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Foreword The Ministry of Education and the Ministry of Finance issued the "Administrative Measures for Student Internships in Secondary Vocational Schools" (hereinafter referred to as the "Measures"), which mainly refers to secondary vocational schools in accordance with the requirements of professional training objectives and the arrangement of teaching plans, and organize students to The teaching practice and internship conducted by employers such as enterprises are important contents of professional teaching in secondary vocational schools. For students, internship is the process of applying theoretical knowledge to practice, and it is an important part of learning during school and about to enter the workplace. Through internships, students can accumulate practical experience, increase social experience, adapt to social life early, increase opportunities for future employment, and facilitate the smooth connection between school study and employment. During the internship, students often encounter legal disputes. The common legal disputes mainly include work injury, personal injury, violation of discipline and property safety. The author mainly discusses the problem of personal injury in order to give readers some enlightenment. Text According to Article 384 of the the People's Republic of China Criminal Law, anyone who intentionally harms another person shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance. Whoever causes serious injury to a person shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years; whoever causes death or serious injury to a person by particularly cruel means and causes serious disability shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or death. On March 29, 1990, the Ministry of Justice, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security issued the Standards for the Identification of Serious Injury to the Human Body. Articles 3 and 4 of the Circular of the Ministry of Education and the Ministry of Finance on Printing and Distributing the Measures for the Administration of Student Internships in Secondary Vocational Schools stipulate that student internships shall be jointly organized and managed by schools and internship units. Schools and internship units shall safeguard students during their internships. The legitimate rights and interests of students ensure their personal safety and physical and mental health during the internship. This shows that although students go to the unit for internship, they are still not divorced from the school. The school and the internship unit have the obligation to jointly manage students. Types of personal injuries during 1. internships Personal injuries that occur between (I) intern students Internship students between the personal injury compensation events, first of all to determine the age of criminal responsibility of students. The responsibilities of minors and adults in such cases differ. Most of the responsibilities of minors are borne by their guardians, and the internship units are borne in a certain proportion. An adult (deemed to be a person with full civil capacity) is assumed by himself. With the development of the times, contemporary college students have more mature thoughts than before. From the perspective of psychological age, most of them have the ability to take responsibility. This is because with the invasion of social pluralism, contemporary college students are different from the past, and they are far more mature than their actual age in both thought and action. After all, school teachers cannot take care of every student at all times. No one has this ability. Therefore, when personal injury occurs, the proportion of responsibility of the school and the internship unit can only be analyzed on a case-by-case basis. The personal injury accidents between the students discussed here are discussed under the condition that the internship unit is regarded as no fault. The civil liability for personal injury accidents between students shall be borne by the student himself or the student's guardian in proportion according to the principle of fair liability and fault liability in accordance with the standard of general personal injury compensation. Article 8 of the measures for handling student injury accidents promulgated by the Ministry of Education stipulates: "for student injury accidents caused by the fault of schools, students or other relevant parties, the relevant parties shall bear corresponding responsibilities according to the proportion of the degree of fault of their acts and the causal relationship between them and the consequences of the damage. The behavior of the parties is the main cause of the damage and should bear the main responsibility; the behavior of the parties is the non-main cause of the damage and should bear the corresponding responsibility." Obviously, the principle of fault liability in civil law is adopted in the principle of liability attribution. Personal injury between (II) intern students and internship units Since students are actually under the control and management of the internship unit during the internship process, the school where the students are located can generally only discover and deal with the problems in the student internship in a timely manner through the regular internship inspection system and daily communication with the students., And strengthen the education and guidance of professional ethics and skills theory for students. In addition, it is difficult for schools to take other effective control measures to prevent life injury accidents that may occur during the internship. Therefore, it is unreasonable to require the school to bear the liability for personal injury caused by the internship in the enterprise. However, some scholars believe that "as the teacher, guardian and conductor of internship activities, the school should foresee the inevitable and possible risks of interns in the internship work, and should bear the corresponding legal responsibility. The employer, as the provider of labor conditions for interns, the director of the arrangement of labor work and the winner of a certain degree of labor results, shall provide the interns with safe and hygienic working conditions in accordance with the provisions of the state, and shall bear the corresponding legal responsibility when the interns are injured in their work. In the absence of clear legal provisions, schools and employers should bear joint and several liability for interns. According to this view, the school's responsibility for the personal injury of the intern student is close to no-fault liability, which actually transfers all the risk of personal injury to the student during the internship to the internship unit and the school. According to this idea, internship units will not accept students' internships, and schools will not arrange students to practice outside the school. In this way, it will cause the students in vocational schools and colleges in our country to be more divorced from social practice, and teaching and practice are out of touch. The original intention of the state to encourage students to participate in social practice and improve professional skills through internships or work-study methods will be completely defeated. On June 26, 2007, the Ministry of Education and the Ministry of Finance jointly issued two documents-"Administrative Measures for Work-Study in Higher Education Institutions" and "Administrative Measures for Internship of Secondary Vocational School Students", which provide for the work-study behavior of higher education students. Provisions are made separately for the internship activities of secondary vocational school students. The former requires that the student work-study management service organization must be authorized by the school to sign a legally effective agreement with the employer and the student on behalf of the school. The agreement must clarify the rights and obligations of the school, the employer and the student, and carry out The treatment of accidents for students who work-study activities. The latter stipulates that before vocational school students go to the internship unit for internship, the school, the internship unit and the students themselves or their parents shall sign a written agreement to clarify the responsibilities, rights and obligations of all parties; the school and the internship unit shall purchase accidental injury insurance for the internship students. Related insurance, the specific matters shall be negotiated by the school and the internship unit; during the internship, the compensation for personal injury accidents of students shall be handled according to the Measures for Handling Student Injury Accidents and relevant laws and regulations. The author discusses Whether the internship unit and the student's school should bear the responsibility for the personal injury accident during the internship? How to define the legal responsibility of the two? It has always been the focus of practical controversy. In practice, there are roughly the following treatment modes: (1) Determine the responsibility according to the terms of the internship agreement signed between the internship unit and the school regarding the handling of personal injury accidents suffered by students. However, this model often causes both parties to shirk each other's responsibilities due to unclear agreements and unclear responsibilities, or because one of them is unable to bear the responsibility, which damages the interests of interns. In fact, even if there is a so-called agreement, when the status of the intern student and the employer is not equal, the agreement on the personal injury accident that occurred during the internship may not be beneficial to the intern student. (2) Such risks are addressed through commercial insurance. In November 2009, the Ministry of Education, the Ministry of Finance, and the China Insurance Regulatory Commission jointly issued the ''Notice on the Implementation of Student Internship Liability Insurance in Secondary Vocational Schools'' after more than two years of research. It stipulates that the liability insurance can be charged from the tuition of vocational schools. If a vocational school reaches an agreement with an enterprise, it can also be charged from the cost (fee) of the enterprise, and no additional fees are allowed for students. (3) The risk of personal injury in the course of internship or part-time work is incorporated into the social security system to solve. For example, in 2009, Jiangsu Province stipulated that all full-time undergraduate, Junior College students and graduate students who received general higher education in all kinds of full-time colleges and universities and scientific research institutions in the administrative area of Jiangsu Province, taking the school as a unit, should register college students' insurance participation before October 15 of each year, and go through the formalities with the medical insurance agencies in the overall planning area, Enjoy basic medical insurance benefits from the date of going through the enrollment procedures and paying the insurance fees. The cost of participating in basic medical insurance shall be shared by the government finance and individuals. Yunnan, Sichuan, Chengdu, Shandong, Fujian and other places have also included college students in the local urban residents' medical insurance system. But somehow, the areas that currently implement this measure only include college students in the scope of application, ignoring the more than 2000 million students in secondary vocational schools in my country, which are almost equal to the number of students in colleges and universities. (4) According to the relevant provisions of the "Measures for Handling Student Injury Accidents" (hereinafter referred to as the "Measures") promulgated by the Ministry of Education in 2002. According to Article 2 of the "Measures", the provisions of the Measures shall apply to the handling of accidents that cause personal injury to students in school during off-campus activities organized by the school. Therefore, the internship activities organized by secondary vocational schools for students in enterprises and the activities of engineering students organized by colleges and universities to study in enterprises for one year to complete the graduation design, in the event of personal injury accidents, the relevant provisions of the measures should be applied. (5) Through the identification of school students in the enterprise internship when their status is a special worker, the internship in the process of personal injury accidents, such as constitute a work injury, according to law to enjoy the treatment of industrial injury insurance. (6) Article 61 of the "Trial Measures for Work Injury Insurance for Enterprise Employees" promulgated by the former Ministry of Labor in 1996 stipulates: "If a work injury accident occurs to a student of a college, technical school, or vocational Senior high school who has an internship in an enterprise participating in work injury insurance, the local work injury insurance agency may refer to the relevant treatment standards of these Measures. The work injury insurance agency does not charge insurance fees from the relevant schools and enterprises." Incorporating the personal injury risks that may arise from school students' internships or part-time jobs in enterprises into the country's uncompleted social security system at the time, reducing the burden on schools and internship units, and reflecting the country's emphasis on the training of reserve labor, and the importance of college students and vocational schools. Students' theory is linked with practice, and school learning and enterprises' labor demand are smoothly connected. However, this provision was repealed by the "Regulations on Industrial Injury Insurance" promulgated by the State Council in 2003, and there is no separate provision for this, nor is the reason for the repeal. Nevertheless, some local governments in our country still follow these regulations. For example, the regulations on work-study activities for students of ordinary colleges and universities in Beijing also stipulates that for students who have work-related injuries in the course of work-study work, the employer shall pay a one-time fee in accordance with the relevant provisions of work-related injury insurance.
2021-11-15
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2021-11
As we all know, the media has the social function of educating the masses. For minors who are still in the stage of mental development, compared with other media and content forms, the mimicry environment created by audio-visual news programs produced or reproduced by audio-visual media has a more significant impact on minors' understanding of the world and the formation of their own values. As a result, audio-visual media organizations shoulder the important social responsibility of protecting minors, and should abide by the principles and provisions of laws and regulations such as the Convention on the Rights of the Child and the Law on the Protection of minors, and regulate their own news reporting behavior. On October 17, 2020, China's Law on the Protection of Minors completed its third revision since its enactment in 1991, and the revised "New Uninsured Law" came into effect on June 1, 2021. Article 49 of the new uninsured law provides for the first time the principle of news media reporting incidents involving minors. The "Opinions of the Leading Group for the Protection of Minors of the State Council on Strengthening the Protection of Minors" issued on June 8, 2021 also proposed to further regulate the news media's publicity and reporting of hot events involving minors. Based on the Convention on the Rights of the Child and the relevant provisions of the new uninsured law, this paper analyzes the reporting principles established in Article 49, and analyzes the problems existing in the previous news reports of audio-visual media organizations in the light of relevant examples that have occurred in recent years, and discusses the path of implementing these principles in the future. An understanding of the principle of "objectivity", "prudence" and "moderation" in news media reports involving minors. 1. Definition of news reports of "incidents involving minors" Article 49 of the new uninsured law uses the expression "news media interviews and reports involving minors", but does not specify its specific scope. According to the interpretation of the text, it should belong to the narrow sense of minor news reports, that is, news reports with minors as the main characters (or directly related to minors). However, if interpreted in accordance with the purpose most conducive to the protection of minors, the use of generalized juvenile news reporting can also be established or at least as a future goal. The so-called general news reports of minors refer to the news reports directly or indirectly related to minors made by the media. The so-called "indirect connection" refers to the fact that although there are no direct minors or topics directly related to minors in news reports, they are related or potentially related to the rights and interests of minors. 2. The basic meaning of the principle of "objectivity", "prudence" and "moderation" According to the interpretation of the Social Law Office of the Legal Work Committee of the Standing Committee of the National People's Congress, "objectivity" in Article 49 of the new uninsured law means that when reporting incidents involving minors, it should be fully investigated and understood to ensure the authenticity of the reported incidents., Objectivity, avoid adding subjective inferences to the report. The so-called "prudence" means that the topic, conception, publication or push of news should be carefully and carefully demonstrated to analyze the social concern that the report may cause and its impact on the minors involved. The so-called "moderate" means that the media should not excessively pursue comprehensive truth when reporting incidents involving minors, but should have certain scales and boundaries to prevent the reputation, privacy and privacy of minors due to the excessive excavation of event information by the news media. Other legitimate rights and interests have been violated. On the whole, the principle of "prudence" and the principle of "moderation" are the special requirements of the new uninsured law for the news reports of minors, especially the requirements of the principle of "moderation" are more specific, which are related to other parts of the new uninsured law. The special protection of adults echoes each other. 3. The factual basis of the principles of "objectivity", "prudence" and "moderation" Article 49 of the new uninsured law is a new provision in this amendment. The reason for the addition of this clause, as stated by the Social Law Office of the Legal Work Committee of the Standing Committee of the National People's Congress, an important practical reason is that in recent years, news media have violated the rights of minors due to reporting behaviors. According to the author's observation, the problems existing in the general news reports of minors before the amendment of the law can be roughly divided into three types according to the specific performance: First, in news reports directly involving minors, they have repeatedly broken through the bottom line of reporting set by law. A typical example is that in the report of Li's rape case in 2013, audio-visual media flocked to report his real name, photo, growth experience and other personal information, which seriously violated the provisions of the law on uninsured and the law on the prevention of juvenile delinquency at that time, which prohibited the disclosure of juvenile related personal information in juvenile delinquency cases. Second, there is often a lack of necessary restrictions and treatment when carrying out news reports involving violence, sex, terror and other news reports that may have adverse effects on minors. For example, also in 2013, online big V Xue Manzi was arrested by the police on suspicion of whoring and gathering people for fornication. When a TV station reported the news incident, it lacked awareness of the protection of minors and reported the details of the police's interrogation of Xue Manzi and prostitutes without necessary treatment. Third, the lack of recognition and respect for the independent personality of minors. In 2011, many audio-visual media reported on the 13-year-old "five bars" teenager Huang Moumou, describing him as a "gifted child" with great political literacy ". This kind of report obviously does not respect the main personality that minors should have, and alienates them into so-called "gifted" officials "children, which leads to subsequent online accusations, abuse and human flesh searches. Even his graduation from Wuhan University in 2020 is still pursued and reported by many media. 4. International convention basis for the principle of "objectivity", "prudence" and "moderation" The Convention on the Rights of the Child, which my country has joined and ratified, also has some requirements for the status and behavioral norms of the news media in the protection of minors. For example, article 17 (Access to information; mass media) of the Convention states: "States Parties recognize the important role of the mass media and shall ensure that children have access to information and material from a variety of national and international sources, in particular those aimed at the promotion of their social, spiritual and moral well-being and physical and mental health, and to this end, states parties should:(A) encourage the mass media to disseminate information and material of social and cultural benefit to the child in the spirit of article 29; ...... (E) encourage the development of appropriate guidelines, in accordance with articles 13 and 18, to protect the child from information and material that may be detrimental to his or her well-being." It can be seen that the Convention clearly stipulates the social responsibility of the media to protect minors, and there are corresponding requirements in the provision of content and the formulation of codes of conduct, which are the basis of the international convention of Article 49 of China's uninsured law. The principle of "objectivity", "prudence" and "moderation" should be based on the basic principle of "most beneficial to minors" Article 4 of the new uninsured law supplements the principle of "most beneficial to minors" on the basis of Article 5 of the original uninsured law, that is, in the process of protecting the personal rights, property rights and other legitimate rights and interests of minors, it is necessary to weigh various factors, choose the plan that is most beneficial to minors, and take the measures that are most beneficial to minors, To maximize the interests of minors. The Social Law Office of the Legal Work Committee of the Standing Committee of the National People's Congress also pointed out that the principle of being most beneficial to minors is consistent with the inherent spirit of the "principle of maximizing children's interests" stipulated in the Convention on the Rights of the Child. The "best interests of the child" in the Convention on the Rights of the Child is regarded as the basic theoretical premise of all conventions, the first principle of the convention to protect minors, the programmatic basis of children's legislation, administration and justice in all countries of the world, and the highest rule of behavior for people to deal with children's affairs. The principle of the best interests of the child is embodied in article 3, paragraph 1, of the Convention on the Rights of the Child, which states: "The best interests of the child shall be a primary consideration in all acts concerning children, whether committed by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (primary consideration)." The new uninsured law clearly establishes the principle of "the most beneficial to minors", which is equivalent to the "principle of the best interests of children" in the Convention, as the basic principle, which reflects the responsible attitude of China to actively fulfill the obligations of international conventions. The whole new uninsured law (including Article 49, of course) should abide by this basic principle and play its commanding and guiding function. When the audio-visual media reports on incidents involving minors, they should always put the most beneficial to minors above the principles of "objectivity", "prudence" and "moderation". They should not only respect their status of "one vote veto", but also pay attention to the original interpretation function of their "first principle". When the specific principles conflict with each other or are difficult to choose, the basic principles most beneficial to minors should be taken as the understanding and application standard. For example, on April 13, 2021, an appalling incident in Shenyang, Liaoning Province, in which a minor man and a woman were beaten and forced to have sex, was reported by the audio-visual media. When reporting, some media not only quoted the Shenyang police's "Police Information Bulletin", but also described some "heinous" plots in detail, and some even added videos circulated on the Internet to the report. These reports are generally "objective and true", and some of them basically meet the requirements of "prudence", but most reports are difficult to meet the requirements of "moderation", and even more difficult to meet the basic principle of "most beneficial to minors. Such a report is not only not conducive to the protection of the injured minors, but also detrimental to the necessary protection of the injured minors, which should be corrected. The principles of "objectivity", "prudence" and "moderation" should be implemented through the guidelines for audio-visual media news reporting. In addition to the basic principle of "most beneficial to minors", the principles of "objectivity", "prudence" and "moderation" in Article 49 of the new uninsured law should be further refined in practice to promote its use in audio-visual media. Effective application in news reporting work. One of the feasible ways is to formulate unified news reporting guidelines for minors in audio-visual media by relevant audio-visual media industry associations. At present, my country's relatively specific guidelines for news reports on minors in the audio-visual media are the "Convention on Self-Discipline in TV Propaganda Work for Minors" drafted and formulated by the China Radio and Television Association. The self-regulatory convention, which entered into force on 1 June 2007, has demonstrated a high standard and is relatively specific and enforceable. In the current era of media integration and for a period of time in the future, in response to the dramatic changes in the audio-visual media landscape, it is necessary to follow the principles established by the new uninsured law, compare the successful experience of Western developed countries and my country's Hong Kong and Taiwan, and combine the characteristics of my country's news management. Referring to the research results of scholars, starting from the positive (goal to be achieved) and negative (problem to be overcome), develop a new era of specific and enforceable guidelines for news reporting by minors in audio-visual media. As the theoretical basis for the construction of news reporting guidelines, in addition to the basic principle of "most beneficial to minors" emphasized in this article, there are several issues that need to be clarified. First, the adult audience's right to know news should be appropriately restricted due to the protection of minors' rights and interests. Of course, while considering the best interests of minors, the audio-visual media can take a variety of methods to ensure the right of adults to know, such as adjusting the broadcast time and network layout of certain news, producing different news versions, and so on, so as to achieve a balance between the rights and interests of the two. Second, gradually realize the production and broadcasting of classified audio-visual news programs. In terms of production, it can be divided into two categories: "news program production for underage audiences" and "news program production for general audiences and specialized audiences. In terms of broadcasting, the first type of programs should be encouraged to broadcast, and full consideration should be given to the broadcast time and the network page to ensure the communication effect. The second category of programs should gradually establish specific systems such as a broadcast restriction system, a live news report restriction system, a special information prompt system, a system for audio-visual media linking to third-party websites, a process for editing and publishing articles on mobile network news platforms, and news release by social media. Third, after formulating the guidelines for news reporting of minors in audio-visual media, efforts should be made to strengthen the implementation. It is recommended to establish an appropriate monitoring body for the implementation of news reporting guidelines, give news reporting guidelines a certain degree of mandatory binding force, clarify the penalties for violating news reporting guidelines, and focus on strengthening the supervision of audio-visual media news information services established by non-news units. Conclusion On December 29, 2021, China will celebrate the 30th anniversary of the ratification of the Convention on the Rights of the Child by the Standing Committee of the National People's Congress. "We the Children: End-decade review of the follow-up to the World Summit for Children", considered by the United Nations General Assembly at its twenty-seventh special session, begins with the statement "We are all once children. We all want the happiness of our children, which has been and will continue to be the most universally cherished aspiration of humankind." In the protection of minors, audiovisual media organizations have a special status and a great responsibility. The principles of "objectivity", "prudence" and "moderation" established in Article 49 of the new uninsured law, if they can "comply with the basic principles that are most beneficial to minors, supplemented by the specific guidelines for audio-visual media news reports", they will definitely There has been a qualitative leap in the reporting of incidents involving minors. In the broad field of juvenile news reports, it will also gradually improve professional standards. In this way, it is not only conducive to the protection of minors, but also conducive to promoting the whole society to respect the subject personality of minors, and ultimately realize the best interests of minors.
2021-11-15
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2021-11
Introduction On November 8, 2021, the Shenzhen Intermediate People's Court delivered a personal bankruptcy liquidation ruling (2021) Yue 03 Breaking No. 417 (11) to Hu, the country's first legal sense of the "natural person bankrupt" appeared. For personal bankruptcy, some people may have questions, this "Laolai" for a long time not to return the property, to promote the personal bankruptcy system, is not to protect these "Laolai" reasonable legal not to pay back the money? In this paper, the author from how to better balance the interests of the debtor and creditors to explore the personal bankruptcy system, in order to give readers some inspiration. Text The background of the development of the 1. personal bankruptcy system. In 2007, when China's bankruptcy law was introduced, it did not set up a personal bankruptcy system, because the banking system, legal framework and other supporting facilities were not sound enough, and the time for the establishment of a personal bankruptcy system was not mature enough. On June 15, 2017, the Supreme People's Court responded to Pan Dingxin's proposal to establish and implement a personal bankruptcy system: "The establishment and implementation of a personal bankruptcy system will help individuals or families in serious financial difficulties to pass personal bankruptcy procedures in accordance with the law., Exempt certain debts, so that they can re-achieve normal production and life through hard work. Thus, the personal bankruptcy regime has a more important protective effect on individuals or families in serious financial distress." "However, the personal bankruptcy system involves many factors such as the establishment and improvement of the personal credit system and the further development of the commercialization or marketization of commercial banks. At the same time, the implementation of the personal bankruptcy system requires legislation by the National People's Congress or its Standing Committee. We believe that with the development and improvement of the socialist market economic system with Chinese characteristics, the National People's Congress or its Standing Committee will formulate the the People's Republic of China bankruptcy law in due course on the basis of summing up the experience in the implementation of the individual enterprise bankruptcy law. The Supreme People's Court will actively cooperate with the relevant state departments to promote the implementation of the personal bankruptcy system." In July 2019, the Supreme People's Court, the National Development and Reform Commission, the People's Bank of China and other 13 units jointly issued the "Accelerating the Improvement of the Market Exit System Reform Plan" clearly proposed to promote the establishment of a natural person bankruptcy system step by step. In February 2019, the Supreme Court announced the Opinions on Deepening Implementation Reform and Improving the Long-term Mechanism for Solving Implementation Difficulties-People's Courts' Implementation Work Outline (2019-2023), which shows that the people's courts will carry out pilot projects with functions equivalent to the personal bankruptcy system. jobs. In August 2019, the General Office of the State Council issued a document requesting the study of the establishment of a personal bankruptcy system, with particular attention to the issue of joint and several liability of natural persons related to corporate bankruptcy. On June 2, 2020, the standing Committee of the Shenzhen Municipal people's Congress issued a document on the public solicitation of opinions on the regulations on personal Bankruptcy in Shenzhen Special Economic Zone (draft for soliciting opinions). The legal work Committee of the standing Committee of the Shenzhen Municipal people's Congress revised and improved the regulations on personal Bankruptcy in Shenzhen Special Economic Zone (draft for soliciting opinions) according to the deliberation opinions. On August 31, 2020, the Standing Committee of the Shenzhen Municipal People's Congress issued the Regulations on Personal Bankruptcy of the Shenzhen Special Economic Zone, which will come into force on March 1, 2021. On December 1, 2020, the Intermediate People's Court of Dongying City, Shandong Province, as the pilot court of the personal bankruptcy system determined by the Shandong Provincial High Court, issued the Implementation Opinions on the Liquidation of Personal Debt (Trial). On December 2, 2020, the Higher People's Court of Zhejiang Province issued the Notice of Guidance (Trial) on the Centralized Liquidation of Personal Debts (Class Personal Bankruptcy) in Zhejiang Courts, providing working guidance for the full exploration of the personal bankruptcy system in the centralized liquidation of personal debts. The 2. personal bankruptcy system is not an umbrella for "old scoundrels". The personal bankruptcy system can not be the umbrella of "Lao Lai", and not all individual debtors can apply for bankruptcy. The standard of debtors in the personal bankruptcy system is "honest and unfortunate debtors". The relevant local laws and regulations and local judicial interpretation documents have made specific provisions for the "honest and unfortunate debtor. Article 2 of the regulations of the Shenzhen Special Economic Zone on personal Bankruptcy stipulates: "if a natural person who has lived in the Shenzhen Special Economic Zone and has participated in Shenzhen social insurance for three consecutive years, if he or she loses the ability to pay off debts or has insufficient assets to pay off all debts due to production, operation and living consumption, bankruptcy liquidation, reorganization or reconciliation may be carried out in accordance with these regulations." Article 9 stipulates that "when the debtor is unable to pay off the debts due, creditors who individually or jointly hold more than 500,000 yuan of due claims against the debtor may apply to the people's court for bankruptcy liquidation of the debtor." The Notice on the Work Guidance (Trial) of Zhejiang Court on Centralized Settlement of Personal Debts (Class Personal Bankruptcy) stipulates that "natural persons with Zhejiang household registration, living in Zhejiang Province and participating in social insurance or paying personal income tax in Zhejiang Province for three consecutive years cannot pay off their due debts, and their assets are insufficient to pay off all debts or obviously lack solvency. They may apply for centralized liquidation of personal debts in accordance with these guidelines. Individual industrial and commercial households may refer to these guidelines for debt centralized liquidation." Article 3 of the Opinions on the Implementation of Personal Debt Liquidation (Trial) issued by the Intermediate People's Court of Dongying City, Shandong Province, stipulates that "a natural person who lives in the jurisdiction of Dongying City, whose assets are insufficient to pay off all debts or who obviously lacks solvency, and who meets one of the following conditions, may carry out debt liquidation in accordance with this opinion: (1) A natural person who has entered bankruptcy proceedings or has gone bankrupt and provided guarantee liability for the liabilities for the corporate; (II) natural persons who are unable to pay off their due debts due to difficulties in production and business activities and cannot be executed by the compulsory execution procedures of the people's court; (III) other natural persons whose personal debts are deemed necessary by the people's court. The above-mentioned debtors shall be in good faith from beginning to end in the proceedings of trial, arbitration, enforcement and personal debt liquidation, and there shall be no acts of evading debts in the name of personal debt liquidation, and there shall be no other acts of dishonesty that may affect their ability to perform. The spouse of the above-mentioned debtor may also apply for debt liquidation in accordance with this Opinion." Article 5 stipulates: "In addition to the circumstances specified in Article 3 of this opinion, the debtor shall also meet the following conditions: (1) Both the debtor and his spouse have made a comprehensive and truthful property declaration; (II) the debtor's spouse agrees to accept the people's court The investigation of its property situation, including the investigation of its bank flow for a certain number of years as appropriate; the adult immediate family members or other family members of the applicant for personal debt liquidation may agree to cooperate with the property investigation when necessary; the (III) debtor undertakes in writing not to carry out the high consumption and non necessary consumption behaviors prohibited by Article 3 of the provisions of the Supreme People's Court on restricting the high consumption and related consumption of the person subject to execution; The debts applied for liquidation by the (IV) debtor are not labor debts." As the review body of personal bankruptcy, the court must abide by the principle of prudence and strictness, and set strict application conditions from the beginning, so as to cut off some people's ideas of opportunity and prevent debtors from using the personal bankruptcy system for illegal purposes. For example, the Intermediate People's Court of Guangdong Province is hearing the case of (2021) Yue 03 Po Shen No. 217 (6). The court reviewed that Li and his ex-wife formed a joint debt. After the divorce, Li borrowed excessively in his own name, returned the joint debt of the husband and wife, and applied for personal bankruptcy liquidation for the new debt. The court ruled that it would not accept the application. 3. personal bankruptcy system will guard the creditor's "money bag" (I) creditors should hold on to property interests from the source For the creditors of financial institutions, they have a sound financial lending system and set up a model threshold for lenders. Information on the debtor's assets can be queried, or the debtor can be required to provide the appropriate mortgage security, and in the event of a situation where the lender is unable to return it, the financial institution can rely on the assets secured by the mortgage to be paid in priority. For creditors of companies, enterprises or natural persons, it is necessary to keep in mind the risk awareness when lending, whether there is a risk of not getting back the creditor's rights. Although due diligence cannot be fully done, risk prevention should also be done when lending. The first is to clarify the asset status of the debtor (lender) and whether it has the ability to repay. Second, it is best to require the debtor to provide corresponding guarantees or guarantees, especially large loans must be very cautious. Third, the general loan between natural persons, it is important to write down the contents of the loan agreement, the debtor's relevant information, the payment of the account and other information. If necessary, a lawyer may be asked to conduct due diligence on the debtor or to review the loan agreement. (II) in the personal bankruptcy system, how to protect the interests of creditors? Although the personal bankruptcy system provides an opportunity for those "honest and unfortunate debtors" to be reborn, creditors cede part of the property interests and give debtors a chance to re-develop and survive. For creditors, it is also an opportunity to help realize the collective settlement of creditors, put an end to individual settlement, and ensure that mortgage claims have the right of priority payment, and ordinary creditors can pay off in proportion. For creditors, the existing provisions are as follows: Article 16 of the Regulations of the Shenzhen Special Economic Zone on Personal Bankruptcy stipulates: "Within 15 days from the date on which the people's court discloses the bankruptcy application, creditors may, individually or jointly, recommend to the people's court the candidate for the bankruptcy administrator (hereinafter referred to as the administrator)." Article 17 stipulates that "if the people's court agrees to the candidate of the administrator recommend by the creditors, it shall make a decision to appoint the administrator at the same time when it decides to accept the bankruptcy application. The expenses of the administrator for the performance of his duties shall be paid in advance by the person who recommended him. If several creditors recommend different candidates for the administrator, the people's court may appoint one or more administrators from among them." The notice of Zhejiang court on the work guidance of centralized liquidation of personal debts (similar personal bankruptcy) (for Trial Implementation) stipulates that "in the centralized liquidation of personal debts, social intermediary institutions and their practicing lawyers, practicing certified public accountants, or public administrators of government departments may be appointed to act as managers of centralized liquidation of personal debts. It is also possible for creditors and debtors to jointly negotiate the selection of administrators among the institutions listed on the roster and their practicing lawyers, practicing certified public accountants, or public officials in government departments." Therefore, creditors in the personal bankruptcy stage, carefully choose the recommend manager is also a very important thing. In addition, creditors should actively exercise their rights at the stage of personal bankruptcy or when the people's court accepts an application for liquidation of personal debts. Mainly reflected in the following aspects: (1) Timely declaration of claims; (2) Participation in creditors' meetings; (3) the exercise of the right to vote of creditors; (4) Supervision of the work of the administrator. The author summarizes Although there are a large number of individuals who are "insolvent and unable to pay off personal debts", the corresponding number of creditors is even larger, and the history of market economy in China is still short, social integrity is not ideal, and there are many phenomena of fraud and debt evasion. therefore, when appropriately protecting "honest and unfortunate debtors", more efforts should be made to protect "kind and unfortunate creditors". Personal bankruptcy system only close to the national conditions and balance the interests of both sides of the debt, in order to achieve the release of private or personal economy from the economic point of view to speed up the improvement of the market subject exit system reform, from the judicial point of view to solve a large number of "zombie cases" can not be implemented to improve the judicial efficiency of the establishment of the purpose. Finally, the author quotes a sentence from Liao Huihui scholar: "In the pilot implementation of the personal bankruptcy system, the protection of the interests of creditors should be increased, the interests of debtors should be appropriately protected, and the fraud of the personal bankruptcy system should be prevented."
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Viewpoint... Discussion on the protection system of the company's shareholders' right to know.
Foreword The corporate governance structure regulated by China's Company Law implements the principle of capital majority decision, and the majority shareholder obtains control of the company through the more capital it invests, which in itself conforms to the principle of consistency of rights and obligations. Under this system, some shareholders, especially small and medium-sized shareholders, are in a weak position of information asymmetry because they do not directly participate in the operation and management of the company, so China's Company Law provides for the protection of shareholders' right to know. The following author tries to analyze the protection and improvement of shareholders' right to know. Text The right of shareholders to know refers to the right of shareholders to know and understand the important information of the company's business situation, and some scholars have defined the right to know as "the right of shareholders to obtain the company's information and understand the company's situation". The author believes that the shareholders' right to know should include the following aspects. Shareholders' right of inspection Article 33 of China's Company Law stipulates that shareholders shall have the right to consult and copy the articles of association, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the supervisory board and the financial and accounting reports. Shareholders may request access to the accounting books of the company. If a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose and may damage the legitimate interests of the company, it may refuse to provide access, and shall reply to the shareholders in writing within 15 days from the date of the written request of the shareholders and explain the reasons. If the company refuses to provide inspection, the shareholder may request the people's court to require the company to provide inspection. Article 97 Shareholders shall have the right to consult the articles of association, the register of shareholders, the stubs of corporate bonds, the minutes of the general meeting of shareholders, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports, and to make suggestions or inquiries about the operation of the company. The Company Law provides for the right of informed inspection of shareholders of limited liability companies and shareholders of limited liability companies, respectively. However, the author thinks that the company law is not very clear about the shareholders' right of access, and there are differences in the actual treatment. Shareholders' right to question and the board's duty to explain The right of shareholders to question is the right of shareholders to question and ask questions to the management of the company on issues related to matters considered at the general meeting of shareholders in accordance with legal procedures, and the management of the company is obliged to explain and answer questions to shareholders' questions. The setting of the right of inquiry can reduce the information asymmetry between the small and medium-sized shareholders of the company and the management of the company, so that the shareholders can make up for the lack of information by asking questions, and to a certain extent form the supervision and checks and balances of the management of the company. The scope of the content of the right to question is not stipulated in our company law. In this regard, national legislation generally provides in a general manner that shareholders can only exercise the right to question on specific matters and is limited to matters related to the subject of the general meeting of shareholders. The author believes that the scope of matters to be questioned by shareholders should be limited as the scope of the company's affairs is extremely wide, and if shareholders are allowed to question matters related to or unrelated to the issues of the general meeting of shareholders, it will easily lead to the abuse of shareholders' rights to the detriment of the company and the interests of shareholders. The Company Law does not specify whether the subject of the exercise of the right to question shareholders is limited to shareholders present at the general meeting or includes all shareholders of the company who are not present at the general meeting, whether it is limited to voting shareholders or includes non-voting shareholders. The author believes that shareholders who do not attend the general meeting of shareholders can still exercise the right of inquiry, but only through the agent to exercise this right, the agent should submit a power of attorney to the company when exercising the right of inquiry. As to whether non-voting shareholders can exercise the right of inquiry, since the exercise of the right of inquiry will not lead to the leakage of confidential information of the company, there should be no restriction on the qualification of shareholders to exercise their right of claim. As long as they have the status of shareholders of the company, regardless of the proportion of shares held or the length of time held, whether they are voting shareholders or non-voting shareholders, they can request the board of directors and the board of supervisors of the company to accept inquiries on relevant matters. Company inspector selection system The right to request the selection of inspectors refers to when shareholders have legitimate reasons to suspect that there are major facts in violation of laws, administrative regulations or articles of association in the process of operation and management of the company, or when the operators of the company seriously violate the obligations of loyalty and good management, and damage the interests of the company and shareholders, they have the right to investigate the operation and financial situation of the company through the shareholders' (general) meeting, administrative organs and judicial organs. Compared with the shareholders' right of access and inquiry, the system of selection of inspectors can make up for the lack of professional knowledge of shareholders, and bring targeted factual information to shareholders. Of course, in the process of performing his duties, the inspector shall perform the obligation of confidentiality for the important information of the company he knows. If the company's interests are damaged due to fault, the inspector shall bear the corresponding responsibility, but the consequences arising from the normal performance of his duties shall be exempted from liability. The perfection of the system of shareholders' right to know 1, first of all, the provisions of the shareholders' right to know to refine, for the exercise of shareholders' right to know to get a thorough protection. 2. The shareholders' right to know can be appropriately restricted to prevent individual shareholders from abusing their right to know and infringing on the rights and interests of the company. The author suggests that appropriate restrictions can be imposed on the number of years of shareholder ownership and the proportion of shareholder ownership. 3. Appropriate punitive consequences may be provided for acts that prevent shareholders from properly exercising their right to know. 4, the shareholder's right to know the pre-conditions of litigation. In order to prevent abuse of litigation and to play the role of supervisors and supervisory boards, the company law may provide for the preconditions for the right to know litigation. Before filing a lawsuit, a shareholder shall first submit a written request to the company for a reply from the company's management; if the company's management fails to reply after the expiration of a certain period of time, it shall request to the supervisor or the board of supervisors, and the supervisor or the board of supervisors shall not reply within the time limit before filing a lawsuit. Concluding remarks Although, China's "Company Law" has made great progress in the protection of shareholders' informed rights and interests, so that shareholders' rights and interests can be better protected and relief. However, the real realization of rights and interests will still be troubled by the realistic level, so the author thinks that we should actively learn from the advanced experience of foreign countries and establish a shareholder rights and interests protection system centered on the principle of shareholder equality and guaranteed by the corresponding litigation mechanism.
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Real estate perspective: how much do you know about real estate taxes?
On October 23, 2021, the 31st meeting of the Standing Committee of the 13th National People's Congress decided to authorize the State Council to carry out pilot real estate tax reform in some regions. The pilot implementation of this policy is of great significance. It is one of the very important policies in the tide of real estate system reform and is closely related to the lives of ordinary people. In this paper, the real estate tax pilot problem to carry out the following analysis: Development of Real Estate Tax in 1. In 2011, the collection of personal property tax has been piloted in Shanghai, Chongqing and other places. Among them, Shanghai only levies property tax on the increment, that is, the part with more than 60 square meters per capita, while Chongqing levies property tax on the stock of single-family houses (180 square meters of tax-free area) and the increment of high-grade houses (100 square meters of tax-free area). The valuation is based on historical transaction prices, and the tax rate is between 0.4 and 0.6. However, in the pilot process of the past ten years, the increase in housing prices in Shanghai and Chongqing is not inferior to that of the surrounding cities that have not levied property taxes; In August 2013, the then Minister of Finance Lou Jiwei and the Director of the Development and Reform Commission Xu Shaoshi both proposed to "expand the scope of the pilot reform of personal housing property tax", and the focus gradually shifted to the current real estate tax legislation; On August 5, 2015, the real estate tax law entered the legislative planning of the National People's Congress for the first time; On March 9, 2019, the second session of the 13th National People's Congress further pointed out that the real estate tax law is being drafted; On March 14, 2021, the "Outline of the Fourteenth Five-Year Plan for the People's Republic of China National Economic and Social Development and the Long-term Goals for 2035" proposed to promote real estate tax legislation, improve the local tax system, and gradually expand the power of local tax administration; On May 11, 2021, the responsible comrades of the four ministries and commissions of the Ministry of Finance, the Budget Working Committee of the Standing Committee of the National People's Congress, the Ministry of Housing and Urban-Rural Development, and the State Administration of Taxation presided over a symposium on the pilot work of real estate tax reform in Beijing to listen to the opinions of some city people's governments and some experts and scholars on the pilot work of real estate tax reform, of which Jinan is listed. On October 16, 2021, "Seeking Truth" published an article "Solidly Promoting Common Prosperity", proposing to actively and steadily promote real estate tax legislation and reform, and do a good job in pilot work. 2. the basis for the real estate tax pilot (I) regulations and policy basis On October 23, 2021, the 31st meeting of the standing Committee of the 13th National people's Congress adopted the decision of the standing Committee of the National people's Congress on granting the State Council to carry out the pilot work of real estate tax reform in some areas (hereinafter referred to as the "decision"). The standing Committee of the National people's Congress authorized the State Council to carry out pilot work of real estate tax reform in some areas. The purpose of the "Decision" is to actively and steadily promote the legislation and reform of real estate tax, guide the rational consumption of housing and the economical and intensive use of land resources, and promote the stable and healthy development of the real estate market. The "Decision" clarified that the objects of real estate tax are residential and non-residential real estate, excluding legally owned rural homesteads and their above-ground residences. Taxpayers are land-use rights holders and house owners. Among them, non-residential real estate continues to be implemented in accordance with the "Interim Regulations on the People's Republic of China Property Tax" and "Interim Regulations on the People's Republic of China Urban Land Use Tax. The specific measures for the pilot real estate tax shall be formulated by the people's governments of the pilot areas. The State Council and its relevant departments and the people's governments of the pilot areas shall establish a scientific and feasible collection management model and procedures. The author believes that the "decision" has pointed out the path for the future real estate tax reform, that is, to implement the legal principle of taxation and promote the reform by formulating the "real estate tax law" by the National People's Congress. (II) interpretation of the decision 1. Expropriation scope The real estate tax in the pilot areas is levied on all kinds of real estate, such as residential and non-residential use, excluding legally owned rural homesteads and their upper residences. Residential real estate mainly includes commercial housing, affordable housing, housing reform housing, fund-raising housing, resettlement housing, military delivery housing, small property rights housing, etc. Non-residential houses, including operating and non-operating, such as office buildings, shops, factories, warehouses, garages, etc., are not applicable to the new real estate tax plan, and continue to follow the previous property tax and land use tax regulations. implement. It should be noted that houses built on rural homesteads have not enjoyed the dividends brought by urbanization development like commercial houses. Rural homesteads owned by law and houses built on homesteads are not within the scope of this real estate tax pilot. However, illegally held rural homesteads and houses built on this basis should fall within the scope of real estate tax. In addition, it is still uncertain whether the small property right house needs to pay real estate tax. On the one hand, the small property right house belongs to the residential house, which is in line with the scope of taxation. On the other hand, the small property right house is built on rural collective land, and basically has not handled the property right registration. If it is taxed, it is objectively difficult. 2, adhere to the legislation first In line with the previous principle of "legislation first, full authorization, and step-by-step advancement", in accordance with the principle of active and prudent, overall consideration is given to deepening the pilot and unified legislation to promote the stable and healthy development of the real estate market. 3, by the city policy The State Council shall formulate specific measures for the pilot real estate tax, and the people's governments of the pilot areas shall formulate specific implementation rules. Referring to the pilot situation in Shanghai and Chongqing in the early stage, that is, the State Council and various ministries and commissions are responsible for drafting the real estate tax pilot measures (draft), proposing the pilot cities, and the local people's governments decide on the collection objects, collection standards, collection tax rates and other detailed rules within their jurisdiction. 4. Purpose of expropriation The purpose of levying real estate tax is to guide the rational consumption of housing and the economical and intensive use of land resources, promote the stable and healthy development of the real estate market, and ultimately achieve common prosperity. 5. The pilot period is 5 years Counting from the date of issuance of the State Council's pilot measures. In the course of the pilot, the State Council shall summarize the experience of the pilot in a timely manner. When conditions are ripe, laws are enacted in a timely manner. Real estate tax legislation may not be widely implemented in the past five years. How do 3. determine the real estate tax rate? As of 2018, the per capita housing area in cities and towns is 39 square meters, and the average household is about 1.1 units. Among them, the proportion of three units is as high as 10%, which means that many families cannot afford one unit. The ultimate goal of levying a real estate tax is to replace land finance, promote common prosperity, and transform the track to achieve high-quality development. The focus of real estate tax reform is how to make low-income people feel happy, but the middle class does not feel pain. Specific need to clarify the following points: 1. Tax basis Many views believe that the tax basis of real estate tax should not be the transaction value at that time, but the market value or assessed value of the house. However, the real estate tax is a direct tax, and only the assessed value of the house is used as the tax basis of the real estate tax. The tax burden is too heavy, and the people will have a significant "sense of pain", which will affect residents' consumption and reproductive desire, and ultimately affect the sustainable development of the economy. Therefore, we should not consider the real estate tax rate from the perspective of housing market value, but from the perspective of residents' "affordability. Based on this, in the case of high housing prices, in order not to reduce the happiness of the people, the real estate tax rate should not be too high. 2. Determination of tax rates The market value of houses in each city and even each district is different, and the consumption ability of ordinary people is also very different. The unified tax rate will not achieve real fairness. It is recommended to calculate the disposable income of households based on the per capita disposable income of each district, so as to infer the amount of tax that the people can accept, and then divide the amount by the market value of the house to determine the real estate tax rate in the district. For example, in 2020, the per capita disposable income of residents in the country will be 32189 yuan, with 2.62 people per household, and the average annual household income will be 84300 yuan. The acceptable tax payment for ordinary people is about 1500 yuan per year. Assuming that the national average house price in 2020 is 9860 yuan per square meter and the average area is 39 square meters, the market value of a house is about 380000 yuan, the reverse real estate tax rate should be about 1500 yuan/380000 yuan = 0.4%. 4. question on whether the first set is exempt In the previous pilot project in Shanghai, the first suite was exempted from real estate tax, but it is unknown whether the new pilot project will still enjoy the first exemption, because the first exemption will lead to a large number of houses in third-and fourth-tier cities, and everyone will go to first-and second-tier cities to buy houses, or cause everyone to concentrate in the city center to buy houses, aggravating population loss and rising housing vacancy rates. 5. the impact of the introduction of real estate tax? 1, increase the market supply of second-hand housing Based on the dual attributes of real estate investment and consumption, the collection of personal housing property tax is aimed at the holders of residential real estate, which increases the real estate holding cost of investors and real estate speculators, and limits the purchase demand of speculators or real estate speculators. For speculators who hold multiple sets of real estate, in order to prevent the continuous loss of their interests, they will choose to transfer the cost by renting or sell to avoid risks, the market supply of second-hand housing will also increase, and under this system, developers' future expectations of real estate market demand will decline, forcing developers to tighten supply and reduce the vacancy rate of existing storage. 2, reduce market demand, real estate market prices temporarily fell. A real estate tax would reduce real estate developers' expectations of future consumer demand for home purchases. However, the production cycle of housing is relatively long, immediately know that the supply of housing in the future is greater than the demand can not adjust the supply in time, the supply of housing in the real estate industry will not change in the short term, but the demand for housing will decrease, the supply will remain unchanged and the demand will decrease, the equilibrium price will decrease briefly, but will not decrease in the long term. References: 1. Wu Shaofen, Lin Lina, Wu Hongyi, Wu Xueling, Analysis of the Expected Impact and Effect of Individual Housing Property Tax on Housing Prices [J] Economic Research, 2021(1); 2, Zhao Fengjun, real estate tax pilot do not follow the old path, the national social science fund project "China's housing vacancy rate status quo, causes and solutions to study" (20BJY073) results; 3, Liu Xiaobo, "real estate tax, or beyond your imagination", public number: Liu Xiaobo said finance. Attachment: "Decision of the Standing Committee of the National People's Congress on Authorizing the State Council to Carry out Pilot Real Estate Tax Reform in Some Regions" (Adopted at the 31st Session of the Standing Committee of the 13th National People's Congress on October 23, 2021) In order to actively and steadily promote the legislation and reform of real estate tax, guide the rational consumption of housing and the economical and intensive use of land resources, and promote the stable and healthy development of the real estate market, the 31st meeting of the Standing Committee of the 13th National People's Congress decided to authorize the State Council to carry out pilot work on real estate tax reform in some areas. The real estate tax in 1. pilot areas is levied on residential and non-residential real estate, excluding legally owned rural homesteads and their upper residences. The owner of the land use right and the owner of the house are the taxpayers of the real estate tax. Non-residential real estate continues to be implemented in accordance with the "Interim Regulations on the People's Republic of China Property Tax" and the "Interim Regulations on the People's Republic of China Urban Land Use Tax. 2. the State Council to formulate specific measures for the pilot real estate tax, and the people's governments of the pilot areas to formulate specific implementation rules. The State Council and its relevant departments and the people's governments of the pilot areas shall establish a scientific and feasible collection management model and procedures. 3. the State Council, in accordance with the principle of being active and prudent, comprehensively consider deepening the pilot and unified legislation, and promote the stable and healthy development of the real estate market to determine the pilot areas, and report to the Standing Committee of the National People's Congress for the record. The pilot period authorized by this decision is five years, starting from the date of issuance of the State Council's pilot measures. In the course of the pilot, the State Council shall promptly sum up the experience of the pilot and report the pilot to the standing Committee of the National people's Congress six months before the expiration of the period of authorization, and if it is necessary to continue to authorize, it may put forward relevant opinions, which shall be decided by the standing Committee of the National people's Congress. When conditions are ripe, laws are enacted in a timely manner. This Decision shall come into force as of the date of promulgation, and the time for launching the pilot program shall be determined by the State Council.
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Legal provisions Companies Act (I) A40 Where a limited liability company has a board of directors, the shareholders' meeting shall be convened by the board of directors and presided over by the chairman of the board; if the chairman of the board is unable to perform his duties or fails to perform his duties, the vice-chairman shall preside over the meeting; if the vice-chairman is unable to perform his duties or fails to perform his duties, more than half of the directors shall jointly elect a director to preside over the meeting. Where a limited liability company does not have a board of directors, the shareholders' meeting shall be convened and presided over by the executive director. If the board of directors or the executive director is unable to perform or fails to perform the duty of convening the shareholders' meeting, the board of supervisors or the supervisor of the company without the board of supervisors shall convene and preside over the meeting; if the board of supervisors or the supervisor does not convene and preside over the meeting, the shareholders representing more than one tenth of the voting rights may convene and preside over the meeting by themselves. (II) Association Law 1. Companies Act A22 Resolutions made by the shareholders' meeting, the shareholders' meeting or the board of directors of the company in violation of laws or administrative regulations shall be null and void. If the convening procedure or voting method of the shareholders' meeting or the meeting of the board of directors violates laws, administrative regulations or the articles of association of the company, or the content of the resolution violates the articles of association of the company, the shareholders may request the people's court to revoke the resolution within 60 days from the date of the resolution. Where a shareholder brings an action in accordance with the provisions of the preceding paragraph, the people's court may, at the request of the company, require the shareholder to provide a corresponding guarantee. If the company has gone through the change registration in accordance with the resolution of the shareholders' meeting, the shareholders' meeting 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. 2. (IV) of Provisions of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law A4 If a shareholder's request to revoke the resolution of the shareholders' meeting or the general meeting of shareholders or the board of directors complies with the provisions of Article 22 of the Company Law, the people's court shall support it, but the procedure for convening the meeting or the voting method is only slightly flawed and does not have a substantial impact on the resolution, the people's court shall not support it. case and analysis (I) case 1: the supreme court-Guangxi jinwuyue energy group co., ltd. and Guangxi material reserve co., ltd. confirm the civil judgment of invalid contract dispute retrial [(2019) supreme fa min zai no 35, July 30, 2019] The Supreme People's Court believes that the first paragraph of Article 40 of the the People's Republic of China Company Law stipulates: "A limited liability company shall establish a board of directors, and the shareholders' meeting shall be convened by the board of directors and presided over by the chairman; if the chairman is unable or fails to perform his duties, the vice chairman shall be presided over; if the vice chairman is unable or fails to perform his duties, more than half of the directors shall jointly elect a director to preside, you can have a vice chairman. The method for the selection of the chairman and vice-chairman shall be stipulated in the articles of association of the company"; Article 47 stipulates: "the meeting of the board of directors shall be convened and presided over by the chairman of the board of directors; if the chairman is unable or fails to perform his duties, the vice-chairman shall be convened and presided over by more than half of the directors". As the person in charge of the board of directors, the chairman of the board of directors bears important responsibilities for the overall development, production and operation of the company. Therefore, with reference to the above-mentioned provisions of the the People's Republic of China Company Law, when the chairman is unable to perform his duties for some reason, he should transfer his power or re-election through legal procedures, but not through the overall general authorization of the individual. In this case, when Yuan Jianwei was unable to normally perform his duties as chairman and legal representative due to residential surveillance, he issued a "Power of Attorney" to Ding Haishun without a resolution of the company's shareholders meeting or board of directors, and entrusted him to "Perform the powers of the chairman and legal representative of the material reserve company, keep the company's official seal and carry out company business activities in accordance with the law", the authority of the chairman and legal representative of the company is generally authorized to Ding Haishun, which violates the above-mentioned provisions of the the People's Republic of China Company Law. Ding Haishun cannot obtain the authority of the legal representative and chairman of the material reserve company. The act of signing the "Creditor's Rights Transfer Contract" with the Material Group Company is an unauthorized representative, not the true intention of the Material Reserve Company." Summary 1: In this case, the Supreme Court held that the chairman (executive director) could not transfer the legal obligation to convene and preside over the shareholders' meeting by way of authorization, and the relevant authorization was invalid. (II) Case 2: Shandong High Court-Zhang Wei, Ji Changjian, Jinan Tianjian Construction and Installation Engineering Co., Ltd. and other companies resolution dispute retrial review and trial supervision ruling [(2020) Lu Minshen 5448, August 31, 2020] The Shandong Higher People's Court believes that based on the facts ascertained in this case, the convener of the shareholders meeting of Tianjian Real Estate Company on January 25, 2019 was actually Tianjian Real Estate Company, the company's supervisor and the major shareholder Tianjian Jian'an Company. The convening procedure complies with the law. The moderator of the meeting recorded in the notice of convening an interim shareholders' meeting is not a member of the board of directors or the board of supervisors of Tianjian Real Estate Company, but Jia Mingkai, the legal representative of the major shareholder of Tianjian Real Estate Company. Therefore, in accordance with the relevant provisions of the Company Law, the original effective judgment determined that Tianjian Real Estate Company had certain defects in the organizational procedures of the shareholders' meeting, which was in line with objective facts and judicial guidance. The Supreme People's Court on the application<中华人民共和国公司法>Article 4 of the (IV) on certain issues stipulates: "if a shareholder requests to revoke the resolution of the shareholders' meeting or the general meeting of shareholders or the resolution of the board of directors in accordance with the provisions of paragraph 2 of Article 22 of the Company Law, the people's court shall support it, but if the procedure for convening the meeting or the voting method is only slightly flawed and does not have a substantial impact on the resolution, the people's court shall not support it". The specific circumstances of minor defects are not clearly stipulated in the company law and the relevant judicial interpretations, but in judicial practice, the criterion should be whether the procedural defects lead to the fair participation of the shareholders, the formation of the majority meaning and the access to the information needed for this. In this case, Tianjian Real Estate Company, the company's supervisors and major shareholders jointly issued a notice to inform the company's shareholders 15 days in advance. The applicants Ji Changjian and Zhang Wei received the notice of convening the shareholders' meeting and entrusted their agents to attend the shareholders' meeting and exercised their voting rights. Their channels for obtaining information and expressing their opinions were smooth. Therefore, to sum up, the original effective judgment found that although there were defects in the convening procedure of the shareholders' meeting of Tianjian Real Estate Company on January 25, 2019, it did not prevent shareholders from obtaining the required information and exercising their voting rights. It should be a minor defect, which does not affect the effectiveness of the resolution of the shareholders' meeting, and rejects the applicant's litigation request, which is clear in fact and correct in applicable law. Summary 2: In this case, the specific circumstances of minor defects are not clearly stipulated in the company law and relevant judicial interpretations, but in judicial practice, whether the procedural defects lead to the fair participation of shareholders, the formation of majority meaning and the acquisition of the information needed for this should be the criterion. Only the host is defective and should not be deemed invalid. (III) Case 3: Jinan Intermediate People's Court-Wenzhou Dongtou Yuanyuan Mariculture Co., Ltd. and Jinan Yindu Real Estate Development Co., Ltd. resolved to revoke the second-instance judgment of the dispute [(2019) Lu 01 Min Zhong No. 650, March 14, 2019] Jinan Intermediate People's Court holds that Article 12 of the Articles of Association of Yindu Company stipulates: "The shareholders' meeting shall be convened by the board of directors and presided over by the chairman. If the chairman is unable to perform or fails to perform his duties, a director jointly elected by more than half of the directors shall preside over the meeting." In response, the court believes that according to the above provisions of the company law and the articles of association of yindu company, the failure to preside over the interim shareholders' meeting is not the legal cause and necessary condition for revoking the resolution of the interim shareholders' meeting. The resolution of the interim shareholders' meeting involved states that more than half of the directors of the board of directors elected Huang Songmin as the convener and moderator of the interim shareholders' meeting, and the participating shareholders Qiao Sen Company, Financial Services Company, Kodar Company, Kodar Company, more than half of the shareholders of Yindu Company passed the resolution of the interim shareholders' meeting involved in the case; Teng Yuanfang is not a shareholder of Yindu Company, and he himself did not raise any objection to his failure to preside over the interim shareholders' meeting; and the board of directors of Yindu Company held on the same day of the interim shareholders' meeting formed a resolution to remove Teng Yuanfang from the post of chairman, which was unanimously approved by other directors of Yindu Company except Teng Yuanfang himself, therefore, it is not feasible for Teng Yuanfang to preside over the interim shareholders' meeting. To say the least, even if an interim shareholders' meeting is reconvened, the voting results of the resolutions of the shareholders' meeting will not change based on the existing facts and the voting ratio agreed in the articles of association of Yindu Company. Yuan Yuan Company claims that the convening of the above-mentioned shareholders' meeting and the resolution of the shareholders' meeting infringed upon its rights and interests as a minority shareholder holding 28.3 percent of the shares of Yindu Company, which has no factual and legal basis and is not supported by the Court. Summary 3: In this case, the Jinan Intermediate People's Court believes that the failure to convene a shareholders' meeting in accordance with the Company Law A40 will not affect the effectiveness of the resolution of the shareholders' meeting under the circumstances that there is room for the Articles of Association, the chairman cannot convene normally, and the voting results of the voting ratio orientation will not change. (IV) Case 4: Second Instance of Resolution Dispute between Jinan Intermediate People's Court-Jinan Tianjian Construction and Installation Engineering Co., Ltd. and Zhang Wei and Other Companies [2020 Lu 01 Min Zhong No. 882, April 2, 2020] The Jinan Intermediate People's Court believes that according to Article 40 of the Company Law: "Where a limited liability company establishes a board of directors, the shareholders meeting shall be convened by the board of directors and presided over by the chairman; if the chairman is unable to perform his duties or fails to perform his duties, the vice chairman shall preside over; If the vice chairman is unable to perform his duties or fails to perform his duties, more than half of the directors shall jointly elect a director to preside. Where a limited liability company does not have a board of directors, the shareholders' meeting shall be convened and presided over by the executive director. If the board of directors or the executive director is unable to perform or fails to perform the duty of convening the shareholders' meeting, the board of supervisors or the supervisor of the company without the board of supervisors shall convene and preside over the meeting; if the board of supervisors or the supervisor does not convene and preside over the meeting, the shareholders representing more than one tenth of the voting rights may convene and preside over the meeting on their own". According to the facts ascertained in this case, the convener of the shareholders' meeting of Tianjian Real Estate Company on January 25, 2019 is actually Tianjian Real Estate Company, the company's supervisor and the major shareholder Tianjian Jian'an Company, so the convening procedure of the shareholders' meeting is in line with the above legal provisions. In the notice of convening an interim shareholders' meeting, the actual moderator of the meeting is not a member of the board of directors or the board of supervisors of Tianjian Real Estate Company, but Jia Mingkai, the legal representative of the major shareholders of Tianjian Real Estate Company. Therefore, Tianjian Real Estate Company has certain defects in the organization procedure of the shareholders' meeting. Article 4 of the interpretation IV of the Company Law stipulates: "if the shareholders' request to revoke the resolutions of the shareholders' meeting or the general meeting of shareholders or the board of directors conforms to the provisions of paragraph 2 of Article 22 of the Company Law, the people's court shall support it, but if there are only minor defects in the convening procedure or voting method, and there is no substantial impact on the resolution, The Company Law and its judicial interpretation do not clearly stipulate the specific circumstances of minor defects, in practice, it is possible to determine whether procedural defects will lead to equitable participation by shareholders, the formation of majority meaning and access to the information needed for this. Tianjian Real Estate Company, the company's supervisors and major shareholders jointly issued a notice informing the company's shareholders 15 days in advance. Ji Changjian and Zhang Wei had no objection to the fact that they had received the notice of convening the shareholders' meeting, and entrusted their agents to attend the shareholders' meeting and exercised their voting rights. Their channels for obtaining information and expressing their intentions were smooth. Therefore, to sum up the above analysis, although there are defects in the convening procedure of the shareholders' meeting of Tianjian Real Estate Company on January 25, 2019, it does not prevent shareholders from obtaining the required information and exercising their voting rights, which should be a minor defect and will not affect the effectiveness of the resolution of the shareholders' meeting. Therefore, Ji Changjian and Zhang Wei requested the revocation of the resolution of the shareholders' meeting on the grounds of procedural violations, and the Court did not support it. Summary 4: In this case, Jinan Intermediate People's Court held that under the condition that all shareholders received the notice and sent personnel to attend the shareholders' meeting without raising any objection, the host's inadequacy was a minor defect and did not affect the validity of the resolution of the shareholders' meeting. scholar's point of view (I) "systematic interpretation of procedural defects in shareholders' meeting resolutions" (Jianghai Journal, No. 2, 2019; Peng Zhenming, born in 1963, professor and doctoral supervisor of Hainan University Law School; Wen Changqing, born in 1993, researcher of Financial Law Research Center of Xiamen University) The statutory requirements for presiding over acts are provided for in articles 40 and 10 of the Companies Act. Because of the ambiguity of language expression, it is still doubtful whether it belongs to peremptory norm or arbitrary norm. The moderator plays an important role in maintaining the order of the meeting, controlling the process of the meeting and ensuring the freedom of shareholders to speak and discuss. Violation of the rules of chairmanship specified in the Company Law or the Articles of Association of the Company constitutes a defective chairmanship in the meeting. As the core of collective meeting activities, the host is the key figure to form the democratic discussion atmosphere and organize democratic voting activities. The leading role of the moderator in the proceedings of the meeting directly or indirectly affects the formation of the resolution of the shareholders' meeting. Articles 40 and 101 of China's Company Law clearly stipulate the rules for determining the right to preside over the meeting, and these two provisions do not use the words "should" and "must" and other words embodied as mandatory rules, nor do they have a proviso that the articles of association of the company or all shareholders may agree separately. In fact, the arrangement of the presiding power is the pre-selection of the presiding officer of the meeting by the shareholders collectively, the presiding role of the presiding officer does not necessarily directly affect the meaning of the individual shareholders to vote freely, the control of the order of the meeting does not mean that the result of the voting can be influenced, and the free will of the shareholders is not bound by the meeting procedure. Therefore, the provisions of the articles of association on the right to preside over the meeting have priority over the provisions of articles 40 and 101 of the Company Law. In violation of the provisions of the Company Law or the Articles of Association on the right to preside over the meeting by a person without the right to preside over the meeting constitutes a defect in the right to preside over the meeting. The rules for determining the right to preside as stipulated in the Company Law or the Articles of Association of the Company are the collective pre-approval of the qualifications of the presiding officer of the meeting by the shareholders' meeting. In the process of the shareholders' meeting, a person without the right to preside over the meeting who does not meet the legal or statutory requirements shall preside over the meeting. If all the shareholders present at the meeting do not express any objection to the hosting behavior, it also constitutes the collective recognition of the shareholders' qualification of the host. The identification and confirmation of the collective will of the shareholders' meeting does not constitute an obstacle, so the defect of the right to preside does not constitute a cause affecting the effectiveness of the resolution. On the contrary, if the shareholders participating in the meeting express clear objection to the qualification of the moderator, the defect of the right of hosting will have an impact on the shareholders' sense of identity with the form of the meeting, and then affect the expression of the individual free meaning of shareholders, that is, the identification and confirmation of the collective meaning of the shareholders' meeting constitutes an obstacle, shareholders who express their express disagreement with the qualifications of the presiding officer at the shareholders' meeting shall have the right to apply to the court to revoke the resulting resolution of the shareholders' meeting within the prescribed period of exclusion. (II) Tang Xin's "On the Character of Company Law-Forced Law or Arbitrary Law" ["Chinese Law" No. 1, 2001] and Liu Junhai's "The Art of Balance between Corporate Autonomy and Judicial Intervention: Innovation, Defects and Reinterpretation of" Interpretation IV of Company Law "[" Law Journal "No. 12, 2017] are consistent with the above views. Conclusion The Supreme Court of (I) tends to hold that the Companies Act A40 is an effective compulsion.</中华人民共和国公司法>
2021-11-11
11
2021-11
Foreword The Ministry of Education and the Ministry of Finance issued the "Administrative Measures for Student Internships in Secondary Vocational Schools" (hereinafter referred to as the "Measures"), which mainly refers to secondary vocational schools in accordance with the requirements of professional training objectives and the arrangement of teaching plans, and organize students to The teaching practice and internship conducted by employers such as enterprises are important contents of professional teaching in secondary vocational schools. For students, internship is the process of applying theoretical knowledge to practice, and it is an important part of learning during school and about to enter the workplace. Through internships, students can accumulate practical experience, increase social experience, adapt to social life early, increase opportunities for future employment, and facilitate the smooth connection between school study and employment. During the internship, students often encounter legal disputes. The common legal disputes mainly include work injury, personal injury, violation of discipline and property safety. The author mainly discusses the problem of work-related injuries in order to give readers some enlightenment. Text A work-related injury is an injury caused by an accident at work or an occupational disease. The following situations shall be recognized as work-related injuries: 1. Accident injury due to work during working hours and in the workplace; 2. Accident injury due to work-related preparatory or finishing work in the workplace before and after working hours; 3. Accidental injury due to violence and other accidents due to the performance of work duties during working hours and in the workplace; 4. Occupational disease; 5. During the period of going out of work, the person is injured due to work reasons or the whereabouts of the accident are unknown; 6. On the way to and from get off work, the person is injured by a motor vehicle accident; 7. Other circumstances that should be recognized as work-related injuries as stipulated by laws and administrative regulations. Whether interns should be protected by labor law is currently the theory of whether there are two views and affirmative. 1. negation says In this view, the intern is still a student at school, not a worker in the legal sense, and there is no factual or legal labor relationship between him and the internship unit. therefore, under the current legal system, the relationship between the intern and the internship unit is not a labor relationship and is not adjusted by the labor law. The main laws and regulations are based on the second article of the Ministry of Labor's Explanation on Certain Provisions of the the People's Republic of China Labor Law, which stipulates that the scope of application of the labor law to workers includes three aspects:(1) workers in state organs, institutions and social organizations;(2) non-workers in institutions that implement enterprise management;(3) Other workers who establish labor relations with state organs, institutions and social organizations through labor contracts (including employment contracts). In addition, issued by the Ministry of Labor on the implementation of<中华人民共和国劳动法>Article 12 of the opinions on several issues also stipulates that students who use their spare time to work-study programs are not regarded as employment and may not sign labor contracts without establishing labor relations. Therefore, it can be seen that the relevant laws and regulations of our country and the relevant judicial interpretations have made clear provisions on the age, educational background and whether they are included in the scope of employment security, while the interns in school do not have these "conditions for workers". Therefore, internship students cannot be regarded as workers in the sense of the "the People's Republic of China Labor Law". They have no labor relationship with the internship unit, so they do not have the main qualification for work-related injuries during the internship period. In legal practice, this view represents the views of most people, especially the staff of the government labor and social security departments, and some places have made this view clear. For example, Article 17 of the "opinions on the implementation of the regulations on Industrial injury Insurance" made by the Chongqing Municipal Bureau of Labor and Social Security stipulates that the regulations on Industrial injury Insurance are not applicable to retirees employed by employers, students from colleges and universities, technical schools and vocational Senior high school. With regard to this provision, lawyer Zhou Litai, who is famous for his labor lawsuits in China, applied to the Chongqing municipal government to revoke the regulation made by the bureau, but it ended in failure. 2. must say This view holds that interns belong to the legal "labor subject", "contract subject" or "work injury compensation subject", and have labor relations with the employer during the internship and should be adjusted by the labor law. The main reason is: according to the Labor Law and the Law on the implementation of<中华人民共和国劳动法>The "Opinions on Several Issues" stipulates that there are five kinds of people who are not within the norms of the labor law; the first is the national civil servant; the second is the staff of institutions and social organizations that implement the civil service system; the third is rural workers; the fourth is active military personnel; the fifth is family nanny. These five categories of personnel are strictly restricted to not being regulated by the Labor Law, and school interns are not included. According to the third paragraph of Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, work-related injuries that fall within the scope of labor relations and work-related injury insurance adjusted by the Work-related Injury Insurance Regulations shall be handled in accordance with the Work-related Injury Insurance Regulations. Although the "Work-related Injury Insurance Regulations" do not expressly stipulate that interns are "work-related injury compensation subjects", however, the relevant explanatory clauses in the regulations have included this subject. Article 61 of the regulations stipulates: "The employees referred to in these regulations refer to various labor relations (including de facto labor relations) with the employer. Workers in various forms of employment and various periods of employment." The so-called employees or workers of various forms of employment and various periods of employment are the main body in the regulations on Industrial injury Insurance, and interns are naturally included in it. In addition, the de facto labor relationship is particularly emphasized. There is no labor contract between the students who go to the unit for internship and the internship unit, but there is only a labor agreement, but it also forms a de facto labor relationship with the internship unit. Especially for students who are on-the-job internships, the content of their work is not much different from that of regular employees, so the legal provisions will form de facto labor relations as the scope of adjustment. Author's point of view and reasons Article 61 of the "Trial Measures for Industrial Injury Insurance for Enterprise Employees" piloted by the Ministry of Labor on October 1, 1996 once stipulated that "if a casualty accident occurs to a student of a college, technical school, or vocational Senior high school who has an internship in an enterprise participating in industrial injury insurance, the local industrial injury insurance agency may refer to the relevant treatment standards of these Measures and issue a one-time treatment. The industrial injury insurance agency does not charge insurance fees from the relevant schools and enterprises." In other words, the old industrial injury insurance method is to recognize that interns have the main qualification of workers, so they are included in the scope of industrial injury insurance. Before the promulgation of the regulations on industrial injury insurance, interns may refer to the employees of the unit to enjoy the treatment of industrial injury insurance. However, after the implementation of the "Work Injury Insurance Regulations", interns no longer belong to the scope of work injury insurance protection. Because the prerequisite for the identification of work-related injuries is the existence of labor relations, and interns cannot form labor relations with employers because of their student status, and interns cannot participate in work-related injury insurance, so injuries during work cannot be recognized as work-related injuries. However, the intern has formed an employment relationship with the employer, and the intern can require the employer to bear the compensation liability of the employer according to the judicial interpretation of the Supreme Court on personal injury compensation. The dispute is not a labor dispute and is treated as general personal injury compensation. </中华人民共和国劳动法></中华人民共和国劳动法>
2021-11-11
10
2021-11
Question raised In September 2019, Company A applied to the court to preserve Company B's $12 million maturity claim against Company A. In January 2020, the court entered into a judgment determining that Company A has a monetary preservation claim of $10 million against Company B. In November 2019, Company B pledged $46 million of its maturing claims on Company A to Company C and registered a pledge of accounts receivable. In March 2020, the court issued a judgment in the case of Company C v. Company B and Company A's accounts receivable pledge dispute, determining that Company C has a secured monetary claim of 40 million yuan against Company B and Company A. After the accounts receivable pledge dispute case entered the enforcement procedure, Company A believed that as a creditor who preserved the monetary creditor's rights, it could not exclude the enforcement of the secured monetary creditor's rights. It was meaningless to file an enforcement objection and an enforcement objection lawsuit, nor could it file a third party's cancellation lawsuit. At the same time, Company A also believes that the judgment of the accounts receivable pledge dispute is correct, and as an outsider, it cannot apply for a retrial of the effective judgment. Therefore, Company A can only object to the court's enforcement action, the enforcement court rejected Company A's objection to stop the enforcement action, and then the higher court rejected Company A's application for reconsideration. As a preservation creditor, can Company A defend its legitimate rights and interests by opposing the effective judgment of another case through a third party's revocation, an outsider's execution of an objection, or an outsider's application for a retrial? Problem reasoning (I) the third person to withdraw the action 1. Whether the preservation creditor is the qualified plaintiff of the third party's revocation. (1) Negative views. The Interpretation and Application of the Minutes of the National Court Civil and Commercial Trial Work Conference published by the People's Court Publishing House in December 2019 on Article 120 of the Minutes of the Conference: Preservation will deprive or restrict the right of ownership, use, income and disposition of the executed person, and at the same time the applicant shall have priority in the distribution of the proceeds from the disposal of the preserved property. The creditor's right to priority payment is not a substantive right to the seized assets. The outsider cannot participate in the original trial litigation in the name of the seizure person, so he or she cannot file an avoidance action in the name of a third party. Supreme People's Court Bulletin Case (2017) Supreme Law Minzong No. 319 Civil Ruling Judgment Summary: According to Article 56 of the Civil Procedure Law, the subject who has the right to bring a lawsuit for revocation by a third party shall be strictly limited to the two categories of third parties with independent claim and without independent claim as stipulated in the first two paragraphs of this article, the subject of the right to bring a third-party revocation action cannot be extended to outsiders with ordinary claims other than the two types of third parties stipulated in Article 56 of the Civil Procedure Law. Ordinary creditors have a certain de facto relationship with the original case in terms of whether the claim can be realized, but this de facto relationship is different from the legal interest. Ordinary creditors do not belong to the third party without independent claim under Article 56, paragraph 2, of the Civil Procedure Law. It can be seen that the Supreme People's Court has strictly limited the plaintiff's qualifications for filing a third-party revocation suit, and generally does not allow ordinary creditors to file a third-party revocation suit, except for the circumstances stipulated in Article 56 of the Civil Procedure Law and Article 120 of the Minutes of the National Court's Civil and Commercial Trial Work Conference. (2) Affirmation of opinion. The article "Judgment Criteria of" Case Handling Results Have Legal Interests with Him "published in the Minutes of the Judges' Meeting of the Second Circuit Court of the Supreme People's Court (Series 2) published by the People's Court Publishing House in April 2021 holds that after the general creditor applies to the court to seize the property of the executed person, the seized property belongs to the property that cannot be disposed of according to the property law and relevant provisions of enforcement, however, due to operational reasons or internal working procedures of the institution, the executed person establishes a mortgage on the seized property and confirms through a mediation letter that others can exercise the mortgage, and the general creditor has a" legal interest "in the case of the executed person and the other person's lawsuit to confirm the mortgage". The latest view of the Supreme People's Court is that there is a conflict of civil rights between the creditor who applies for court preservation of a specific property and the right holder who has other civil rights in the specific property, and there is a legal interest. A third party without an independent claim right to file a third party revocation lawsuit. 2. The preservation creditor is the qualified plaintiff of the third party's revocation. Article 24, paragraph 1, of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Enforcement by People's Courts [2020 Amendment] stipulates: "The transfer, burden of rights or other acts that hinder the execution of the property that has been sealed up, seized or frozen by the person subject to execution shall not be opposed to the person applying for execution." On November 4, 2004, the "Two Highs" judicial database "Understanding and Application of the Provisions of the Supreme People's Court on Seizure, Seizure and Freezing of Property in Civil Execution by People's Courts" interprets Article 26, paragraph 1 (amended to Article 24, paragraph 1, in 2020) of the Provisions: The Provisions have two meanings: First, the executed person transfers, sets mortgage, pledges, leases and other dispositions of the sealed property, the applicant for execution may still request the execution of the property on the basis of the claim contained in the execution basis, without being restricted by the above-mentioned disposition, and there is no need to consider protecting the interests of the counterpart of the disposition. Second, on the premise of not prejudicing the purpose of the seizure and protecting the interests of the executor, in order to protect the security of the transaction, maintain the order of the transaction and promote the transaction, the transfer, setting of burden or other acts that hinder the effect of the seizure by the executor are still valid. The Supreme People's Court's "Understanding and Application of Real Rights in the Civil Code" published by the People's Court Publishing House in July 2020 interprets Item (V) of Article 399 of the Civil Code (Item 5: Property sealed up, detained and supervised according to law shall not be mortgaged) and holds that the mortgage contract signed with the sealed up or detained property as the mortgaged property is still legal and valid, then when the property is movable property, in view of the adversarial registration of movable property mortgage, the mortgage is validly established from the date of the mortgage contract, at which point the question arises as to whether the mortgage takes precedence over the seizure of the claim. If the mortgage is considered to take precedence over the seizure of the claim, the function of the seizure and seizure system will be completely overhead. Therefore, even if it is considered that the mortgage has been established at this time, it cannot take precedence over the seizure and seizure of the claim. In my opinion, after taking protective measures against a particular property, the preservation creditor has a procedural distribution priority over the particular property, and any subsequent disposition of the particular property by the preserved person, even if confirmed by the effective judgment of another case, cannot be opposed to the preservation claim. When the same specific property is burdened with the preservation claim and other civil rights determined by the effective judgment of another case, the effective judgment of another case will inevitably affect the realization of the preservation claim, and there must be a legal interest between the preservation creditor and the effective judgment of another case. Company A's preservation of money claims and Company C's secured money claims are directed to Company B's accounts receivable, the two have a legal interest, Company A as the third party in the dispute over the quality of accounts receivable, is the third party to cancel the lawsuit of the appropriate plaintiff. Of course, whether Company A can finally file a third-party revocation lawsuit depends on whether it meets the relevant conditions stipulated by law and judicial interpretation. (II) Outsiders to Execute Objection 1. The effect of preservation does not mean that the creditor has a substantive right to preserve the property. According to article 24, paragraph 1, of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Enforcement by the People's Court (2020 Amendment), the preservation creditor has priority over the preservation of property, and the priority of this distribution procedure is not a substantive right to the preserved property. The Supreme People's Court's interpretation of Article 120 of the Minutes of the National Court's Civil and Commercial Trial Work Conference also holds that the preservation of the creditor's priority right to compensation is not a substantive right to the preserved property. On July 28, 2020, the first civil court of Shandong high court answered some questions about the trial of the execution objection lawsuit. it was believed that if the outsider filed the execution objection lawsuit to exclude the execution on the grounds of having legal priority such as security right of the execution object and priority compensation right of construction project price, the legal priority only affects the order of compensation and does not belong to the reason of excluding the execution, in general, the outsider should be informed of the resolution through the implementation of the objection review procedure or the allocation scheme objection procedure. 2. The preservation creditor's objection to the execution of the preservation of property and the objection will not be supported by the court. According to Article 24 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by People's Courts (2020 Amendment), the preservation creditor must provide evidence to prove that he has a substantive right to the preserved property and that the right can exclude enforcement. The procedural distribution priority enjoyed by the preservation creditor over the preserved property does not belong to the substantive rights stipulated in Articles 25 and 26 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court (2020 Amendment). The preservation creditor's objection and objection to the execution of the subject matter of the execution of the judgment in another case (preservation of property) will not be supported by the court. Company A, as a preservation creditor, does not enjoy civil substantive rights to Company B's due claims, and cannot file an execution objection and objection to the subject matter of execution, or the execution objection or objection of Company A will not be supported by law. (III) outsiders apply for retrial 1. Relativity of preservation effect. The interpretation of item (V) of article 399 of the civil code in the understanding and application of the real right compilation of the civil code, the interpretation of article 120 of the minutes of the meeting in the understanding and application of the minutes of the national court's civil and commercial trial work, and the article "the validity of the ruling on real estate seizure and the protection of bona fide third parties" in the minutes of the second court of civil trial of the supreme people's court-the court: the effect of preservation is relative, that is, any disposition of the property by the person being preserved shall not be opposed to the applicant for preservation, and shall not be entitled to disposition for the relative. Whether a counterpart who is not entitled to dispose of constitutes a bona fide acquisition under article 311 of the Civil Code (article 106 of the Property Law) depends on whether the preservation decision is publicized. The article "The Effectiveness of Real Estate Seizure Decisions and the Protection of Bona fide Third Parties" in the "Minutes of the Judges' Meeting of the Second Civil Trial Division of the Supreme People's Court-Tracing the Jurisprudence Behind the Decision" holds that the court's adoption of preservation measures on specific property does not ipso facto have the effect against bona fide third parties, unless publicity has been completed. If the preservation is not publicized, the person being preserved shall dispose of the property to be preserved, and the relative may still obtain civil rights in accordance with the system of good faith acquisition. In my opinion, if the preservation ruling has been publicized by posting a seal, public notice, registration or other means sufficient to let others know, there is no question of the good faith of the counterpart when he has no right to dispose of it, and the counterpart cannot obtain civil rights on the basis of the system of good faith acquisition. Conversely, the counterpart may acquire civil rights under the system of good faith acquisition. 2. The preservation creditor may apply for a retrial of another judgment that has not been heard in accordance with the rules of law in good faith. After the preserved person has no right to dispose of the preserved property to the counterparty, if the preserved person or the counterparty sues in another case to determine the relationship of civil rights and obligations between the preserved person and the counterparty, because the case involves the unauthorized disposition of the preserved property, the court In addition to hearing the case in accordance with the demands of the parties, it should also determine the facts and apply the law in accordance with the legal rules obtained in good faith. If the court does not hear the case in accordance with the legal rules obtained in good faith, there is a high possibility that there is an error or partial error in the effective judgment of the other case, and the preservation creditor may consider applying for a retrial of the effective judgment of the other case. Company A applied to the court to preserve Company B's 12 million yuan due creditor's rights to Company A. There was no public announcement, no seal could be posted, and no registration and publicity could be carried out. Company C could not know the fact that the accounts receivable were preserved through the public announcement. According to Article 61, paragraph 2, of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code, Company C shall verify with Company A the authenticity, legality and completeness of Company B's accounts receivable. Company C is not a bona fide third party under Article 311 of the Civil Code (Article 106 of the Property Law) if Company C fails to perform its verification obligations or is informed by Company A that the accounts receivable are preserved, and there may be problems with the dispute over the pledge of accounts receivable not being heard in accordance with the legal rules of bona fide acquisition. If there is a problem with the effective judgment of another case, Company A will have the opportunity to apply for a retrial, but it should meet other conditions stipulated by law and judicial interpretation. Questions for reference Since Company A does not enjoy civil substantive rights to the subject matter of execution, it cannot file an execution objection or objection to the subject matter of execution as an outsider, or the execution objection or objection of Company A will not be supported by law. According to Article 227 of the Civil Procedure Law and Article 423 of the Judicial Interpretation of the Civil Procedure Law, since Company A has not raised any objection to the subject matter of execution, it cannot apply for a retrial of the effective judgment of another case as an outsider. The entry into force of another judgment may be problematic if it is not tried in accordance with the rules of law obtained in good faith. Company A has the opportunity to file an action to revoke the effective judgment of another case as a third party without an independent claim. The third person's right of revocation is one of the paths of the right to relief, whether it works or not is another matter.
2021-11-10
09
2021-11
Typical cases | Administrative dispute over schooling for children of migrant workers
Brief of the case With the continuous influx of migrant population into big cities, how to arrange the enrollment of migrant workers' children has become an important work of the local education administrative department. There are a large number of migrants in a certain district. In recent years, the influx of migrants has far exceeded the growth rate of educational resources. The number of school-age children of migrant workers has increased sharply, and the supply of educational resources is highly tight. In the face of such a constantly intensifying contradiction between supply and demand, the Education Bureau of a certain district, according to the requirements of its superiors and after full investigation, and drawing lessons from the practices of Beijing, Shanghai and other provinces and cities, implemented a quantitative allocation policy, so as to achieve scientific allocation and solve as many problems as possible for the children of migrant workers. However, the number of applicants in some schools in the jurisdiction far exceeds the enrollment limit, and some school-age children are unable to attend the registered schools, which causes the parents of the students to be dissatisfied with the education department, which leads to disputes or lawsuits. This case is a typical example. In this case, the plaintiff Zhang's household registration is located in a village in a county and lives in a residential area in a district. When Zhang reached the age of admission, Zhang's parents submitted to a district education bureau application materials such as household registration certificate, work certificate, residence permit, individual business license, etc., and a district education bureau made quantitative scores on the spot based on the materials submitted by him. The total score was 25 points, and Zhang's father signed the score confirmation form. Since then, a district education bureau announced that the enrollment score for the children of migrant workers in its jurisdiction was 19.5 points, and at the same time announced the remaining degrees of each elementary school. Zhang's father applied to a district experimental primary school through the Internet, and agreed to obey the overall adjustment arrangement of the Education Bureau in accordance with the principle of relative proximity if the school has real difficulties in receiving it. After the education bureau told Zhang's father that his daughter's quantitative score did not reach the admission score of 26.5 in a district experimental primary school, she needed to apply for the second time as soon as possible according to the vacant degree in the existing school, but Zhang's father refused to apply for the second time. In order to protect Zhang's right to receive education, a district education bureau transferred him to Tianmou Road Primary School according to the principle of relatively nearby enrollment. Zhang's mother signed the admission notice of Tianmou Road Primary School. Later, Zhang filed an administrative lawsuit with a district people's court, asking the court to revoke the decision of a district education bureau to transfer him to Tianmou Road Primary School and reschedule him to study in a district experimental primary school. The main reasons stated by the plaintiff are: 1. a district education bureau's quantitative scoring policy for the children of migrant workers is illegal; 2. schools are the main body of enrollment work, and a district education bureau has no right to make a decision on the plaintiff's application for admission; 3. the plaintiff lives in a district experimental primary school district, priority should be given to the plaintiff's enrollment nearby. A district education bureau violated the plaintiff's right to equal compulsory education. On September 1, that is, during the trial of the lawsuit, the plaintiff reported to Tianmou Road Primary School. Undertaking process After accepting the entrustment of the Education Bureau, the attorney carefully studied the case and prepared for the lawsuit from the following aspects: First, summarize the laws and regulations, normative documents and related policies related to compulsory education at the national, provincial, municipal, and district levels. In particular, focus on the regulations on the enrollment of children of migrant workers; second, collect relevant cases and articles from all over the country, find out the expert opinions or court judgments that support the claims of the education department; Third, straighten out the evidence materials, and divide the materials submitted by the plaintiff and the materials made by the education bureau and the school from the application for quantitative assignment to the period of enrollment, so as to prevent omissions. On this basis, carefully write the defense, and compile the above-mentioned materials in different categories, list the evidence, and submit them to the court within the prescribed time limit. Proxy opinion In response to the plaintiff's claims and the reasons for the prosecution, the attorney mainly replied from the following three aspects: 1. District Education Bureau has the right to formulate the enrollment policy of its jurisdiction in combination with the actual situation Article 6 of the Regulations on Compulsory Education in Shandong Province stipulates: "Compulsory education is implemented in a system of overall planning and implementation by the provincial people's government, organization and implementation by the municipal people's government divided into districts, and management by the county (city, district) people's government. The education administrative departments of the people's governments at or above the county level are specifically responsible for the implementation of compulsory education; other relevant departments do a good job in the implementation of compulsory education in accordance with their duties." Article 3 of the Municipal Education Bureau's "Opinions on School Enrollment at the Stage of Compulsory Education in a City" stipulates: "The children of migrant workers who apply for admission must bring the household registration certificate that proves the relationship between the children, the work certificate (employment contract, the" five insurance "payment document paid by the unit or the social security payment document paid by the individual, the business license, etc.), and the temporary residence permit (Residence permit), proof of current residence (rental) to the Education Bureau of the county (city) district where the current residence is located to go through the relevant procedures. The certificate of consent to go out to receive compulsory education issued by the education administrative department of the original place of household registration may be submitted after enrollment. The education administrative departments of all counties (cities) and districts shall, on the basis of investigation, publicize the remaining degrees of the school in advance, and actively explore the method of quantifying the admission conditions according to the education capacity, the remaining degree situation and the number of children of migrant workers who move with them, and give priority to arranging the children of migrant workers with higher scores to go to school." Therefore, a district education bureau, as the local education administrative department, has the right to formulate enrollment plans and related policies in accordance with the requirements of laws and superior documents, combined with the actual situation of the region. A district education bureau requires the plaintiff to submit relevant materials and quantify them, which is in full compliance with the relevant provisions of laws and regulations. The 2. education department has the right to make overall arrangements for school-age children to attend schools. Article 14 of the regulations of Shandong Province on compulsory Education stipulates: "if school-age children or teenagers whose parents or other legal guardians work or live in places other than their registered residence receive compulsory education in their parents' or other legal guardians, their parents or other legal guardians shall hold their own identity, residence and employment certificates, Apply to the school of the school district where the place of residence is located. If it is really difficult for the school to accept, the education administrative department of the people's government of the county (city, district) where it resides shall make overall arrangements to study in public schools in accordance with the principle of relatively nearby enrollment." According to the above provisions, although the school is the main body of enrollment work, the education department has the right to make overall arrangements for school-age children to attend schools when there are real difficulties in receiving them. Therefore, if the plaintiff is not admitted to a district experimental primary school, a district education bureau has the right to transfer him to Tianmou Road Primary School in the jurisdiction. A district education bureau in 3. protected Zhang's right to receive compulsory education in accordance with the law. The "relative proximity principle" does not refer to the school that is closest in a straight line to the address of residence, but to the school that is relatively close to its location. The plaintiff stated in the complaint: "Agree to obey the defendant's overall adjustment and arrangement according to the principle of relative proximity if the school has real difficulties in receiving it", proving that the school is subject to adjustment. A district education bureau arranged the plaintiff to attend Tianmou Road Primary School, which is less than 3 kilometers away from home and has the highest teaching conditions in a district, according to the number and distribution of migrant workers' accompanying children in the region, which is in full compliance with the above provisions. The plaintiff had agreed to attend school, and a district education bureau guaranteed his equal right to compulsory education. court decision The court of first instance held that the plaintiff, as a school-age child, had the right to receive compulsory education. When the plaintiff applied for admission, although his household registration was not in a certain district, his parents worked in a certain district, and the plaintiff now lived in a certain district with his parents. The plaintiff had the right to receive compulsory education in a certain district. The defendant, a district education bureau, as the district education administrative department, has the authority to recruit students at the compulsory education stage. The defendant can formulate specific enrollment policies according to the actual situation of a certain district. The scoring criteria adopted by the defendant at the enrollment stage are equally applicable to school children who are not registered in a certain district, and there is nothing improper. The plaintiff applied to the defendant to study in an experimental primary school in a certain district. According to the application materials submitted by the plaintiff, the score was 25 points, which did not reach the minimum score of 26.5 points in an experimental primary school in a certain district. The defendant arranged for him to attend Tianmou Road Primary School, which is relatively close to his home, which has already guaranteed the plaintiff's equal right to receive compulsory education. The judgment rejected the plaintiff Zhang's claim. The plaintiff appealed against the judgment of the first instance, and the court of second instance held that the appellant Zhang, as a school-age child of the children of migrant workers, had the right to receive compulsory experimental education with his parents in accordance with the law. A certain district is an area with a large population of migrant workers. According to the Municipal Education Bureau's Opinions on School Enrollment in the Compulsory Education Stage, in order to protect the equal right to education, the appellee, as the education authority, formulates relevant issues in accordance with the provisions of the higher-level documents and the actual situation of the region. The policy does not violate the restrictive provisions of the law. The appellant's legal representative chose a district experimental primary school through the appellee's online registration system and was not admitted to the school. The appellant chose to obey the transfer, and the appellee transferred the appellant to Tianmou Road Primary School, which is relatively close to his parents' place of residence, according to the vacant degree of primary school in the area under his jurisdiction, and has enrolled in school, thus ensuring his right to compulsory education. The appellee's transfer was not improper and did not violate the prohibition. The appellant's request for revocation of the transfer was not justified and the Court did not support it. The appellant's failure to be admitted to a district experimental primary school was an act made by the school. The appellee did not make the act of transferring the appellant from a district experimental primary school. Therefore, the appellant's request to order the appellee to transfer him back to an experimental primary school was not supported by the court. The court of first instance found that the facts were clear, the application of the law was correct and should be maintained in accordance with the law. The judgment rejected the appeal and upheld the original judgment. case analysis There are four main points of controversy in this case: Is the adjustment made by the 1. District Education Bureau to the plaintiff actionable? The adjustment decision made by the District Education Bureau has had a practical impact on the plaintiff's rights and interests in education. It is a specific administrative act, which falls within the scope of accepting cases stipulated in Article 12 of the Administrative Procedure Law and is actionable. Does the 2. District Education Bureau have the right to formulate relevant policies for the enrollment of children of migrant workers? According to Article 6 of the Regulations on Compulsory Education in Shandong Province and the Opinions on School Enrollment in a City's Compulsory Education Stage, a district education bureau, as the local education administrative department, obviously has the right to formulate enrollment policies based on local actual conditions. It is legal to assign quantitative scores to the children of migrant workers, and require schools to enroll from high to low. Does the 3. District Education Bureau have the right to adjust the school attended by the plaintiff? According to Article 14 of the regulations on compulsory Education in Shandong Province, it is not the school to which the plaintiff applies for admission, the school must arrange for him to attend. If the school has real difficulties in accepting it, the local education administrative department can make overall arrangements in accordance with the principle of relatively nearby enrollment. Does the adjustment made by the 4. District Education Bureau violate the plaintiff's right to equal access to compulsory education? The plaintiff's score did not reach the admission score of a district experimental primary school. The district education bureau arranged for him to study in Tianmou Road Primary School, which is relatively close to his home, and has already guaranteed his equal right to receive compulsory education. Case-handling thinking Government departments should do a good job in the legal risk style of the formulation of relevant normative documents. Article 47 of the Provisions on Administrative Procedures of Shandong Province: "The formulation of normative documents shall be conducted by means of symposiums, demonstration meetings and public solicitation of opinions. Where the contents of the normative documents involve significant public interests, where the public has significant differences that may affect social stability, or where laws, regulations and rules provide for a hearing, the drafting department shall organize a hearing." The notice of the Legislative Affairs Office of the provincial government on the implementation of the unified registration, unified numbering and unified publication system of normative documents (Lu Fu Fa [2011] No. 56) clearly requires that from January 1, 2012, all normative documents should be examined for legality, and the system of unified registration, unified numbering and unified publication (hereinafter referred to as the "three unification" system) should be implemented in the legal institutions of the people's government at the same level; normative documents that do not implement the "three unifications" system are valid until December 31, 2015. The documents will automatically expire on January 1, 2016 and shall no longer be used as the basis for administrative management. Therefore, documents related to major public interests formulated by government departments must strictly follow the requirements for the formulation of relevant normative documents in the ''Administrative Procedure Regulations of Shandong Province'', and extensively solicit public opinions by organizing hearings and holding demonstration meetings, and go to the legal system in accordance with the law. The department conducts unified registration, unified numbering and unified publication. Otherwise, in the process of administrative litigation, if the parties submit a request to the court to review the legality of the document, the administrative agency will face the legal risk of losing the lawsuit.
2021-11-09
09
2021-11
The acts of administrative organs on internal matters made by organizations and individuals with administrative affiliation, or internal procedures in the process of initiating administrative acts or administrative acts, although aimed at external matters, are not administrative acts and are not within the scope of administrative litigation. The only exception is that the above-mentioned internal acts can directly affect citizens, legal persons or other organizations and have an impact on their rights and obligations without the need for administrative acts under certain specific conditions. At this time, the substantive effect of internal behavior is equivalent to administrative behavior. Starting from the legislative purpose of the "the People's Republic of China Administrative Procedure Law" to protect the legitimate rights and interests of citizens, legal persons or other organizations, it should be included in the scope of administrative litigation. Analysis on the Legal Attribute and Effect of (I) Meeting Minutes As a common official document of government agencies, in administrative cases, whether the minutes of government meetings belong to specific administrative acts, whether administrative proceedings can be brought against them, how effective the minutes of meetings can be in specific administration, and whether they can be cited as normative documents are puzzled by a considerable number of administrative staff. In practice, some administrative organs fail to accurately distinguish the differences and differences between the meeting minutes and other administrative documents, and directly apply the meeting minutes to guide and manage relevant administrative affairs, which brings many troubles to judicial practice and the relief of the rights and interests of administrative counterparts, and also violates the principle of administration according to law. Therefore, it is necessary to clarify the legal nature and scope of the minutes of the meeting, and standardize the procedures and processes applicable to the transformation of the matters recorded in the minutes of the meeting. 1. Meaning and characteristics of meeting minutes Item 15 of Article 8 of China's "Regulations on the Handling of Official Documents of Party and Government Organs" (Zhongban Fa [2012] No. 14) stipulates: "The minutes are applicable to recording the main information and agreed matters of the meeting." The minutes of the government meeting are processed and compiled according to the minutes of the government meeting, the meeting documents and other relevant materials. They are documentary documents reflecting the basic situation and spirit of the meeting. They are mainly used to record and convey the meeting situation and agreed matters. 2. Analysis of the legal nature of government meeting minutes (1) The difference between government meeting minutes and abstract administrative actions Abstract administrative act refers to a universally binding administrative act made unilaterally by an administrative subject against an unspecified administrative counterpart. Abstract administrative acts have four forms: administrative regulations, administrative rules, administrative measures, decisions and orders. The minutes of the meeting are abstract, which means that the minutes of the meeting are abstract and concise expressive records of the matters and contents of the meeting, and are not all records that do not fall word by word. The content of a matter recorded in the minutes of the meeting is not the detailed process and final conclusion to solve the specific problem, but only the principles and methods to deal with a specific problem. In terms of the content of the minutes of the meeting, the matters recorded may be subject to certain constraints on unspecified administrative counterparts, or may be subject to certain constraints on specific administrative counterparts, but the minutes of the meeting are not consistent with the four forms of abstract administrative acts in terms of normative, procedural and statutory aspects. Even if some of the matters recorded involve some of the rights and interests of unspecified administrative counterparts, they do not have the characteristics of abstract administrative acts. The relevant departments need to transform the matters in the minutes of the meeting into administrative acts with legal basis in accordance with the law., Can produce legal effect. (2) The minutes of government meetings are not specific administrative acts Specific administrative act refers to the act of taking specific measures against a specific person or thing in the process of administrative management. The content and result of the act will affect the rights and interests of a certain person or organization. Its most prominent feature is the specificity and concretization of the object of the act, which belongs to an individual or organization, or a specific social matter. From the point of view of the content recorded in the minutes of the meeting and its own characteristics, the minutes of the meeting do not have the characteristics of specific administrative acts. The minutes of the meeting are formed by the meeting and are not specific administrative acts. In the process of forming the minutes of the meeting, some specific administrative matters are often discussed, and guiding and principled solutions and methods are produced, which have an impact on the rights and interests of the administrative counterpart on the surface, but in fact it still needs to be transformed by the relevant administrative organs in order to have external effect. (3) The minutes of government meetings are applicable to the internal affairs of administrative organs. In terms of the process of formation, content and scope of application of the minutes of the meeting, the minutes of the meeting are internal, that is, they are only applicable within the administrative organ. As a kind of official document, the minutes of the meeting are applicable to recording the meeting situation and agreed matters, and their internal nature should be clearly defined, that is, they should only be effective within the government organs and should not be effective directly to the outside. If the relevant matters need to be effective to the outside, they should be transformed into other corresponding types of official documents. The contents and matters recorded in the minutes of government meetings are abstract contents condensed and summarized, and their impact on administrative affairs and the rights and interests of administrative counterparts should only be principled, instructive and abstract, and cannot be used as the basis for specific administrative acts or directly applied to administrative counterparts. Therefore, the minutes of the meeting only have legal effect internally, that is, only have corresponding binding force within the administrative organ. (4) The minutes of government meetings need to be transformed for external effectiveness. The minutes of the government meeting do not have direct legal effect to the outside world, and the minutes of the meeting need to be transformed into other official documents. The matters recorded in the minutes of the meeting shall have external effect and may be announced in the form of approval, issuance or forwarding of notices. According to the provisions of the regulations, the issuance of "notices" needs to be sealed and has legal effect. For example, the notice (document number) on the issuance of the * * * meeting minutes is to transform the meeting minutes so that the contents and matters recorded in the meeting minutes have external legal effect. (5) Lack of legal basis for the direct external application of the minutes of government meetings The law does not specify whether the minutes of the meeting can be directly applied. In the absence of legal basis and clear positioning, if it is used directly, it will lead to the situation that illegal application is difficult to protect rights. 3. Exceptions to the litigation nature of the minutes of government meetings On the question of whether the minutes of government meetings are actionable and under what conditions they are met, a large number of judicial decisions of the Supreme People's Court uphold the agreed judicial view that the minutes of government meetings are still actionable if certain conditions are met. Two conditions should be met for justiciability: first, the content of the minutes of the meeting directly relates to the specific rights and obligations of citizens, legal persons or other organizations. In the case of Wang mou et al. v. Shenyang municipal people's government of Liaoning province for the retrial of the performance of the meeting minutes ((2018) supreme law application no 1589), the supreme people's court held that: On the issue of the justiciability of the minutes of the meeting. The first paragraph of Article 2 of the "the People's Republic of China Administrative Litigation Law" stipulates that citizens, legal persons or other organizations that believe that the administrative actions of administrative agencies and their staff infringe upon their lawful rights and interests have the right to file a lawsuit in a people's court in accordance with this law. Item 12 of the first paragraph of Article 12 stipulates that if a citizen, legal person or other organization considers that an administrative organ has infringed upon other legitimate rights and interests such as personal rights and property rights, the people's court shall accept it. It can be seen that the criterion for judging whether an administrative act is actionable is whether the administrative act infringes on the legitimate rights and interests of the relative, that is, the act that has an actual impact on the rights and obligations of the relative belongs to the scope of the case of administrative litigation and is actionable. In this case, the minutes of the meeting were made to resolve the housing shading dispute between Wang and others and the Shenyang Military Region Housing Management Office. They involved the repurchase of houses by shaded households and the approval of new housing planning. The content was clear and specific. After the minutes of the meeting were made, Wang and others stopped petitioning and obstructing the construction of the troops. The units involved in the minutes of the meeting have also carried out part of the work in accordance with the contents of the minutes of the meeting. Therefore, the minutes of the meeting have had a direct impact on the rights and obligations of Wang and others, and are actionable. The Shenyang Municipal Government proposed that the minutes of the meeting were not actionable, and the case did not fall within the scope of administrative litigation. The Supreme People's Court did not support it. In the retrial case of Jiaozuo textile co., ltd. suing Jiaozuo municipal people's government for the minutes of the meeting ((2019) supreme law application no 458), the supreme people's court held that: The minutes of meetings, as internal documents used by administrative organs to record and convey relevant meetings and agreed matters, are internal administrative acts and usually have no legal effect on the outside world, nor do they have a direct impact on the rights and obligations of administrative counterparts. The legal effect of the minutes of the meeting should meet two conditions: first, the contents of the minutes of the meeting directly involve the specific rights and obligations of citizens, legal persons or other organizations. Externalization methods include the administrative organ serving or informing the parties of the minutes of the meeting as an administrative decision, or the administrative organ executing the minutes of the meeting directly, and the parties knowing the contents of the minutes of the meeting in the process of execution, otherwise the minutes of the meeting will not have an externalization effect. The way to externalize the minutes of the meeting should be limited to legitimate channels. If the contents of the minutes of the meeting are known through abnormal channels such as private notification, it does not belong to the official release through legal channels. The minutes of the meeting do not have legal effect to the outside world, nor do they have enforcement power, and do not belong to the scope of administrative litigation. If the minutes of the meeting are transformed into other administrative acts with legal effect, the parties may sue for other administrative acts with legal effect, and the minutes of the meeting do not directly affect the rights and obligations of the parties. Whether the minutes of the [2013] No. 2 meeting, which is sued in this case, can be sued depends on whether it has been externalized and has legal effect to the outside world. Jiaozuo Municipal People's Government said that the minutes of the meeting involved in the case had been delivered to a textile company together with the reply of Jiao Zhengtu [2014] No. 35 on May 30, 2014, but did not provide evidence that the minutes of the meeting involved in the case had been delivered. A textile company is inconsistent and contradictory about the time and way it got the minutes of the meeting involved in the case. Therefore, in the absence of evidence to prove that the minutes of the meeting have been externalized, the original ruling rejected a textile company's prosecution is not improper. Huiyin Company's request for the implementation of land issues and other rights not resolved in the original relocation process may be claimed separately. (II) Enlightenment to the Work of Government Departments Since the minutes of government meetings, as internal documents used by administrative organs to record and convey relevant meetings and agreed matters, are internal administrative acts, they usually have no legal effect on the outside world, nor do they have a direct impact on the rights and obligations of administrative counterparts. However, through a large number of judicial cases of the Supreme People's Court, it can be seen that the minutes of government meetings are still actionable when certain conditions are met. Therefore, official documents that really need to be made in the form of meeting minutes in the work of government departments should be strictly examined and checked to avoid the contents of meeting minutes directly involving the specific rights and obligations of citizens, legal persons or other organizations, and infringing upon other personal rights, property rights and other legitimate rights and interests. If relevant matters need to be externally effective, they should be converted into other corresponding types of official documents.
2021-11-09
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
