to a third party. "Article 9 stipulates:" When the seller enters into a commercial housing sales contract, if one of the following circumstances occurs, resulting in the contract being invalid or canceled or terminated, the buyer may request the return of the paid house purchase price and interest, compensation for losses, and may request the seller to bear the liability of not more than double the paid house purchase price: (1) deliberately concealing the fact that the commercial housing presale license certificate has not been obtained or providing false commercial housing presale license certificate; (II) deliberately conceal the fact that the house sold has been mortgaged; (III) deliberately conceal the fact that the house sold has been sold to a third party or that the house has been resettled for demolition compensation. "Accordingly, in the commercial housing sales contract relationship, the buyer requires the seller to bear the punitive compensation liability, should comply with one of the aforementioned provisions. Yang asked the developer to bear punitive liability on the grounds that the developer would sell the parking space that was judicially seized to it, which constituted fraud. However, when the two parties signed the "parking space confirmation letter", the developer did not have one of the circumstances stipulated in the judicial interpretation, and Yang's claim was not supported by the court.

2021-11-26

In the case of the case, the insurance company shall bear the insurance liability if it knows that the insured meets the deductible.

[brief case]] A machinery company leased the wheel loader it purchased to a company in Zhanjiang Port, and at the request of a company in Zhanjiang Port, insured the Guangzhou branch of a financial insurance company with third party liability insurance. When an employee of a machinery company communicated with a salesman of a financial insurance company Guangzhou branch about the insurance, he informed that the equipment was used for rental and the customer specified the amount of insurance compensation. Later, because the loader caused the death of others in the rental process, a machinery company to a financial insurance company Guangzhou branch claim. The Guangzhou branch of a financial insurance company refused to pay compensation on the grounds that the contract stipulated that the subject matter of insurance caused liability for damages to a third party during the lease and loan period, and the insurer was not responsible for compensation. The people's court held that the Guangzhou branch of a financial insurance company, knowing that the loader involved in the case was leased, that is, in line with the deductible, still underwrote it, and did not fulfill the obligation to prompt the exemption, and should be regarded as agreeing to compensate the third party for the damage caused by the lessee's lease of the loader involved in the case. focus of controversy] Whether the Guangzhou branch of a financial insurance company should bear the responsibility of paying insurance benefits. The court of first instance held that] A financial insurance company Guangzhou branch issued a "comprehensive insurance policy for engineering machinery and equipment" to a machinery company, and the legal relationship between the two parties was established. According to Article 16 of the the People's Republic of China Insurance Law, an insurance accident refers to an accident within the scope of insurance liability as stipulated in the insurance contract. In this case, a machinery company and a financial insurance company Guangzhou branch have a dispute over whether the accident involved constitutes an insurance accident stipulated in the comprehensive insurance of construction machinery and equipment plus the third party liability insurance clause. The main points of the dispute are as follows: 1. the right boundary of the three liability insurance of construction machinery and equipment; 2. whether a machinery company has fulfilled the obligation of disclosure of qualified insured to Guangzhou branch of a financial insurance company; 3. whether a machinery company has the obligation to pay work injury claims to the actual user of construction machinery. 1. on the right boundary of the three liability insurance of construction machinery and equipment. The "People's Property Insurance Company of China Construction Machinery and Equipment Comprehensive Insurance Additional Third Party Liability Insurance Clauses" stipulates that during the insurance period, the insured or its permitted user has an accident in the process of using the subject matter of the insurance, causing a third party If the party suffers personal injury or death or direct property damage, the insured shall be liable for economic compensation in accordance with the law, and the insurer shall be responsible for compensation in accordance with the additional insurance contract. In the following cases, the insurer shall not be liable for compensation for damages to third parties caused by the subject matter of insurance for any reason: during the period of theft, robbery, robbery, rental, loan, or transfer to another person. According to the second paragraph of Article 17 of the the People's Republic of China Insurance Law, for the clauses in the insurance contract that exempt the insurer from liability, the insurer shall, when concluding the contract, make provisions sufficient to attract the attention of the applicant on the insurance policy, insurance policy or other insurance certificates, and make a clear explanation of the content of the clause to the applicant in written or oral form; if there is no prompt or clear explanation, the clause shall have no effect. In this case, a machinery company claimed that the Guangzhou branch of a financial insurance company refused to compensate because of the insurance accident of loader 39 involved during the rental period. since the Guangzhou branch of a financial insurance company had no proof to prove that it had served the additional three insurance clauses for construction machinery and equipment to a machinery company, the Guangzhou branch of a financial insurance company had no right to refuse to compensate on the grounds of applying the exemption clause. However, in the absence of a reminder or express statement of the exemption clause under the aforementioned law, only the exemption clause does not have legal effect, and the definition of the concept of insurance accident and the boundary of rights in the insurance clause is not included here. Therefore, the exemption clause is not applicable in this case, and whether the Guangzhou branch of a financial insurance company makes a claim to a machinery company depends on whether the accident in question constitutes an insurance accident as defined in the "Comprehensive Insurance Clause for Construction Machinery and Equipment of the people's property Insurance Company of China. 2. the question of whether a machinery company has fulfilled its disclosure obligations to the Guangzhou branch of a financial insurance company. The insured involved in the case was a machinery company, and the actual user of the No. 39 loader involved and the person responsible for the accident were both a company in Zhanjiang Port. A machinery company claimed to have informed the Guangzhou branch of a financial insurance company that "several loaders to be insured are for rental use" and submitted a "notarial certificate" to the court of first instance, which confirmed the fact. Although Guangzhou Branch of a financial insurance company knows that the loader No. 39 involved in the case is for rental use, on the premise that the owner and the user can be the insured, the insurance policy issued by Guangzhou Branch of a financial insurance company shall be subject to the intention of a machinery company. A machinery company has not proved that it has made a clear intention to Guangzhou Branch of a financial insurance company to use a company in Zhanjiang Port as the insured, no evidence was submitted to prove that changes were made to the insured after the insurance policy was issued. It shall be deemed that a machinery company has not fully fulfilled its obligations of information disclosure and clear notification, and the liability arising therefrom shall be borne by a machinery company of the insured. According to daily life experience and trading habits, the insured should be independently confirmed by the insured. The insured does not take the initiative to propose, and the insurer has no way to know. A machinery company claims that the insured is determined by a financial insurance company Guangzhou Branch in accordance with relevant laws and regulations. The claim that it is not determined by the personal wishes of a machinery company lacks factual basis, and the court of first instance will not accept it. 3. on the question of whether a machinery company should settle claims to the actual user of loader 39 involved in the case. According to the "Road Traffic Accident Investigation Report", Chen Mou, the driver of loader 39 involved in the case, did not put up the funnel belt feeding and guiding pipe in advance according to the "Safety Technical Operation Regulations for 404 Berth Head Moving Elevated Hopper" during the process of driving the loader to move the funnel, causing the guiding pipe to collide with the cement frame of the conveyor belt nearby, and the guiding pipe fell off and hit the commander, causing the safety accident of the death of the branch. There is a direct legal causal relationship between Chen's illegal operation and Zhi's injury and death. The drainage pipe of loader 39 involved in the case is only the instrumental motivation of Zhi's death. The substantive motivation lies in Chen's negligence and illegal operation. In production, he failed to fulfill the duty of careful attention and the responsibility of ensuring the safety of others' lives, and he was responsible for the death of Zhi. From the perspective that Chen Mou is a staff member of a labor service company stationed in a company in Zhanjiang Port in the form of labor dispatch and Zhi Mou is a staff member of a company in Zhanjiang Port, in accordance with the provisions of the second paragraph of Article 34 of the the People's Republic of China Tort Liability Law (now Article 191 of the Civil Code), during labor dispatch, the dispatched staff member causes damage to others due to the performance of work tasks, the employer receiving the labor dispatch shall bear the tort liability; in accordance with the first paragraph of Article 11 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases, the employer shall be liable for compensation if the employee suffers personal injury in the course of employment activities. Therefore, a company in Zhanjiang Port, whether as an employer receiving labor dispatch or an employer in employment activities, shall bear tort liability for the legal consequences of the death of a work-related injury, which is the nature of the employer's liability rather than the "third party liability" in the third party liability insurance ". According to the fourth paragraph of Article 65 of the the People's Republic of China Insurance Law, liability insurance refers to insurance that is the subject of insurance based on the liability of the insured to a third party in accordance with the law. The aforementioned "third party" refers to the subject other than the insured and its related parties as stipulated in the liability insurance policy, which has no direct related interest and has the right to claim compensation from the insured. In the practice of liability insurance, the boundaries of insurance according to liability are very clear, and the liability of employees for personal injury belongs to the scope of employer liability insurance rather than third party liability insurance. In this case, a company in Zhanjiang Port is not the insured involved. According to the Agreement on Renewing the Lease of Four Longgong Long Arm Loaders signed between a machinery company and a company in Zhanjiang Port, a machinery company only needs to bear the third party liability insurance obligation with the purchase amount of not less than 200000 yuan. In addition, there is no other legal or agreed compensation obligation to a company in Zhanjiang Port, A machinery company claimed that the evidence of the obligation to pay compensation for the death of a third party caused by the loading vehicle within the scope of the three liability insurance for the construction machinery and equipment involved in the case was insufficient, and the court of first instance did not accept it. To sum up, the accident involved does not constitute a liability insurance accident for construction machinery and equipment. A machinery company's claim for compensation of 500000 yuan and interest from a financial insurance company Guangzhou Branch lacks factual and legal basis, and the court of first instance will not support it. The court of second instance held that] The focus of the dispute in the second instance of this case is whether the Guangzhou branch of a financial insurance company should bear the responsibility of paying insurance benefits. First of all, although the insured of the third party liability insurance contained in the insurance policy is a machinery company, but a machinery company has clearly informed the Guangzhou branch of a financial insurance company that the loader involved is for rental use, and also clearly informed that it is insured at the request of the customer, therefore, a financial insurance company Guangzhou branch is in the knowledge that the case involved in the loader is not a machinery company's actual use of the circumstances still agreed to a machinery company as the insured to be insured. However, from the "China People's Property Insurance Co., Ltd. Construction Machinery and Equipment Comprehensive Insurance Additional Third Party Liability Insurance Clause" submitted by a financial insurance company Guangzhou Branch, it can be seen that the insurance liability stipulates that "the insured shall bear the economic liability according to law, and the insurer shall be responsible for compensation according to the agreement of the additional insurance contract", and stipulates that the insurance subject is liable for damages to the third party during the lease and loan period, the insurer is not responsible for compensation. If, in accordance with the terms of the insurance, a machinery company, although insured, but ultimately can not get any compensation, this situation is obviously contrary to the original intention of a machinery company to insure third party liability insurance. Guangzhou Branch of a financial insurance company did not prompt a machinery company in good faith, but after the accident, it refused to pay compensation on the grounds of equipment rental, which was against integrity. Therefore, the Guangzhou branch of a financial insurance company, knowing that the loader involved in the case was leased, should be regarded as agreeing to compensate for the damage caused to a third party during the lease of the loader involved in the case. Secondly, a machinery company did not sign the insurance policy at the time of insurance, and a financial insurance company Guangzhou branch did not submit evidence to prove that it had served the insurance terms of third party liability insurance to a machinery company. Therefore, the Guangzhou branch of a financial insurance company did not inform a machinery company of the contents of the contract and the exemption clause, and did not fulfill the obligation of prompting. According to the provisions of the second paragraph of Article 17 of the the People's Republic of China Insurance Law, the clause exempting the Guangzhou branch of a financial insurance company from liability has no effect on a machinery company. Therefore, a financial insurance company Guangzhou branch claims not to bear the liability, lack of contract basis. Thirdly, according to the agreement on renewing the lease of four long arm loaders signed by a machinery company and a company in Zhanjiang port and the statement made by a machinery company when it insured the Guangzhou branch of a financial insurance company, a machinery company is responsible for handling the third party liability insurance for the loaders involved in the rental case and providing a copy of the insurance contract for the record. The purpose of this agreement between a company in Zhanjiang Port and a machinery company is to reduce losses by settling claims to the insurance company in the event of an accident involving a loader, otherwise the agreement will have no practical significance. As a machinery company is insured with a limit of 500000 yuan for third party liability insurance, a company in Zhanjiang port, after compensating the family members of the deceased, claimed the insurance compensation amount of 500000 yuan to a machinery company, which is in line with the contract purpose of the agreement on renewing the lease of four long arm loaders for third party liability insurance. A company in Zhanjiang Port has received compensation from a machinery company through rent deduction and said that a machinery company has claimed compensation from the Guangzhou branch of a financial insurance company. Therefore, it should be determined that a machinery company because of the accident to bear the economic liability, a machinery company has insurance interests, can claim insurance money to a financial insurance company Guangzhou branch. Lawyer Advice] In this case, the court held that the insurance company did not prompt the insured in good faith to meet a certain exemption reason when accepting the insurance, but refused to pay compensation on the basis of the exemption after the occurrence of the insurance accident, which was obviously contrary to good faith, and finally ruled that the insurance company should bear the insurance liability. Through this case, it is recommended that the insurance company perform its statutory obligations when accepting insurance, and the business management personnel should have a certain degree of professional sensitivity and careful review of the relevant information stated by the policyholder, especially in the case that the subject matter of the insurance stated by the policyholder is obviously In accordance with the exemption of the insurance contract, the policyholder should be promptly prompted and clearly explained, and attention should be paid to the retention of relevant evidence during the process, to prevent insurance claims disputes and adverse risks in the case of legal deductibles.

2021-11-25

Viewpoint | Carrier and Path of Enterprise Compliance Construction

As a legal person, the behavior of an enterprise depends on the behavior of the head and staff of the enterprise, and corporate compliance needs to be achieved through the behavior of the head and staff of the enterprise. The Guidelines for Compliance Management of Central Enterprises (for Trial Implementation) clearly points out that compliance management is an organized and planned management activity aimed at the operation and management behavior of enterprises and employees. In practice, the behavior of the person in charge and the staff of the enterprise is mainly guided and regulated by the role of the actor, the management system and the operation system. The construction of enterprise compliance system should take the actor's role, management system and operation system as the carrier, and build a compliance management system of enterprise organization system, management system system and workflow system. Construction of Compliance Organization System in 1. Enterprises The enterprise organization system provides organizational guarantee for the enterprise compliance construction, and the enterprise organization setting should strengthen the content of compliance construction and clarify the compliance responsibilities. The construction of enterprise organization system should focus on the following aspects: First, clarify the compliance management responsibilities of the directors and supervisors, and build a compliance leadership system. The articles of association are the basic norms of corporate governance, and the leading role of the articles of association in corporate compliance management should be brought into full play. Within the framework of the articles of association, a corporate governance structure with mutual cooperation, mutual restriction and clear division of labor for corporate compliance decision-making, implementation and supervision should be formed. At the same time, a system of compliance management leaders and compliance committees should be established to improve the professional level and ability of compliance. Second, corporate compliance should go deep into the "front line" of business and serve business operations. Operation is the foundation of the enterprise, compliance should be closely around the business operation, fully reflect the practicality of compliance, that is, compliance management responsibilities to the enterprise's business departments, clear business departments responsible for daily compliance management, in accordance with compliance requirements to carry out business. Third, establish institutions, clarify responsibilities, and provide organizational guarantees for compliance construction. Set up a compliance department or clarify a compliance lead department to take the lead in organizing, coordinating and supervising compliance management. At the same time, qualified enterprises can hire compliance consultants to give full play to their compliance practice advantages and jointly provide compliance support for enterprises. Fourth, cultivate compliance awareness and establish a good compliance atmosphere. Compliance awareness is the soft power of compliance and the fundamental guarantee for the implementation of all contents of the compliance system. Enterprises should closely integrate practice and carry out all-round and multi-dimensional compliance training for all employees to enhance their compliance awareness. Construction of Compliance System of 2. Enterprises The enterprise system is the code of conduct for the person in charge and staff of an enterprise, which directly affects the behavior of the enterprise. The construction of the enterprise system is the top priority of the construction of the enterprise compliance system. Enterprise compliance should take the construction of the enterprise system as the starting point to provide system guarantee for enterprise compliance. The compliance construction of enterprise system should focus on the following aspects: First, pay attention to the compliance of the enterprise system. The enterprise system is the main line of enterprise management, and the compliance of the system itself is the premise and basis of enterprise behavior compliance. The enterprise system should comply with laws and regulations, regulatory provisions, industry standards and enterprise articles of association, rules and regulations, as well as international treaties, rules and other provisions. Second, enterprises should establish a special compliance system to provide a quasi-search for compliance construction. The special compliance system is the basis for the compliance work of enterprises, which mainly includes the legality audit system of major matters, the pre-judgment system of major risks, and the risk disposal and management system. Third, around the operation, the establishment of business compliance business guidelines. According to the enterprise business, according to the compliance requirements to improve the business management system, the development of relevant business guidelines, according to the line of business, the development of its supporting compliance guidelines, so that front-line business personnel how to regulate compliance to carry out related business, and according to business development and regulatory needs to update the business guidelines in a timely manner. Construction of Compliance Operation System for 3. Enterprises The enterprise compliance system is a project in which all employees of the enterprise participate, all departments cooperate closely and cooperate with each other. The construction of the enterprise compliance system should embed compliance content in the construction of the enterprise operation system: First, compliance management will be carried out throughout the whole process of enterprise behavior, and a multi-departmental collaborative compliance operation system will be established. Compliance is inseparable from enterprise operation and enterprise management. Compliance management should run through the whole process of enterprise decision-making, implementation and supervision. Compliance operation requires the linkage and cooperation of multiple departments. Compliance work should give full play to the synergy effect of various departments and coordinate with enterprise law, risk, internal control, audit, supervision and other work. At the same time, strengthen the process control of business decision-making, that is, implement the "three important and one large" decision-making system, and refine the decision-making matters and authority at all levels. Second, establish a sound compliance control mechanism to give full play to the front-end effectiveness of compliance review and risk prevention and control. Compliance review is a key link in the compliance guarantee system, and the construction of a compliance review mechanism can effectively play the role of a "firewall" for compliance management. The focus of compliance control should be to improve the system, decision-making, contract, operation compliance review, clear without review can not be implemented. Build a risk management system that combines identification and prevention with response and disposal, strengthen the construction of enterprise risk identification and risk response systems, and effectively prevent and manage risks. Third, optimize the compliance operation system and establish a multi-level compliance management structure. Enterprises should give full play to the main responsibility of compliance management of business departments, compliance management departments, internal audit departments and external compliance consultants, and establish a multi-level compliance operation system. The business department performs the first line of defense for compliance management and proactively conducts daily compliance control; the compliance management department performs the second line of defense for compliance management, provides compliance support to the business department, and conducts compliance audits on specific issues; the internal audit department performs the third line of defense for compliance management and audits compliance management; the external compliance consultant performs the fourth line of defense for compliance management and conducts compliance audits on matters required by the enterprise. Fourth, improve the construction of the compliance guarantee system and establish a reward and punishment incentive and supervision mechanism. The guarantee system is an important part of the compliance operation system, and it is necessary to give full play to the enterprise reward and punishment mechanism to regulate and restrict enterprise behavior. Accountability and assessment and evaluation together constitute a compliance management guarantee mechanism, through the assessment, reward and punishment system to encourage or urge enterprises and employees to perform compliance duties, to ensure compliance and efficient operation. 4. epilogue Corporate compliance construction is a key link to enhance the modernization of corporate governance capabilities, compliance should not only stay at the institutional level, but also need the organic convergence of ideas and practices, corporate compliance organization system, compliance management system, compliance work operation system trinity, mutual convergence, mutual cooperation. Only by integrating compliance concepts and systems into it, and forming an all-round, multi-field, and in-depth compliance, can the due effectiveness of corporate compliance be truly brought into play and the rapid development of enterprises can be promoted and guaranteed.

2021-11-24

Viewpoint | Discussion on the governance structure of for-profit private schools

Introduction Article 1 of the notice on the administration of name registration of for-profit private schools (hereinafter referred to as the notice) (No. 2017 156) stipulates that private schools shall be registered as limited liability companies or joint stock limited companies in accordance with the relevant provisions of the the People's Republic of China company law and the the People's Republic of China law on the promotion of private education, Its name shall comply with the provisions of relevant laws and regulations on company registration management and education. Accordingly, for-profit private schools have the formal characteristics of the company. The purpose of this paper is to explore the governance structure of for-profit private schools, so as to clarify the similarities and differences between the governance structure of for-profit private schools and general companies. Text The nature of 1. for-profit private schools is for-profit legal persons. According to the provisions of Article 1 of the notice, for-profit private schools may be registered as limited liability companies or joint stock limited companies. Combined with the classification of legal persons in Chapter III of the Civil Code, the nature of for-profit private schools should be for-profit legal persons. 2. for-profit private schools are similar to the general corporate governance structure. The Governance Structure of (I) for-profit Private Schools Article 20 of the Law on the Promotion of Private Schools stipulates that private schools shall set up school councils, boards of directors or other forms of decision-making bodies and establish corresponding supervision mechanisms ...... Article 21 of the Law on the Promotion of Private Education stipulates that school councils or boards of directors shall be composed of organizers or their representatives, principals, faculty representatives and other personnel ...... Article 22 of the Law on the Promotion of Private Education stipulates that, the school council or board of directors shall exercise the following functions and powers: (1) dismiss or dismiss the principal ...... Article 23 of the Law on the Promotion of Private Education stipulates that the legal representative of a private school shall be the director, chairman or principal. The twenty-fifth of the Law on the Promotion of Private Education stipulates that the principal of a private school is responsible for the education, teaching and administration of the school and exercises the following functions and powers: (1) to implement the decisions of the school council, board of directors or other decision-making bodies ...... Accordingly, the governance structure of for-profit private schools consists of the council (board of directors), the principal and the supervisory body. The council (board of directors) is the decision-making body of the school, which makes decisions on the education, teaching and administrative matters of the school. The principal is the executive body of the school, responsible for the daily work of the school and the implementation of the decisions of the decision-making body; however, its supervisory body is not composed of school employees, but It is composed of other administrative departments such as the Education Bureau. (II) the general corporate governance structure Article 37 of the Company Law stipulates that the board of shareholders shall exercise the following functions and powers: (1) to decide the company's business policy and investment plan... Article 46 of the Company Law stipulates that the board of directors shall be responsible to the shareholders and exercise the following functions and powers: (1) to convene the board of shareholders and report its work to the board of shareholders... Article 53 of the Company Law stipulates that, the board of supervisors and companies without a board of supervisors exercise the following powers: (1) Check the company's finances... The company's governance structure is reflected in the division of labor and coordination between the shareholders (large) meeting, the board of directors and the board of supervisors. The shareholders' (general) meeting is the authority of the company, which determines the company's business strategy and major policies. The board of directors is the executive body of the company, responsible to the shareholders of the company, responsible for formulating and implementing specific business plans, and responsible for the daily management and operation of the company. The board of supervisors is the supervisory body of the company, which is responsible for supervising the business behavior of the company and its directors, supervisors and senior managers. This division of labor within the company is also the optimal configuration of the modern corporate governance structure, and the "three meetings" cooperate with each other to achieve the company's profit-making goals. Comparative Analysis of (III) for-profit Private Schools and General Corporate Governance Structure As shown in the figure, the company is adjusted by the Company Law, and its governance structure is reflected in the division of labor and coordination among the shareholders' (general) meeting, the board of directors and the board of supervisors. Compared with the general corporate governance structure, as a special company, the provisions of the corporate governance structure of for-profit private schools are found in the Law on the Promotion of Private Education, which is composed of the board of directors (or council), the principal, the education administration department and relevant departments. The two are similar in terms of decision-making and implementation agencies. However, in terms of supervision institutions, the Company Law is a typical civil and commercial law, which pays more attention to the autonomy of market subjects, and sets up a board of supervisors or an independent supervisor system for the internal supervision of the company; the Law on the Promotion of Private Education not only requires for-profit private schools to carry out market autonomy, because the field of education is related to the national talent reserve and citizens' right to education, so that there must be appropriate intervention by the state, therefore, the setting of the supervision body also reflects the characteristics of state intervention, which is externally supervised by the education administrative department and relevant departments. This kind of supervision is not only post-event supervision, but also embodied in all-round supervision and guidance before, during and after the event. Conclusion The governance structure of for-profit private schools has the characteristics of "company-like", but it is not exactly the same as the corporate governance structure. The specific performance is that due to the particularity of for-profit private schools, their supervision institutions reflect the characteristics of state intervention, and the education administrative departments and relevant departments carry out external supervision.

2021-11-24

Point of View... The signing and performance of the company contract.

Two basic principles that must be clear when signing a 1. contract (1) If the contract is not settled immediately, the parties must agree in writing. Because when such disputes arise, it is more conducive to both parties to clarify their responsibilities. The two basic purposes of the written agreement are: first, the two parties have determined their respective rights and obligations. However, some work units, in the economic exchanges for convenience or based on the trust of customers, and only by the other party's telegram, call, delivery notice, etc. to complete the delivery, if one party appears dishonest, it will be entangled, resulting in a contract dispute. At this time, because there is no way to prove or insufficient evidence, it is often impossible for one to file a case or to obtain the support of the people's court. (2) All provisions of the contract should be specific and detailed. The examination of the qualification of the subject of the contract signed by the 2.. According to different signatories, the following materials should be reviewed: (1) Signing by the legal representative of the other party in person 1. Whether the other party has a business license, and whether it is true, as well as the business scope and business period specified in the business license; 2. There is a difference between whether the legal representative recorded on the business license and the signatory on the contract; 3, the contractor's identity card and other relevant identity materials review; 4, the other party's business premises and whether normal operation, etc. (2) Signing by a specific salesman of the other party 1. Identification materials of the salesman; 2, the relationship between the salesman and the entrusting unit; 3. Can there be legal and efficient entrustment procedures between the salesman and the entrusting unit; 4. Whether the salesman has obtained the authorization of the entrusting unit, especially the authority of the entrusted agent and the time limit of the entrusted agent. Special precautions against unauthorized agents and ultra vires agents; 5. Whether the entrusted enterprise unit has a business license and whether it still exists at the time of signing the contract. In short, both parties must make specific and careful verification of the situation of the other party before signing. The method adopted can be through telephone consultation, letter, letter, door-to-door inspection, or to relevant government agencies to inquire about the situation. On the basis of some research, we can understand the actual situation of the other party more specifically, which is also the first step for both parties to sign a contract. Review of main contents of 3. contract Generally speaking, the specific content of the contract is jointly agreed by both parties, which mainly includes the following clauses: 1. The names and addresses of both parties; 2. The content of the target; 3. Total amount; 4. Quality; 5. Price or remuneration (payment time limit, payment method);6. Performance time limit, address and method; 7. Liability for breach of contract (economic loss compensation, liquidated damages accounting);8. Dispute resolution methods (people's courts, arbitration commissions). Under a more common service contract, each of the above-mentioned main provisions is described. (1) Review whether the name of the contract is consistent with the specific content of the contract. (2) The names and addresses of the parties in the contract. In addition to the strict examination procedures mentioned above for the subject qualification of the parties to the contract, it is critical that the name of the other party to the contract be carefully examined at the time of signing the contract whether it matches the official seal it has signed. (3) Do a good job in the review of the contract subject. From the service contract, to determine the scope of the service. For ambiguous commodity names, special explanations can be made to avoid unnecessary disputes. (4) Make the necessary approval of the total amount, price, amount, etc. of the subject matter. For service contracts, the service items and methods to be collected shall be determined. (5) The regulations and standards of product quality, as well as the requirements and time limit of the supplier for product quality management, must be clear and specific. In terms of service contracts, the specific provisions for the business they provide are clarified. (6) For the acceptance of the subject matter, the specific acceptance procedures should be strictly standardized. If the other party is requested to sign for it in time after receiving the subject matter, if there is any objection, we must inform us within the specified time limit, otherwise we shall be deemed to have completed the performance of the contract. (7) The method and time limit of payment. What kind of payment method is of vital importance to the realization of our creditor's rights, and a performance method with a relatively small risk factor should be selected according to the performance ability of the other party. When the buyer pays by bank check, it is inspected in accordance with the prescribed procedures to prevent the buyer from taking the subject matter with a false check. In order to avoid the opponent's false cheque, you can go directly to the drawer's bank to hold the cheque and record it, and you can verify that the cheque has been cashed. (8) The deposit clause can be clearly defined in the contract, which can effectively safeguard our interests. In addition, the terms of liability for breach of contract should be clearly defined in accordance with the principle of our advantage. The problems that should be paid attention to in the performance of the 4. contract. (1) The presence of a contract does not necessarily mean that the contract has been performed. At the end of the work, the other party should sign for the receipt. The receipt should be sealed as much as possible. If there is no seal, the authorized person should sign it. (2) If we have an obligation to pay and the other payee is inconsistent with the parties to the contract, the parties to the contract shall be asked to provide a description of the payment instructions. (3) If the other party asks a third party to pay us, the payer shall issue a payment voucher. (4) Pay attention to the retention of evidence in the performance of the contract. In the transaction, the transaction documents are not properly preserved. In the event of a dispute, due to incomplete documents, some of the transaction details have no evidence, and even some of the original documents are lost, leaving only a copy. Because the copy is easy to forge, the handwriting cannot be identified and cannot be independently used as evidence, it is difficult for the court to accept the copy when the other party does not admit it. (5) Close coordination between the business and finance departments to effectively collect accounts payable to avoid arrears exceeding the statute of limitations. (6) In case of disputes, attention should be paid to collecting and submitting the following evidence to prove the signing, performance and modification of the contract: 1, written contract or oral contract content, witness testimony; 2. evidence of the delivery of the subject matter or the provision of documents relating to the subject matter; 3. Evidence of delivery of relevant documents and information; 4, the receipt of the subject matter of evidence; 5, the subject matter quantity, quality objection notice of evidence; 6. Evidence of sample sealing and sample quality; 7. Evidence of a third party's claim to the subject matter; 8. Evidence of contract modification and termination; 9. Evidence of breach of contract; 10. The amount of compensation for breach of contract or loss and other evidence. The 5. combines the case to explain the matters needing attention in the process of signing and performing the contract. Case 1: Case concerning unauthorised representation The owner of the house, Party A, entrusts his mother to sell the house to Party B through an intermediary. After Party B pays part of the purchase price, Party A (the owner's mother) will hand over the house to Party B. Later, due to the rise in house prices, Party A believed that the sale of the house was at a loss and asked Party B to increase the house price, which Party B refused. Party A filed a lawsuit with the court, arguing that his mother had no right to sell the house, because the power of attorney only listed the management of the house and other matters, and did not explicitly authorize the sale of the house. In the course of the court hearing, it was found that in order to fulfill the house purchase contract between the two parties, Party A had changed the purchase receipt into an invoice at the developer's office and handed it to Party B for tax deduction. The court, based on other facts of the case, determined that although the authorization of the power of attorney was unclear, Party A had acted afterwards to ratify the fact that the house purchase contract between the two parties was valid. Tip: If you strictly review the principal's agency authority and matters when signing the contract, you can avoid leaving legal loopholes for the other party. Case 2: Credit investigation on signing a contract The plaintiff is an equipment leasing company, the defendant is the lessee, the plaintiff leases the equipment to the defendant for use, the defendant stores the goods in a third party, the third party and the defendant has a certain relevance, the plaintiff has always thought that the third party is the defendant's subordinate enterprises, the reason why the lease to the defendant is because the third party has the ability to perform. During the performance of the contract, the plaintiff found that the defendant was unable to perform the contract. After investigation, the third party and the defendant had a certain degree of relevance, but they were completely two independent subjects in law. There was no basis for requiring the third party to bear the responsibility in accordance with the law. Tip: In this case, if the lessor conducts an appropriate credit investigation at the time of signing the contract, this situation can be avoided. Case 3: Review of illegality in relation to the signing of a contract A cultural company (Party A) signed an agreement with another company (Party B) to sign an agreement on a certain service. In the signed contract, both parties agreed that Party A would deliver the corresponding service payment to the account designated by Party B, and then Party B would designate the payment to a certain person's account. Later, due to disputes over various services, Party B sued the court and required Party A to pay the corresponding service fee. Party A replied that Party B provided a personal account, in violation of the law, so failed to pay, failed to pay the reason in Party B. After trial by the court, the court found that the agreement violated the mandatory provisions of the Company Law and the Commercial Bank Law and was invalid. Tip: A basic part of reviewing a contract is a legality review. Case 4: Contract seal, inconsistent at the time of contract signing and performance A construction company (A) to the steel company (B) to buy steel, the buyer and seller signed a steel purchase and sale agreement, after the agreement is signed, the steel company will be transported to the construction company's site, the construction company received steel, stamped on the delivery note, but the chapter is not filed. After a dispute over the steel payment, Party B sued Party A to the court for payment of the steel payment. Party A replied that it did not receive Party B's steel, and the signature on Party B's delivery note was not Party A's. At the time of the lawsuit, all site personnel had been evacuated because the project had been completed. After careful investigation, the court confirmed that Party A received the steel from Party B and finally ruled in favor of Party B. Hint: The seal is inconsistent and occurs from time to time in the performance of the contract. This problem is worth noting. Case 5: Problems arising from fax, etc. in the performance of the contract Party A is a garment company and Party B is a fashion company. Party A is entrusted by Party B to contract labor and produce a batch of garments. The order form is sent by Party B to Party A by fax, but the fax number does not belong to the telephone number of Party B's company. After Party A completes the processing according to Party B's standards, Party B refuses to accept. For this dispute, Party A sued the court and asked Party B to pay the processing fee. Party B replied that Party A has never been entrusted with the processing of clothing and shall reject Party A's claim. Fortunately, before Party A's lawsuit, the recording evidence was preserved. After the first and second instance of the case, Party B was finally decided to lose the lawsuit. Note: The fax involved in this case should be paid attention to when performing the contract. The above cases are all frequent situations that occur in the process of signing and performing contracts. Company managers are reminded that in the process of signing contracts, if there are no corresponding preventive and remedial measures, it is difficult to protect rights and interests.

2021-11-24

Viewpoint... The dispute between the victim of a traffic accident and the jurisdiction of the court where the insurance company is located-and an analysis of the major breakthrough in the successful revision of the jurisdiction appeal case.

In a motor vehicle traffic accident liability dispute case represented by the author, the higher court revoked the result of the inadmissibility ruling made by the basic court, and instructed the court of first instance to file a lawsuit against the relatives of the deceased in the court where the insurer is located. This final result marks a breakthrough in the jurisdiction of traffic accident cases, which is generally accepted by the court of the place where the traffic accident occurred. This article interprets the law by case, although it is a common traffic accident that causes death, but it is of great significance and extraordinary in the jurisdiction of the court, in order to give readers some enlightenment. A victim files a lawsuit in the court where the insurer is located. One day last winter, when A was driving his own private car along the South Second Ring Road in Shizhong District of Jinan City, he collided with B who was riding an electric bicycle across the road, resulting in B's death. The Shizhong District Brigade of the Traffic Police Detachment of the Jinan Public Security Bureau determined in accordance with the law that both the car driver A and the deceased B were equally responsible for the accident. After investigation, C property insurance company Jinan central branch company underwrites the car's strong insurance and commercial insurance under the third party liability insurance. A and the heir of the deceased B signed a "mediation agreement", agreed that the traffic accident in the car's strong insurance and commercial insurance under the three insurance all belong to Ding enjoy and claim. In order to claim the insurance money, Ding filed a lawsuit with the District Court where the insurer is located. 2 The court in the place where the insurer is located ruled that it will not be accepted. A district court orally informed the relatives of the deceased to go to the court where the accident occurred. The relatives of the deceased did not agree for some reason and insisted on prosecuting in Area A. The A District Court then ruled inadmissible. The reasons for the decision are as follows: "After review, this court believes that this case is a motor vehicle traffic accident liability dispute, and the jurisdiction court should be determined by the place of infringement or the defendant's domicile. The place of infringement in this case is the downtown district of Jinan city, and the place of residence of the car driver, I .e. the infringer a, is also the downtown district of Jinan city. although the place of residence of the accused c property insurance company Jinan central branch is Jinan district a, it is not the actual infringer. therefore, there is no legal basis for establishing the jurisdiction court based on the place of residence of the accused c property insurance company Jinan central branch. According to Article 119 of the Civil Procedure Law: "The prosecution must meet the following conditions:... the (IV) falls within the scope of the court's acceptance of civil litigation and the jurisdiction of the court of appeal". Paragraph 4 of Article 124: "For cases that do not fall under the jurisdiction of this court, the (IV) shall inform the plaintiff to bring a suit in a court with jurisdiction". Article 211 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law: "For cases where this court has no jurisdiction, the plaintiff shall be informed to file a lawsuit with a court with jurisdiction; if the plaintiff insists on filing a lawsuit, it shall be ruled not to accept it; if it is found that this court has no jurisdiction after filing a case, the case shall be transferred to a court with jurisdiction". Accordingly, the Court rejected the case. ......, the ruling is as follows: the prosecution of Ding, this court will not accept." Three victims appeal against the law The prosecutor, Ding, refused to accept the ruling of the first instance and appealed to the Jinan Intermediate Court within the time limit for appeal. The appeal request is to revoke the ruling of the first instance and instruct the court of first instance to accept the case. The grounds of appeal are as follows: The 1.'s original ruling that the court of first instance had no jurisdiction over the case was an error of fact. Reason: 1. The logic of the original ruling to determine the jurisdiction of the court is inconsistent and illegal, and the second instance should be corrected. The court of first instance held that "this case is a dispute over liability for motor vehicle traffic accidents, and the jurisdiction court should be determined by the place of infringement or the domicile of the defendant." Obviously, the competent court can be the court of the place of infringement or the court of the defendant's domicile. The appellant has the right to choose these two types of courts according to law. The appellant now chooses the court of the defendant's domicile as the court of appeal, which is in accordance with the law. Article 21, paragraph 3, of the "Civil Procedure Law" stipulates: "If several defendants in the same lawsuit have their domicile and habitual residence in the jurisdiction of two or more people's courts, each court has jurisdiction." Article 35 of this Law provides that: "In an action in which two or more courts have jurisdiction, the plaintiff may sue in one of the courts; ......" Accordingly, the court of the place of domicile of any one of the defendants may be the court of jurisdiction. The jurisdiction conferred on the courts by the Act is not subject to any preconditions. There are two defendants in this case. The appellant chose the court (District A Court) where Jinan Central Branch of C Property Insurance Company is located as the jurisdiction court, which is in full compliance with the law. The original trial ruled that the jurisdiction of the court of appeal was judged on the basis of whether the defendants were infringers. This practice is unfounded and should be corrected. 2. This case is not a purely tort dispute and should not be governed only by tort considerations. The original ruling forced the plaintiff to choose the court of the place of infringement or the court of the place of domicile of the infringer as the court of jurisdiction, which violated the law. The original ruling depriving the plaintiff of the statutory right of action (the choice of the competent court) should be corrected. As we all know, in traffic accident cases, the victim and the driver who caused the accident have a tort relationship, and the insurance company and the victim (the third party) have an insurance contract relationship. According to the traditional theory of tort compensation law, the victim should only sue the infringer such as the driver and the owner of the accident and claim the liability for tort compensation. After the infringer has paid the compensation, the insured (infringer) should apply to the insurer for compensation, instead of the victim directly listing the insurance company that underwrote the car in the infringement case as the co-defendant. These are two different legal relationships. The "Road Traffic Safety Law" implemented on May 1, 2004 broke through the shackles of the above-mentioned traditional tort compensation legal system, and pioneered a new type of accident compensation legal system to list the infringer and the insurer as co-defendants. The Tort Liability Act reconfirms this legal system. Based on the understanding of the aforementioned traditional tort compensation jurisprudence, for a long time after the implementation of the Road Traffic Safety Law, many courts did not follow the provisions of the Traffic Safety Law and the Tort Liability Law when accepting traffic accident cases. The new compensation system is implemented (the infringer and the insurer are listed as co-defendants), but still requires the plaintiff to only list the infringer as the defendant and prohibit the insurer as the co-defendant. It was not until December 21, 2012 that the Supreme Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Road Traffic Accident Damage Compensation Cases came into effect that the practice of courts across the country was unified: victims were allowed to sue infringers and insurance companies at the same time, and victims were required The insurance company that underwrites compulsory traffic insurance and commercial triple insurance is listed as a co-defendant. This practice is still used today. It can be seen from the above that the court of first instance has jurisdiction over the case, not without jurisdiction. From the perspective of the jurisdictional content stipulated in the Civil Procedure Law, if you choose the court of the defendant's domicile to sue, the law does not require the court of the infringer's domicile to be the court of the infringer's domicile. The court of first instance forced the appellant to sue either in accordance with the court of the place of infringement or in accordance with the court of the place of domicile of the infringer among the co-defendants, which in essence illegally deprived the appellant of the right to choose a court of jurisdiction in accordance with the law. This practice has no basis in the law and the ruling of the original trial should be corrected. 3. The ruling of the original trial deprived the appellant of part of his litigation rights, which constitutes an offence and should be corrected. The original ruling of the 2. was wrong in applying the law. (omitted) To sum up, the original ruling found that the facts were wrong and the applicable law was wrong, which should be corrected. In order to safeguard the legitimate rights and interests of the appellant, the court of second instance is requested to correct the error according to law. 4. The Court of Final Appeal revoked the ruling of the first instance and ordered the court of first instance to file a case for acceptance. After the trial, the Jinan Intermediate Court made a final ruling: revoke the first-instance ruling and order the first-instance court to accept the case. The reasons for the revision by the court of second instance are as follows: "... the appellant listed the insurer as a defendant in accordance with the law, in accordance with the provisions of the above judicial interpretation. The third paragraph of Article 21 of the "Civil Procedure Law" stipulates: "If several defendants in the same lawsuit have their domicile and habitual residence in the jurisdiction of two or more people's courts, each people's court has jurisdiction." Article 35 stipulates: "Where two or more people's courts have jurisdiction over a lawsuit, the plaintiff may bring a suit in one of the people's courts; ......" The appellant first chooses to bring a suit in the court of original trial in the place where the insurer is domicile, and the court of original trial has jurisdiction over the case. The court of first instance shall not accept the case improperly and shall correct it. &hellip; ruled as follows: The 1. revoked the civil ruling of Jinan District A People's Court (2021) Lu 0102 Minchu XXXX; 2., the case ordered Jinan A District People's Court to accept the case. This decision shall be final." V. Comments on Case-handling Lawyers Defendants in motor vehicle traffic accident liability disputes usually include motor vehicle drivers, motor vehicle owners, and property insurance companies that underwrite motor vehicles that cause accidents. Jurisdictional courts usually include: the court of the place where the accident occurred, the court of the motor vehicle driver's domicile, the court of the motor vehicle owner's domicile, etc. The difference in litigation costs, the different concepts of different courts, the difference in compensation treatment, especially the ability to file a lawsuit in the pilot provinces authorized by the Supreme People's Court to implement a unified compensation standard for the nature of urban and rural household registration, and many other factors have resulted in the same case in different courts. There will be different judgments (the amount of compensation is huge). Therefore, many victims attach great importance to the choice of the jurisdiction court. In many cases, it is more beneficial for the victim to file a lawsuit in the court where the insurer is located. At this time, the victim hopes to file a lawsuit in the court where the insurer is located. We temporarily summarize the above situation as demand-side demand, and the following objective situation can be summarized as supply-side supply: There are nearly 90 property insurance companies in my country, and the provincial branches and head offices of these companies are mostly located in provincial capital cities, Financial and insurance industry clusters in the capitals of autonomous regions, and municipalities directly under the Central Government, that is, they are highly concentrated in a certain 1. and two districts in the city. If the plaintiff takes the court of the insurer's domicile as the jurisdiction court, it will make it difficult for the courts in the 1. districts where property insurance companies in provincial capitals, autonomous regional capitals and municipalities directly under the Central Government gather to deal with an astonishing number of traffic accident cases. In order to deal with and alleviate the contradiction between supply and demand, the above-mentioned grass-roots courts have formed an effective practice over the years. If the plaintiff determines the court of jurisdiction according to the domicile of the insurer, the oral reply will not be accepted and the plaintiff will be informed that he should sue in the court where the traffic accident occurred. This has led to a large number of traffic accident victims who cannot choose to sue in the insurer's domicile court according to their own needs. For decades, the heirs of countless deaths have been unable to shake this judicial reality. When handling the appeal of jurisdiction dispute in this motor vehicle traffic accident liability dispute case, lawyer sun hanchuan overcame the difficulties, solved the above-mentioned problems, and cleared a major obstacle for such victims on the demand side in the future.

2021-11-23

Viewpoint... On the legality of court assistance in changing frozen equity in bankruptcy reorganization cases.

Presentation of 1. issues Article 19 of the Enterprise Bankruptcy Law stipulates that "after the people's court accepts the bankruptcy application, the preservation measures relating to the debtor's property shall be lifted and the enforcement procedure shall be suspended." The administrator may, in accordance with the foregoing provisions, apply for the lifting of all protective measures against the debtor's property, but it is difficult to lift the protective measures against the shareholders' equity holdings. After the reorganization plan adjusts the rights and interests of the contributors, the frozen state of equity will prevent the new and old shareholders from completing the registration of equity changes on their own, thus hindering the implementation of the reorganization plan. In order to solve this problem, the insolvency representative tries to find various ways, such as negotiation, acquisition of creditor's rights, setting settlement conditions, determining the transfer price of formal equity, auction of equity, application to the enforcement court for cancellation, and filing of enforcement objections. These methods have their own disadvantages, such as negotiation or acquisition of creditor's rights, which often increases time or money costs and is unfair to other creditors. In the reorganization plan, the lifting of the equity freeze as a condition for settlement does not necessarily lift all the freezes. Some creditors would rather not receive the payment than cooperate with the unsealing, and this method is not binding on the creditors of non-bankrupt enterprises; when the reorganization plan stipulates that the transfer price in the form of 1 yuan, 10 yuan or 100 yuan will be paid to the first cover and then apply to the enforcement court to lift the freeze on all shares. This practice not only confuses the adjustment of investors' rights and interests with the transfer of shares, but also divides the debt service funds from the transfer price of shares, and the transfer price lacks persuasiveness and basis, which has major logical defects. If the reorganization investor is determined by auction of shares, it is necessary to adjust the rights and interests of the investor before the equity auction, then it is also necessary to face the issue of the equity freeze; apply to the enforcement court to lift the seizure or file an enforcement objection, some courts have ruled to lift the seizure measures, but many courts have rejected the objection. As early as 2012, judges Zhang Yongjun and du Jun of the Supreme people's Court published a paper in the Application of Law, arguing that "the reorganization procedure takes precedence over the ordinary enforcement procedure, and the nature of equity reduction is not an intended transfer but more similar to a legal transfer. After the reorganization plan is approved by the people's court, it will have the nature of an effective legal document. The people's court and other relevant administrative organs should fully guarantee the implementation of the equity reduction in the plan, the equity freeze should be lifted." Professor Wang Xinxin published a paper in the People's Court News in 2016 and argued: "The reorganization plan approved by the court is mandatory for the change of the investor's equity, rather than the complete voluntary transfer of all parties, which is a judicial transfer of equity. Therefore, the court should issue a notice of assistance in execution in accordance with the company's regulations to ensure the implementation of the reorganization plan approved by it." And pointed out that "in the practice of the reorganization of listed companies in China in recent years, there are many cases involving the change of shareholders' equity, all of which are implemented by the court issuing a notice of assistance in execution." If the court accepting the bankruptcy case issues a notice of assistance in execution, requiring the commercial registration authority to register the change of equity under the name of the designated subject, this is the most direct and effective way to solve the problem of equity freeze. The judicial practice of changing the registration of frozen shares directly by the court accepting bankruptcy cases in 2.. Due to the imperfect provisions of the current Enterprise Bankruptcy Law, local courts have made various guidance within the legal framework to solve many practical problems encountered in bankruptcy cases. The Guangdong High Court, the Beijing Bankruptcy Court, the Guangzhou Intermediate Court, the Shenzhen Intermediate Court, and the Jiangsu High Court have made it clear that the court can assist in the implementation of the method of changing the registration of frozen shares. 1. Paragraph 2 of Article 98 of the guidelines on several issues concerning the trial of Enterprise bankruptcy cases issued by the Guangdong Provincial higher people's Court on November 29, 2019 stipulates: "when the people's court approves the reorganization plan, it shall be examined in the light of the value of the debtor's assets, liabilities, the proportion of the debtor's compensation in the reorganization plan, and the size of the retained rights and interests of the original shareholders after adjustment. After examination and approval, it shall be implemented in accordance with the provisions of the reorganization plan. If the people's court or registration authority that has taken measures to seal up the shares refuses to enforce them, the administrator may apply to the people's court for assistance in enforcement." 2. Article 132 of the "Regulations for Handling Bankruptcy Reorganization Cases (Trial)" formulated by the Beijing Bankruptcy Court on December 30, 2019 stipulates: "During the implementation of the reorganization plan, investors, creditors, etc. refuse to cooperate without justifiable reasons. If the rights and interests change procedures, the people's court may issue a notice of assistance in execution to the relevant units based on the application of the administrator and interested parties." 3. Article 10, paragraph 2, of the "Implementation Opinions on Promoting the Exit of Bankrupt Enterprises from the Market" jointly issued by Guangzhou Intermediate People's Court and Guangzhou Market Supervision Administration on May 26, 2020, No. 88 of Guangzhou Zhongfa [2020] stipulates: "Bankruptcy and reorganization enterprises need to change shareholders' matters due to the adjustment of investors' rights and interests, but the shares held by the original shareholders of the enterprise are pledged or sealed up, the administrator may go to the corresponding market supervision department for equity change registration with the case acceptance ruling, the approval of the reorganization plan ruling, the decision of the designated administrator (liquidation group), the notice of assistance in execution and other materials." 4. Article 7 of the minutes of the meeting on issues related to the cancellation of enterprises jointly issued by the Shenzhen Intermediate people's Court and the Shenzhen Municipal Market Supervision Administration on September 25, 2020 stipulates: "if a bankrupt and reorganized enterprise needs to change shareholders' matters due to the adjustment of the rights and interests of investors, but if the shares of the enterprise held by the original shareholders of the enterprise are pledged or sealed up, the people's court shall issue a notice of assistance in execution, the administrator may go to the commercial registration authority to register the change of equity with the ruling on the acceptance of the case, the ruling on the approval of the reorganization plan, the decision of the designated administrator (liquidation group) and the notice of assistance in execution issued by the people's court." 5. Article 5 of the "Implementation Opinions on Doing a Good Job in the Registration of Bankrupt Enterprises and Optimizing the Business Environment" jointly issued by the Jiangsu Provincial Higher People's Court and the Jiangsu Provincial Market Supervision Administration on November 16, 2021 stipulates: "The registration of change of shareholders of bankrupt enterprises shall be handled in accordance with the law. According to the bankruptcy reorganization plan approved by the people's court, it is necessary to change the registration of shareholders of the bankruptcy reorganization enterprise, but because the equity held by the original shareholders of the enterprise has been pledged or sealed up by the court, if the administrator is unable to apply for the registration of shareholder change, the bankruptcy court may issue a notice of assistance in execution, notify the market supervision department to assist in lifting the seal, removing the pledge, and handle the registration of equity change. After the seizure is lifted or the pledge is removed, the bankruptcy court shall promptly inform the pledgee and the court that originally took the protective measures of the situation." 3. Court Accepting Bankruptcy Cases Changes the Legality Basis of Frozen Equity Registration by Co-Enforcement It is the most effective way to solve the obstacles of equity freezing that the court accepting bankruptcy cases directly requires the commercial registration authority to complete the change registration by means of the notice of assistance in execution. In the absence of clear legal provisions, why do places such as Guangzhou and Shenzhen dare to issue the above judicial documents, and why do some areas dare to issue direct co-enforcement transfers? In addition to the admirable spirit of social responsibility, the more important support lies in the stable legal basis of this practice. The legal effect of the (I) equity freeze only extends to the autonomy of shareholders to transfer equity and the right to dividend income. According to the Civil Code, equity is one of the six property rights enjoyed by civil subjects, alongside property rights, claims, intellectual property rights and inheritance rights. Equity can be divided into self-interest and co-interest according to the purpose and manner of exercise. Self-interest rights refer to the rights enjoyed by shareholders based on their own interests, which can be exercised separately, including the right to return on assets, the right to request the distribution of surplus property, the right to transfer shares, the right to subscribe for new shares, etc. The right of common interest refers to the rights enjoyed by shareholders based on the interests of all shareholders or the company, including the right to vote at the shareholders' meeting, the right to convene the shareholders' meeting, the right to propose proposals, the right to question, the right to inquire about the articles of association and the books of account, and the right to request revocation by resolution of the shareholders' meeting. The Supreme People's Court<关于人民法院执行工作若干问题的规定>（试行）》第38条规定：“对被执行人在有限责任公司、其他法人企业中的投资权益或股权，人民法院可以采取冻结措施。冻结投资权益或股权的，应当通知有关企业不得办理被冻结投资权益或股权的转移手续，不得向被执行人支付股息或红利。被冻结的投资权益或股权，被执行人不得自行转让。”根据《最高人民法院、国家工商总局<关于加强信息合作规范执行与协助执行的通知>(October 10, 2014) Article 12 stipulates that if the shares are frozen, the shareholders shall not transfer them without authorization, and shall not set up pledges or other rights burdens. According to the aforementioned provisions, the consequence of the equity freeze is that the executed person may not transfer the frozen investment interest or equity on his own, and the enterprise may not go through the procedures for the transfer of the frozen investment interest or equity, and may not pay dividends or dividends to the executed person. The legal effect of the equity freeze only extends to the autonomy of the shareholders to transfer their shares and the right to dividend income, limiting the shareholders' right to self-interest, not the right to co-interest. The freezing of (II) shares does not affect the voting, compulsory adjudication and legal effect of the investor's equity adjustment plan. There is a fundamental difference between the transfer of equity to the reorganization investor or creditor in the adjustment plan of the investor's equity in the reorganization plan and the transfer of equity. The transfer of equity is the act of a shareholder transferring his equity to another person by means of transactions, gifts and other laws or the articles of association of the company. On the other hand, the adjustment of the rights and interests of the investors in the reorganization plan is based on the principle that creditor's rights take precedence over equity, and the rights and interests of the investors are reduced in the case of enterprise bankruptcy, so as to introduce the way of restructuring investors or debt-to-equity swap and reorganization. The acquisition of equity by investors is not based on the self-transfer of shareholders, and the investment price is not paid to individual shareholders. The shareholding freeze restriction is the shareholder's right to self-transfer and dividend of equity and investment interests. The reorganization plan investor's equity adjustment plan is not a shareholder's own transfer of equity or investment interests, nor does it involve dividends, does not belong to the restriction of equity freeze, and does not affect the voting rights of shareholders on the plan. According to Article 87 of the Enterprise Bankruptcy Law, even if the investor group does not vote to pass the capital contribution rights and interests adjustment plan, as long as the draft reorganization plan adjusts the investor's rights and interests in a fair and just manner, the court can force the decision. The freezing of equity or pledge is not an exception, and the freezing of equity does not affect the court's ruling and legal effect. (III) equity has undergone a change in the subject of rights prior to the registration of the change. According to the third paragraph of Article 32 of the Company Law, the effect of equity registration of a limited liability company is only against third parties. The industrial and commercial department is not the shareholder's equity confirmation authority, nor is it the property right registration authority, the industrial and commercial department of the limited liability company's capital contribution registration, the essential role is information publicity. Although no change registration has been made, the reorganization investor or creditor may acquire equity in accordance with the provisions of the investor's equity adjustment plan confirmed by the court ruling. (IV) the reorganization plan is an effective legal document, the people's court may complete the formalities for the transfer of property rights certificates by way of co-enforcement. The reorganization plan approved by the court has the nature of an effective legal instrument, and the reorganization plan stipulates that the change of equity to the name of the reorganization investor or creditor shall be implemented. According to Article 4 of the Enterprise Bankruptcy Law: "If the proceedings for the trial of bankruptcy cases are not provided for in this Law, the relevant provisions of the Civil Procedure Law shall apply." Article 251 of the "Civil Procedure Law" stipulates: "In the course of execution, if it is necessary to go through the procedures for the transfer of relevant property rights certificates, the people's court may issue a notice of assistance in execution to the relevant unit, and the relevant unit must go through it." In the course of the implementation of the reorganization plan, it is necessary to go through the formalities for the transfer of shares, but due to the freezing of shares, the shareholders are unable to do so on their own, so the people's court has the right to issue a notice of assistance in execution to the registration authority in accordance with the above provisions. The (V) investor's equity adjustment plan is binding on the debtor and all creditors. Article 92, paragraph 1, of the Enterprise Bankruptcy Law stipulates: "A reorganization plan approved by the People's Court shall be binding on the debtor and all creditors." If the executor applying for the freezing of equity is also a creditor of the debtor, the provisions of the investor's equity adjustment plan and the conditions for the settlement of claims shall be binding on it, and in the case of non-cooperation in the lifting of the equity freeze, the court shall rule on the basis of the reorganization plan to force the resolution of the equity freeze. The adjustment of the rights and interests of the (VI) investor and the change of the equity shall not harm the legitimate rights and interests of the applicant. In the case of the debtor's insolvency, there is no surplus to be distributed to the interests of shareholders, the adjustment of the rights and interests of the investor will not actually harm the rights and interests of the applicant for execution, and the continued freezing of the original investor's equity has no practical significance for the applicant for execution. If the enterprise goes bankrupt and liquidates due to the inability to transfer the shares, the shareholders' shares will no longer exist and the creditors will suffer greater losses. 4. epilogue As a civil preservation measure, the legal effect of the equity freeze is only to prohibit the right of shareholders to transfer their equity and investment interests and the right to dividends. The adjustment of the investor's rights and interests of the reorganization plan is the reduction and transfer of the investor's rights and interests based on the debtor's assets and liabilities in the bankruptcy reorganization proceedings of the enterprise, which is fundamentally different from the transfer of equity, and is not within the scope of the equity freeze measures. The reorganization plan is an effective legal instrument, and the adjustment of the rights and interests of the contributors determined by it has the effect of enforcement. In the case that the debtor and shareholders are unable to implement the investor's rights and interests adjustment plan on their own due to the freezing of equity, the people's court shall complete the registration of frozen equity changes by issuing a notice of assistance in execution in accordance with the provisions of the Enterprise Bankruptcy Law and the Civil Procedure Law. The practice has a sufficient legal basis and should be supported and widely applied.</关于加强信息合作规范执行与协助执行的通知></关于人民法院执行工作若干问题的规定>

2021-11-23