Viewpoint | Knowledge Management-Avoid Loss of Novelty Disclosure

Foreword The technology or design achievement before the patent application right is essentially a commercial secret, so it should meet the confidentiality requirements, that is, the relevant subjects should take appropriate confidentiality measures for the corresponding commercial secrets, and with the help of these confidentiality measures, the willingness of the relevant subjects to keep secrets, the nature of the carrier of the commercial secrets, the recognizability of the confidentiality measures and the matching degree of the confidentiality measures with the commercial secrets can be identified relatively accurately, and how easy it is for others to obtain trade secrets through proper means. The appropriateness of the secrecy measures is important both for the trade secret itself and for the patent application/patent rights that may be formed in the future. Origin of 1. In the past less than a year, many of the cases that I have contacted or directly participated in have involved patent infringement/confirmation disputes that were disclosed before the application date. Therefore, I think it is necessary to discuss the behavior disclosed before the patent application date on patent infringement. Or the impact of confirmation. The following is a description of the basic situation of several cases. Case one: Enterprise A has developed a product with certain innovative value, which is put on the market after small batch production. While the product sales have a certain effect, competing products that are basically consistent with the product innovation point also appear on the market. At this time, Enterprise A decides to apply for a patent for the corresponding invention to protect its technological achievements. Case two: A certain place formed a production base for a product with strong demand in the destination country, and gathered many enterprises. Among them, enterprise B applied for a product with a certain shape and pattern, as well as the mold for producing the product, and obtained a design patent, and then filed a customs record on the design patent, and filed an application for protection measures with the customs in due course, and seized a batch of products that a company was going to send to the destination country. Case three: Enterprise C tried to initiate infringement charges against Enterprise D. Enterprise D responded that there was sufficient evidence to prove that a patent used by Enterprise C as the basis of rights was not novel due to the disclosure of the relevant product before the application date. Enterprise D attached complete evidence that Enterprise C had been put on sale on a certain platform on a certain day of a certain year before the application date of the patent in question. Case four: Enterprise E holds a patent for a creative product, and uses this patent as the basis of rights to sue the enterprise for infringement. The enterprise has initiated the invalidation procedure for the patent. The core evidence is the publicity photo of the corresponding creative product published by enterprise E on its WeChat public number. Case five: Enterprise Geng participated in an exhibition to publicize its products. The technical personnel applied by the enterprise saw that the product was innovative and inquired about the relevant products. After confirming that the relevant technology and design contained in the product had not applied for a patent, they notarized and preserved the public behavior of the product at the exhibition and put it on the market after imitation. Although the enterprise applied for and obtained the patent right for the relevant products afterwards, the relevant patents were all invalidated during the rights protection stage because they were disclosed before the application date. The above five cases all involve the failure of the enterprise holding the technology or design to improperly disclose the relevant technology or design before the formation of the patent application right, resulting in the relevant technology or design constituting the existing technology or design, and the problems involved in the above five cases will be explained one by one below. 2. publicity without loss of novelty (I) legal basis Article 24 (A24) of the Patent Law (2022) An invention-creation for which a patent is applied for shall not lose its novelty if, within six months before the filing date, one of the following circumstances occurs: (I) made public for the first time for the purpose of public interest in the event of a state of emergency or extraordinary circumstances; (II) exhibited for the first time at an international exhibition sponsored or recognized by the Chinese Government; (III) first published at a prescribed academic or technical conference; (IV) others to divulge its contents without the consent of the applicant. Description of (II) cases 1. In case 5, the enterprise g participated in an exhibition to publicize its products. during the confirmation stage, it claimed that the nature of the exhibition was an exhibition sponsored by the Chinese government. however, the state intellectual property office finally supported the applicant, that is, the enterprise's application, and declared all the patents involved invalid. There are two reasons. First, the enterprise G should submit the relevant patent application within the grace period (this is in line with the regulations), and at the same time, it should submit a declaration of novelty grace period within two months from the application date of the patent application in question. Obviously, it has lost the relevant rights to make the relevant declaration at the invalid stage. Second, the level of the exhibition is not enough. The exhibition should be an international exhibition, and it should be sponsored or recognized by the Chinese government. The most widely recognized example in the early years is that the level of the Canton Fair is not enough. Although it is already an international exhibition, it is not sponsored by the Chinese government, nor is it recognized by the Chinese government. 2. At present, the most widely used item is item (IV), paragraph 1, Article 20 of the Patent Law (2022), that is, others disclose its contents without the consent of the applicant. Specifically, it includes: others disclosing the contents of the applicant's invention and creation without complying with the express or implied obligation of confidentiality; Others use threats, fraud, theft, espionage and other improper means to learn the contents of the invention and creation from the inventor or any other person who has been told by him to learn the contents of the invention and creation and then disclose it. The aforementioned case 4 involves this situation. The reason for the enterprise E's defense is that the disclosure on the WeChat public number is the personal behavior of one of its employees, and the personal behavior violates the confidentiality agreement between it and the employee. Then, the relevant confidentiality agreement is only a general agreement that does not have a clear direction, and only reflects the enterprise's willingness to keep secrets. For the carrier of the relevant business secrets, there is neither a confidentiality identification nor a restriction on the scope of personnel contacted by the confidential carrier. In particular, the publication behavior on the WeChat public number of the enterprise should belong to the enterprise behavior, there is a stronger reason to believe that the publication of articles on the WeChat public number operated by enterprises has undergone strict examination. 3. The other three cases do not involve the disclosure without loss of novelty as stipulated in the first paragraph of Article 24 of the Patent Law (2022), but they all belong to the improper management of trade secrets by the "right holder". When the management falls into a state of disorder, omissions will be unavoidable. What can get inspiration from it is the opposite party in case 3 and case 5. Both enterprises have relatively complete intellectual property management systems, so that even ordinary employees can identify the information that is beneficial or harmful to the company, and fix the relevant behaviors in a standardized way, leaving credible evidence for future behaviors. 4. As legal persons, we all know that the evidence used to prove the existence of relevant facts cannot exist forever, and the same is true for public acts before the application date. The shape and pattern of the product in the patent applied for by enterprise B in case 2 have actually been used in such products for many years before the relevant patent application date, but there is no credible evidence to prove it. However, the problem is usually two sides of the same body. For those who apply for patents on related technologies or designs late due to weak awareness of intellectual property protection, it does not necessarily lead to the loss of rights. It is that over time, the traces of related behaviors will gradually The decrease, or even disappear completely. Relatively speaking, enterprises with strong awareness of intellectual property protection will, like the opposite parties in cases 3 and 5, consolidate their certificates in advance, so that the market control is always on their own side, thus being in an advantageous position in the market competition. Relationship between 3. Prior Art/Design Defense and Disclosure Without Loss of Novelty Article 62 (A62) of the Patent Law (2020) stipulates that in a patent infringement dispute, if the alleged infringer has evidence to prove that the technology or design implemented by him belongs to the existing technology or existing design, it does not constitute an infringement of the patent right. Article 22, paragraph 5, of the Patent Law (2020) provides that the prior art referred to in this Law means the technology known to the public at home and abroad before the filing date. Article 23, paragraph 4, of the Patent Law (2020) stipulates that the existing design referred to in this Law refers to the design known to the public at home and abroad before the date of filing. Then will there be any conflict between the provisions of A62 and A24. After all, the disclosure without loss of novelty stipulated in A24 involves the validity of rights, but in fact the relevant technology or design already constitutes the existing technology or existing design, but it may not be considered as not losing novelty; However, the existing technology and existing design defenses stipulated in A64 are infringement defenses. Obviously not, the disclosure without loss of novelty stipulated in A24 is obviously able to protect the technical scheme or design required by the relevant patent. If the existing technology or existing design stipulated in A62 is understood to cover the content that A62 nominally already constitutes the existing technology or existing design, then it is empty talk or meaningless provision to be protected. 4. typical cases 1. [Case No.] (2020) Supreme Law Zhihang Final No. 588 referee gist] The core of the provisions of the patent law on the "disclosure of the contents of others without the consent of the applicant" in the grace period of novelty lies in the disclosure of the contents of the invention against the wishes of the applicant. When making specific judgments, the applicant's subjective meaning and objective behavior can be comprehensively considered, that is, whether the applicant is subjectively willing to disclose or whether the public behavior is allowed to occur, and objectively whether certain confidentiality measures have been taken to make his invention and creation difficult to be known by the public. If another person violates the express obligation of confidentiality or violates the implied obligation of confidentiality based on social concepts and business habits, and discloses the content of inventions and creations without authorization, it constitutes a violation of the applicant's wishes and belongs to "others disclosing the content without the applicant's consent". referee excerpt] According to the provisions of Article 24, Item 3 of the Patent Law, an invention-creation for which a patent is applied for shall not lose its novelty if it is disclosed by others without the consent of the applicant within six months before the date of application. The core of disclosure caused by disclosure of the contents by others without the consent of the applicant lies in the disclosure of the contents of the invention and creation by others against the wishes of the applicant, and its specific manifestations include but are not limited to: the disclosure of the contents of the invention and creation by others who fail to abide by the express obligation of confidentiality or the implied obligation of confidentiality according to social concepts and business habits; disclosure by others of the contents of the invention from the inventor or applicant by illegal means such as threats, fraud or espionage, etc. When judging whether the disclosure is against the wishes of the applicant, the subjective expression of the applicant's intention and the objective behavior can be considered comprehensively, that is, whether the applicant is subjectively willing to disclose the contents of his invention and creation, or allow the public behavior to occur; objectively, whether certain confidentiality measures are taken to ensure that his invention and creation are not easily known by the public. The circumstances of the grace period for novelty stipulated in Article 24 of the Patent Law are aimed at the fact that the disclosed content belongs to the "invention-creation for patent application" itself, or the difference between the disclosed content and the "invention-creation for patent application" cannot at least exceed the scope of affecting novelty. This case involves a graphical user interface design patent. According to Article 2 of the Patent Law, a design patent is a combination of a product and a design. The product name of this patent is "computer with graphical user interface", that is, the product is a computer, and the graphical user interface shown in the design diagram and the change state diagram is displayed. Patentees Qihoo and Qizhi claim that the prior disclosure of the novelty grace period, although the graphical user interface presented in the "360 Security Guard 10.0Beta" software, did not appear on the computer. However, since the software is usually run on a computer, it must be carried by hardware such as a computer. Considering the particularity of the appearance design of the graphical user interface, the graphical user interface presented in the "360 Security Guard 10.0Beta" software can be regarded as The content disclosed first when judging whether it meets the novelty grace period. In this case, the existing evidence 1 can prove that the poster published the software with the graphical user interface design of this patent on the card meal forum before the patent application date, but its installation interface prompted "for trial only" and required to enter the experience code, and only some users who can obtain the experience qualification can try the software. Subsequently, the follower issues a 7-Zip software download prompt so that the public can download and use the software through the 7-Zip software. It should be pointed out that Qihu and Qizhi recognized that the software link on the Kaifan Forum on August 19, 2014 was an internal test, but advocated that the poster disclosed the software content without consent. In addition, according to the content of evidence 2, the user who obtained the priority experience qualification also further disclosed the software content. In this regard, the Supreme People's Court analysis is as follows: First, as far as the poster is concerned, first of all, it makes it clear that the software is "only for users who have obtained the priority experience qualification" and requires the input of the experience code. From the poster's meaning and the experience code restriction measures adopted, it can be seen that he is subjectively unwilling to disclose the content of the software, and there is no evidence to prove that he has the willingness to allow the software to be disclosed. Objectively, it has taken confidentiality measures requiring the input of experience codes to ensure that the content of the software is not easily known by the public. Therefore, the poster has fulfilled the obligation of non-disclosure in accordance with the requirements of the patent applicant and has not disclosed the software, which does not belong to "others" as stipulated in Item 3 of Article 24 of the Patent Law ". Secondly, through the above-mentioned behavior of the poster, according to the social concept and the business practice of the software internal test, the poster who makes the 7-Zip software download prompt should know or should know that the poster or the software right holder has the intention and behavior of confidentiality, and therefore has the implied obligation of confidentiality. However, the follower violated the implied confidentiality obligation based on social concepts and business practices, disclosed the abnormal opening method of the software and presented the graphical user interface in the software to the public, which violated the wishes of the patent applicant. It should belong to the situation that "others disclose its content without the consent of the applicant" as stipulated in Item 3 of Article 24 of the Patent Law. Second, as far as users who can obtain the priority experience qualification are concerned, since the experience center page requires the user who receives the experience code to have a confidentiality commitment, the experience user should abide by its confidentiality agreement. The real intention of the patent applicant is that the downloaded software is limited to trial and experience for qualified users, and the experience code is generally a restriction on the eligibility of the trial. Therefore, although the experience code is not a password, its function is basically the same as that of a password, and both limit the scope of people who come into contact with the software. Therefore, for users who can obtain the priority experience qualification, they certainly have the express obligation of confidentiality. In violation of the agreed obligation of confidentiality, the disclosure of the applicant's invention and creation belongs to the circumstances stipulated in Item 3 of Article 24 of the Patent Law. To sum up, Evidence 1 belongs to the existing design disclosed before the application date of this patent because the graphical user interface design presented by the downloaded software is in a state that can be known to the public due to the prompt behavior of the poster, and its time is earlier than the application time of this patent. However, because the court believes that the software disclosure behavior mentioned in Evidence 1 belongs to the situation of no loss of novelty grace period stipulated in Item 3 of Article 24 of the Patent Law, therefore, evidence 1 cannot be used as a comparison document of the previous design. The comparative design presented in Evidence 1 is the basis for the decision of the accused to find that the patent does not comply with Article 23, paragraph 2, of the Patent Law, and since the basis cannot be established, the decision of the accused shall be revoked. 2. [Case No.]]

2023-04-10

Viewpoint... The divorce agreement stipulates that the ownership of the house in the name of the husband and wife can be a party to fight the real estate registration effect -- take a case of execution objection as an example.

Introduction The enforcement of housing is based on the principle of real estate registration, with the exception of the housing ownership agreement. Although the agreement in the divorce agreement on the ownership of the house registered in the name of the husband and wife is binding on the two parties to the divorce, but because our country adopts the real estate ownership to register as the effective element, the application of the principle of property law, the husband and wife's agreement on the ownership of the house does not directly have the effect of the change of property rights. Therefore, if the divorce agreement attributes the house under the name of both husband and wife to one of the husband and wife but has not changed the ownership registration, the party who has not obtained the ownership of the house from the perspective of "intended debt" only relies on the agreement of the divorce agreement to claim a breakthrough in the real estate registration effect in the execution case where the creditor claims from it, which usually cannot be established and cannot prevent enforcement. On the other hand, in the execution case where the creditor claims the creditor's right to the owner of the house under the name of both husband and wife, although the ownership of the house is still registered as owned by both husband and wife, if the divorce agreement stipulates that the house belongs to the executed party, and the intention of both parties is true, the division of the ownership of the house is clear, and the transfer registration cannot be handled for their own reasons, the execution objection raised by the party who has not been owned by the divorce agreement can be excluded. Basic case Zhao and Liu were once husband and wife. Both parties registered for divorce in 2007 and signed a divorce agreement (which has been filed with the civil affairs department), agreeing that the house involved in the case purchased by both parties shall be owned by the man Zhao, and the mortgage of the house shall be later repaid by Zhao alone. Zhao paid the woman Liu 100000 yuan in one lump sum. Both parties have no other disputes. After the divorce, the woman Liu moved out of the house and returned to live in her hometown in other provinces. The man Zhao did not pay 100000 yuan. In 2022, Li mou applied for the execution of the property under Zhao mou's name due to the effective judgment. during the execution, Liu mou (Zhao mou's ex-wife), an outsider, filed an execution objection with the court, claiming that Zhao mou did not pay 100000 yuan to him and provided the property ownership certificate involved in the case (the registered owners are still Zhao mou and Liu mou) to prove that the property is still the common property of Liu mou and Zhao mou, the court was requested to retain and return the house auction money corresponding to Liu's share, and then the enforcement court ruled that the outsider Liu's execution objection was established. The author filed a lawsuit against Li mou on behalf of Li mou. the court of first instance held that the 100000 yuan agreed in the divorce agreement should be regarded as Zhao mou's discount compensation for Liu mou's share of the house. because the agreement on discount compensation for the share of the house could not be fulfilled, Liu mou still enjoys the share of the house involved and has the right to the house involved. Therefore, the court of first instance rejected Li's claim for execution objection and supported the execution objection ruling. Li refused to accept the first instance judgment, according to the law to appeal. The court of second instance held that the divorce agreement had clearly recorded that the real estate and property involved in the case were given to Zhao, Zhao paid Liu 100000 yuan in one lump sum, and Zhao was responsible for the mortgage of the real estate involved in the case. It was also impossible to change the registration of the property right of the house because the mortgage was not clear. It can be seen that Liu has given up his share of the real estate involved in the case, and Zhao has obtained full ownership of it. After nearly 14 years, Liu has claimed a share of the real estate involved in the case. There is no factual and legal basis. Liu has no legal rights and interests in the real estate involved, so he does not enjoy the corresponding share of the auction money of the real estate involved. At this point, Li's appeal request was established and supported, the first-instance judgment was revoked, and the house auction money involved in the case continued to be fully executed, which fully safeguarded the legitimate rights and interests of the parties. Key points analysis The agreement on the ownership of the house in the divorce agreement is intended to determine the debt, and China's real estate to register as an effective element, "debt" binding force can break through the effect of property rights, whether it can block the implementation, from the point of view of this case, must be based on objective facts of rigorous judgment. 1. The meaning of the house ownership agreement is true, the division is clear, and the civil affairs department records, the target property is owned by one party alone. 2. The reason why the house ownership has not been registered for change is caused by other objective factors besides the parties involved in the case. If the change cannot be made due to the unsettled mortgage, the Chinese Communist Party has established two mortgage rights in this case. The first time was established during the marriage between Zhao and Liu, and the second time was established 8 days after Zhao and Liu registered for divorce, evidence of the fact that Liu knew that the establishment of the mortgage could not handle the registration of the change of property rights of the house. 3. The party who has not obtained the property (claiming the exclusion of execution) and the party who has obtained the property (being executed) have no contact for a long time and have not claimed any rights for a long time, and the relationship between the rights and obligations of the ownership of the house has been stable for many years. 4. If there is a mortgage, whether the loan is repaid independently by the executed party. In this case, after Zhao and Liu registered for divorce, the loan of the real estate involved in the case has been repaid by Zhao independently. Legal basis The first paragraph of Article 209 of the the People's Republic of China Civil Code stipulates that the establishment, alteration, transfer and elimination of real property rights shall be effective after registration in accordance with the law; without registration, it shall not be effective, unless otherwise provided by law. At the same time, article 1065 stipulates that both men and women may agree that the property acquired during the marriage and the pre-marital property shall be owned by each other, jointly owned or partly owned by each other or partly jointly owned. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 1062 and 1063 of this Law shall apply. typical meaning The entry into force of real estate registration is not effective without registration, which is a clear stipulation of the Civil Code. Due to the absolute and dominant characteristics of real right, the entry into force and confrontation effect are obviously different from creditor's rights. Therefore, disputes involve real right. The entry into force requirement of registration is "Shangfang Baojian", which is conducive to judging the ownership of rights in mixed disputes between property and debt. According to the recent cases searched by the author, most courts have rigid understanding of real right, however, ignoring the prior expression of objective and true intention, in this case, even ignoring the examination of objective facts that cannot be changed, thus causing the judgment of the first instance of the execution objection and the execution objection to ignore important facts and be unfair. It is true that from the point of view of the person subject to execution, the identity of the co-owner of the subject matter involved in the case is used to block the execution, or it is the execution defense technology of the person subject to execution. However, as far as the agency work of the person applying for execution is concerned, the division of the scope of creditor's rights and the fixation of the payment of evidence should be further carried out, which undoubtedly increases the obligation of acting the person applying for execution or the plaintiff.

2023-04-06

Viewpoint | An analysis of the exit dilemma of the legal representative of a limited company

[Brief]] Although the legal person has an independent subject status, as an abstract organization, the will of the legal person must be expressed externally by a specific natural person. In the design of China's legal person system, the legal representative naturally enjoys the power to carry out civil legal acts in the name of a legal person. Therefore, the "Civil Code", "Company Law", "Regulations on the Registration of Market Entities" and other laws and administrative regulations regulate the legal representative in many aspects. Unfortunately, there are still many difficulties in the withdrawal of the legal representative. Limited company is the most common form of for-profit legal person, this paper takes the legal representative of the limited company as the perspective of the withdrawal of a brief analysis, for the corresponding problem of the practice to provide a little idea. 1. the concept of legal representative The Civil Code stipulates that, in accordance with the law or the articles of association of a legal person, the person in charge of civil activities on behalf of the legal person shall be the legal representative of the legal person. Where a legal representative engages in civil activities in the name of a legal person, the legal consequences thereof shall be borne by the legal person. Legal requirements for the legal representative of a 2. limited company The Civil Code stipulates that if the executive body is the board of directors or the executive director, the chairman, executive director or manager shall serve as the legal representative in accordance with the provisions of the articles of association of the legal person; if there is no board of directors or executive director, the main person in charge as stipulated in the articles of association of the legal person shall be its executive body and legal representative. The Company Law stipulates that the legal representative of the company shall be the chairman, executive director or manager in accordance with the provisions of the articles of association of the company, and shall be registered in accordance with the law. If the legal representative of the company changes, the change registration shall be carried out. From the aforementioned provisions, it is not difficult to see that the legal representative of a limited company belongs to the matters determined by the articles of association and is the registration of the legal person of the company. In terms of scope, the legal representative shall have the position of chairman, executive director or manager. Chairman, Executive Director, Manager and Qualification of 3. Limited Prohibited 1. Chairman, Executive Director The Company Law stipulates that a limited liability company shall have a board of directors with three to 13 members; the board of directors shall have one chairman and may have a vice-chairman. The method for the election of the chairman and vice-chairman shall be stipulated in the articles of association of the company, and the chairman and vice-chairman of a wholly state-owned company shall be designated by the state-owned assets supervision and administration institution from among the members of the board of directors; a limited liability company with a small number of shareholders or a small scale may have an executive director and no board of directors. The statutory powers of the chairman and executive director include presiding over the meeting of the shareholders, convening and presiding over the meeting of the board of directors, etc. 2. Manager The Company Law provides that a limited liability company may have a manager, who shall be appointed or dismissed by the Board of Directors. The executive director may concurrently serve as the manager of the company. Among them, a wholly state-owned company has a manager, who is appointed or dismissed by the board of directors. With the consent of the state-owned assets supervision and administration institution, members of the board of directors may concurrently serve as managers. 3. Qualification prohibition According to the Company Law, senior management refers to the manager, deputy manager, financial officer, secretary of the board of directors of a listed company and other personnel specified in the articles of association of the company. Therefore, the company law fully restricts the qualifications and obligations of directors, supervisors and senior managers of a limited company, that is, the legal representative of a limited company. The company law's prohibition on the qualifications of company directors, supervisors, and senior managers specifically includes: no capacity for civil conduct or limited capacity for civil conduct; for corruption, bribery, embezzlement of property, misappropriation of property, or disruption of the order of the socialist market economy, they are sentenced to criminal punishment, and the execution period is not more than five years, or they are deprived of political rights due to crimes, and the execution period is not more than five years; if a director, factory director or manager of a company or enterprise that has been liquidated in bankruptcy is personally responsible for the bankruptcy of the company or enterprise, and it has not been more than three years since the date of the completion of the bankruptcy liquidation of the company or enterprise; if he is the legal representative of a company or enterprise whose business license has been revoked or ordered to close down due to violation of the law, it has not been more than three years since the date of the revocation of the business license of the company or enterprise; the large amount of debt incurred by the individual has not been paid off when it is due. The effective requirements of the change of the legal representative of the 4.. The legal requirements and qualification prohibitions of the legal representative have been discussed in detail in the previous article. We inevitably have doubts. If the legal representative is prohibited from qualification or loses the status of chairman, executive director or manager during his duties, does the legal representative Of course to withdraw? In order to solve the related problems, we need to clarify the effective elements of the change of legal representative, this view exists in the registration of the effectiveness of the right to say and registration against the effectiveness of two views, limited to space, this article mainly introduces the mainstream point of view. 1. Internal effect of change of legal representative The Supreme People's Court held that the determination of the legal representative of the company is the result of the company's expression of the common will of all shareholders through the articles of association in the case of the dispute over liability for damage to the company's interests [(2021) Supreme Law No. 2]. The Interpretation of the Civil Procedure Law stipulates that the legal representative of a legal person shall be registered in accordance with the law, unless otherwise provided by law, which does not mean that the legal representative of the company is granted by the company registration authority. The registration of the legal representative of the company is only the confirmation of the intention of the legal representative of all shareholders of the company by the administrative organ. The registration of the legal representative of the company in accordance with the law has the effect of publicity, but does not have the effect of determining the true intention of the company on the issue of the legal representative. Similarly, the Supreme People's Court held in Beihai Rongqin Breeding Co., Ltd. and Beihai Ye Kai Breeding Co., Ltd. in the retrial review and trial supervision of enterprise loan disputes [(2021) Supreme Famin Shen No. 1232] that although the change registration of the company's legal representative has the effect of publicity, failure to register is not an effective requirement for the change of the legal representative. Therefore, the change of the company's legal representative is the result of the company expressing the common will of all shareholders through the articles of association, which is applicable to the validity of civil legal acts. 2. The external effect of the change of legal representative. The Civil Code stipulates that if the actual situation of a legal person is inconsistent with the registered matters, it shall not oppose a bona fide counterpart. The Supreme People's Court Bulletin Case Beijing Gongda Real Estate Co., Ltd. and Beijing Xianghe Three Gorges Real Estate Development Company Real Estate Development Company Real Estate Development Contract Dispute Retrial Case [(2009) Minti Zi No. 76] held that the company's legal representative represented the company in civil affairs in accordance with the law. activity. If the legal representative is changed, the change registration shall be made in the administrative department for industry and commerce. The legal representative of the company has been decided by the superior unit to stop his duties when signing the contract, but has not gone through the change registration. If the company claims that the contract is invalid, the people's court will not support it. The Supreme People's Court Bulletin Case China Environmental Protection Technology Group Co., Ltd. and Thumb Environmental Protection Technology Group (Fujian) Co., Ltd. Shareholder Investment Dispute Appeal Case [(2014) Min Si Zhong Zi No. 20] held that the law stipulates that the change of legal representative The significance of registering is to publicize the basic status of the company's will representation to the public. The legal representative of the industrial and commercial registration has the effect of publicity to the outside world. If an external dispute arises from the company's representation by a third party other than the company, the industrial and commercial registration shall prevail. As for the internal disputes between the company and the shareholders arising from the appointment and removal of the legal representative, the effective resolution of the shareholders' meeting on the appointment and removal shall prevail, and the legal effect of the change of the legal representative shall be produced within the company. Therefore, as the sole shareholder of Thumb Company, Environmental Technology Company, its resolution to appoint the legal representative of Thumb Company is binding on Thumb Company. Therefore, the legal representative, as a registered item of a legal person, has the effect of external registration confrontation. During the term of office, the legal representative is prohibited from qualification or loses the position of chairman, executive director or manager, and the legal representative does not withdraw of course. Complete Exit Process and Dilemma of 5. Legal Representative Taking the articles of association as an example, the manager of a limited company shall be the legal representative. The exit process of the change of the legal representative is that the company shall register the change according to law after changing the manager. The change of the company manager is in principle the authority of the company's board of directors, and the company law stipulates that the board of directors exercises the authority to decide on the appointment or dismissal of the company manager and his remuneration matters. From this, we can see that the change of the company manager as the legal representative is an important prerequisite for the legal entity of the company to exercise its powers in accordance with the law. Similarly, taking the articles of association as an example of the chairman and executive director of a limited company, the change of the legal representative in principle also requires the standardized exercise of the legal person organ of the company as a prerequisite, but at this time, it is necessary to take into account many factors such as the division of authority of the shareholders' meeting and the board of directors, as well as whether the proposed chairman has the status of a director. Obviously, the legal representative's exit dilemma mainly comes from the company's legal person organ's irregular exercise of power, such as in the company deadlock, the company is difficult to form an effective organ resolution, the company has neither the will to change, nor the ability to change. 6. Solution Path In order to solve this dilemma, this paper discusses the following aspects. 1. Legal relationship between the legal representative and the company At present, there are no clear legal provisions on the relationship between the legal representative and the company, and there are many different understandings in practice, among which the mainstream view is that the legal representative and the company belong to the principal relationship. The Supreme People's Court Wei Tongbing, Xinjiang Baota Real Estate Development Co., Ltd. and others requested to change the company registration dispute civil retrial case [(2022) Supreme Famin No. 94] held that the legal representative is the person in charge of the company engaged in civil activities on behalf of the company, and the registration of the legal representative has the effect of publicity in accordance with the law. As far as the company is concerned, the legal relationship between the company and the legal representative is entrusted, and the representation of the legal representative is based on the authorization of the company, which is obtained from the time of appointment to the time of removal of the appointment. After the authority of the company removes the legal representative from his post in accordance with the provisions of the articles of association, the representation of the legal representative shall be terminated. Where the shareholders' meeting of a limited liability company dismisses the legal representative of the company in accordance with the provisions of the articles of association, the executive organ of the company shall implement the resolution of the company and handle the industrial and commercial change registration of the legal representative of the company in accordance with the law. 2. Whether the legal representative's arbitrary removal has legal effect According to the theory of entrustment of the legal representative, the legal representative, as a party to the entrustment relationship, has the right to terminate arbitrarily in principle, but limited to the requirement of the company law on the resignation of a director to continue to perform his duties until the successor arrives, the legal representative's right to terminate arbitrarily may be restricted by the commercial organization law. The Supreme People's Court Beijing Zhongzheng Wanrong Pharmaceutical Investment Group Co., Ltd. and Cao Fengjun Company's Resolution Dispute Re-examination Case [(2017) Supreme Law Minzai No. 172] held that the relationship between the company and the directors belongs to the appointment relationship. In the absence of contrary provisions in the law and the articles of association, the resignation of the directors of the company shall generally have legal effect when the resignation of the directors is delivered to the board of the company. Jin Enshu and Cai Mengjie submitted their resignation letters to Century Shengkang Company on October 31 and November 11, 2011 respectively. At that time, Zhao Bingxian was the legal representative of Century Shengkang Company and could represent Century Shengkang Company in accordance with the law. Because he recognized that he had received the two resignations, the resignations of Jin Enshu and Cai Mengjie had taken effect. Beijing Haidian District People's Court Fu Haiyang and Beijing North Aerospace China Times Technology Co., Ltd. requested to change the company registration dispute in the first instance [(2021) Beijing 0108 Minchu No. 58333] held that according to the provisions of the Company Law, if the directors are not re-elected in time at the expiration of their term of office, or if the members of the board of directors fall below the quorum due to their resignation during their term of office, the original directors shall still perform their duties before re-election. Even if Fu Haiyang resigns as a director, he should still perform his duties as a director before he is re-elected, not to mention that the shareholders' meeting has not made a resolution on the appointment of his directors. Regardless of whether Fu Haiyang leaves Tianhua, the dismissal of his manager position must also be decided by the board of directors. Fu Haiyang did not provide evidence to prove that the board of directors had made a decision to dismiss his manager position, so Fu Haiyang remained the manager of Tianhua Company. Fu Haiyang unilaterally requested Tianhua to remove the identity of its directors and managers without the resolution of the shareholders' meeting and the board of directors of Tianhua Company, and to remove the lack of factual and legal basis for the registration of its directors and managers. 3. Obstacles to enforcement after obtaining a successful judgment Even after the successful judgment, the withdrawal of the legal representative still has enforcement obstacles. Huang Qinhu of Renhua County People's Court of Guangdong Province, Jinsheng Industrial Co., Ltd. of Renhua County of Guangdong Province and other disputes related to the company for the first time [(2022) Yue 0224 Zhi No. 387] held that in the process of execution, because both the applicant and the person subject to execution said that they could not elect a new legal representative, the court sent a letter to Renhua County Market Supervision Administration Bureau to ask whether Huang Qinhu could clean up the legal representative of Jinsheng Industrial Co., Ltd. of Guangdong Renhua, renhua County Market Supervision Bureau replied that only in terms of its functions and current relevant laws and regulations, its system does not remove the operating specifications of the legal representative of the limited company. Due to the inability to clear the identity of Huang Qinhu's legal representative in Guangdong Renhua County Jinsheng Industrial Co., Ltd., the execution of this case cannot be carried out. In accordance with the provisions of item 6 of article 264 of the the People's Republic of China civil procedure law, the ruling is as follows: end the execution of case no 387 of Guangdong 0224 (2022). In summary, the withdrawal of the legal representative is a systemic problem, this article hangs a leak, briefly from the above six aspects of the discussion. In practice, we also need to make a specific analysis from at least three angles: the legal representative itself, creditors and minority shareholders. In the part of legal liability, in addition to civil liability, we also need to comprehensively sort out the relevant judicial liability, administrative liability, and even criminal liability, so as to solve the specific problems encountered in the work.

2023-03-29

Viewpoint... Talk about the legal risks and prevention of labor dispatch and labor outsourcing.

Recently, when accepting perennial consultants and conducting legal compliance reviews for enterprises, it was found that many enterprises could not distinguish between labor dispatch and labor outsourcing. In the process of use, there were cases of confused use and inappropriate use. This paper briefly distinguishes the above two composite forms of employment so that everyone can make more accurate use of different forms of labor. Definition of 1. 1. Labor dispatch: Labor dispatch refers to a form of employment in which an enterprise (labor dispatch unit) dispatches the recruited workers to the employing unit by way of operation, and the employing unit directly manages the labor process of the workers. Article 59 of the "the People's Republic of China Labor Contract Law" states: "A labor dispatch unit shall enter into a labor dispatch agreement with the unit that accepts labor in the form of labor dispatch (hereinafter referred to as the employer). The labor dispatch agreement shall stipulate the number of posts and personnel to be dispatched, the duration of dispatch, the amount and payment method of labor remuneration and social insurance premiums, and the liability for breach of the agreement. The employing unit shall determine the dispatch period with the labor dispatching unit according to the actual needs of the job position, and shall not divide the continuous employment period into several short-term labor dispatch agreements". Article 66 states: "Labor contract employment is the basic form of employment in China's enterprises. Labor dispatch is a supplementary form and can only be implemented in temporary, auxiliary or alternative jobs. The temporary jobs specified in the preceding paragraph refer to jobs that last for no more than six months; auxiliary jobs refer to non-main business jobs that provide services for main business positions; alternative jobs refer to workers of the employing unit. During a certain period of time when you are unable to work due to off-the-job study, vacation, etc., you can be replaced by other workers. The employing unit shall strictly control the number of labor dispatched and shall not exceed a certain proportion of its total employment, and the specific proportion shall be prescribed by the labor administrative department of the State Council." It can be seen that labor dispatch involves three parties, workers, employers, employers. Moreover, labor dispatch can only be implemented in temporary, auxiliary and alternative positions, and the total number of useful workers is generally not more than 10% of the total unit employment. 2. Labor outsourcing refers to the employment form in which the employing unit (the contracting unit) contracts the business to the contracting unit, and the contracting unit arranges its own personnel to complete the corresponding business or work content according to the requirements of the employing unit (the contracting unit). The contract issuing unit and the contractor form a civil contractual relationship based on the outsourcing contract, which is not subject to the adjustment of the labor contract law. The contract issuing unit and the contractor agree to deliver certain work of the contract issuing unit to the contractor for completion, and the contract issuing unit shall pay certain expenses to the contractor. The contractor establishes labor relations with the employed workers and manages and controls the workers. The contract issuing unit cannot directly manage and control the workers of the contractor. 2. legal risk and prevention In the practical process, because labor dispatch is limited by the number of posts and employment, in order to avoid the risk of labor dispatch, many enterprises adopt the form of labor outsourcing. However, due to the inability to clarify the difference between labor dispatch and labor outsourcing, there are situations in which the contracting unit directly manages the outsourcing personnel, arranges work, supervises employment, etc., which has actually replaced the status of the contracting unit and transformed it into an employment unit, the legal relationship between the parties has become a labor dispatch in nature. Once a dispute occurs, the contracting unit will not be able to circumvent the labor law's main responsibility on the grounds of business outsourcing. In July 2022, Jiangsu Province, Shanghai City, Zhejiang Province and Anhui Province stipulated in the notice on the issuance of the guidelines on compliance and employment of labor dispatch in the Yangtze River Delta region that "when outsourcing labor services, employers should pay attention to the difference between labor outsourcing and labor dispatch, so as to avoid the situation that labor outsourcing is actually labor dispatch. For example, if an enterprise contracts its business to another unit, but the laborers of the contracting unit accept the command and management of the enterprise, provide labor according to the arrangement of the enterprise, or provide labor in the name of the enterprise, it may be considered as labor dispatch rather than labor outsourcing. " How to prevent the above-mentioned legal risks, first of all, we must clearly distinguish between labor dispatch and labor outsourcing. I believe you have read many such articles before and analyzed them from the perspectives of subject, nature, applicable law, etc., but the more different angles, the more confusing it is. We can simply start from the most essential point, which is the participation of the labor process. That is, labor dispatch enterprises pay attention to the management of the labor process, the employing unit directly arranges the work of the dispatched personnel, the employing unit, that is, the dispatching company, does not participate in the labor process, while the contracting party of labor outsourcing does not participate in the labor process, only pays attention to the work results. By distinguishing this from the above, we can do a good job of legal risk prevention. Enterprises need to pay full attention to the business outsourcing contract signed with the contractor, avoid the formation of de facto labor relations between the employer and the contractor's employees through the terms of the contract, and avoid the terms that the company and the contractor's employees have management relations, that is, the whole agreement involves the management of "people" as little as possible. The contract should also specify the rights and obligations between the employer and the contractor, and the terms of the contract must be complete to avoid unfounded disputes. At the same time, the contractor should be carefully selected. If the state or local government departments have special requirements for service qualifications, professional contractors with corresponding qualifications should be selected, and the scale, credit and management mode of the contractor should be paid attention to. They should sign written labor contracts with employees, pay social insurance for employees, and pay labor remuneration and welfare benefits directly to labor outsourcing personnel.

2023-03-28

Viewpoint | Legal analysis of capital contribution by "creditor's rights to third parties"

With the reform of the company system and the diversification of investment forms, capital contribution in the form of creditor's rights is gradually included in the scope of investors' choice. It is very common for investors to convert their claims on the subject company into equity in the subject company, but there is no clear stipulation as to whether "claims on third parties" are a legal and protected form of capital contribution. Contribution by "claim to three persons" means the way in which the investor contributes to the subject company with his or her claim to a third party other than the subject company. Relevant 1. laws and regulations and their evolution (I) relevant legal provisions According to the revision and evolution of the above-mentioned company law, the provisions of the company law on the form of shareholders' capital contribution are revised from the enumeration form in 1993, that is, "capital contribution can be made in currency, or in kind, industrial property rights, non-patented technology and land use rights as capital contribution", to "capital contribution can be made in currency, or non-monetary property that can be valued in currency and can be transferred according to law, except for property that which cannot be used as capital contribution according to laws and administrative regulations", it also lists non-monetary assets that can be funded in kind, intellectual property rights and land use rights. However, the company law has never made a clear provision on the possibility of making capital contributions by "claims to third parties. Regulations of relevant (II) departments The "Administrative Measures for the Registration of Corporate Debt-to-Equity Conversion" implemented on January 1, 2012 clarified for the first time that creditor's rights can be used as one of the ways of shareholder capital contribution, that is, debt-to-equity conversion, but it did not involve whether to allow capital contribution by "creditor's rights to third parties. The regulations on the Administration of the Registration of registered Capital of companies (2014), which came into effect on March 1, 2014, abolished the above-mentioned measures for the Administration of the Registration of the conversion of Corporate creditor's Rights into Equity, and deleted that the creditor's rights converted into company equity should comply with the provisions on the conversion of contractual debts between creditors and companies into company equity in the operation of the company. The "Detailed Rules for the Implementation of the Regulations on the Registration and Administration of the People's Republic of China Market Entities" (hereinafter referred to as the "Detailed Rules for the Implementation of Registration and Administration") implemented on March 1, 2022 abolished the "Regulations on the Registration and Administration of Company Registered Capital (2014)", although it is still unclear whether The company is funded by "creditor's rights to third parties", but the original provisions on capital contribution by creditor's rights are revised, it should be clear and complete, and can be evaluated and transferred in accordance with the law, in accordance with the provisions of the articles of association of the company ", and it is not prohibited to make capital contributions with" claims on third parties. 2. relevant judicial precedents that recognize the effect of "claims on third parties". (I) Li Xiangcai and Changchun Zhengda Real Estate Development Co., Ltd. and Changchun Construction State-owned Assets Management Co., Ltd. Shareholder Investment Dispute Re-trial Case-(2020) Ji Min Shen No. 694 The judgment of the Jilin Provincial Higher People's Court: The first paragraph of Article 24 of the the People's Republic of China Company Law promulgated in 1993 stipulates: "Shareholders may make capital contributions in money, or they may make capital contributions in kind, industrial property rights, non-patented technology, and land use rights. The real thing, industrial property rights, non-patented technology or land use rights as capital contributions must be evaluated and the property must be verified, and the price must not be overvalued or undervalued. The valuation of land use rights shall be handled in accordance with the provisions of laws and administrative regulations." The aforementioned law does not restrict shareholders from making capital contributions with creditor's rights, and the creditor's rights have actual value. According to the "certificate" issued by the general office of Changchun Municipal People's Congress on May 18, 2011 and the "situation statement" issued by Jiyang company on January 30, 2011 and related transfer bills, the creditor's rights and contributions involved in the case have been repaid by the general office of Changchun Municipal People's Congress and Changchun industrial management cadre school respectively. (II) Chen Xiuhua and State Energy Group Ningxia Coal Industry Group Co., Ltd. Re-trial of Contract Dispute-(2019) Jingmin Shen No. 4656 The judgment point of view of the Beijing Higher People's Court: According to the evidence in the case, it can be concluded that the signing of the Transfer Agreement and the Investment Joint Venture Contract is essentially the consideration paid by Shenhua Company to acquire the equity of Baiji Jinguo Company with its creditor's rights to Fengchen Company and its Xining Branch. The nature of the creditor's rights of 12.6036 million yuan is essentially a special way of equity contribution. The debtor Fengchen Company sold the property of the subject matter to be executed without authorization, which made the execution case impossible, resulting in the fact that Ningxia Coal Industry Company could not perform its capital contribution obligation by realizing its creditor's rights. Ningxia Coal Industry Company shall continue to pay the remaining price in accordance with the agreement of the Memorandum and compensate for the interest loss arising from the failure to pay in time due to the breach of contract. Ningxia Coal Company shall fulfill its capital contribution obligation when it signs the Transfer Agreement on October 25, 2001, so the interest shall be calculated from the date on which Ningxia Coal Company shall fulfill its obligation to pay the equity consideration. (III) Yang Xueqing and Yizheng Zhentong Copper Co., Ltd., Zhu Yong, Xie Jianxin, Yizheng Yuetang Town Agricultural Comprehensive Service Center Dispute Appeal Case-(2011) Su Shang Zhongzi No. 0156 The judgment of the Jiangsu Provincial Higher People's Court: China's law does not explicitly prohibit shareholders from using their claims to third parties as capital contributions, and the original judgment held that the relevant laws of our country denied the effect of shareholders using their claims to third parties as capital contributions, and the reason for the judgment lacked legal basis, and the Court corrected it. However, as mentioned above, the creditor's rights of 4.99 million yuan in the net assets of the original Zhentong Material Factory contributed by Yang Xueqing, Zhu Yong, Xie Jianxin and others are actually formed by the withdrawal of the contribution of Zhentong Material Factory, and the debtor Taizhou Spotlight Company will be canceled within a few days after receiving the payment. There is no other evidence to show that the creditor's rights have been realized or can be realized in the future, therefore, the original judgment held that Yang Xueqing, Zhu Yong and Xie Jianxin had significant defects in the use of the creditor's rights as capital contributions, and should bear the corresponding supplementary liability if the defects were not made up. This view and the corresponding judgment made accordingly are correct. If the investor effectively makes up for the defects of capital contribution within a reasonable period of time, it shall be determined that he has fulfilled the obligation of capital contribution. Therefore, if the creditor's rights of 4.99 million yuan against Taizhou Spotlight Company recorded in the accounting books of Zhentong Material Factory have been realized, Yang Xueqing, Zhu Yong and Xie Jianxin do not need to bear the corresponding supplementary compensation liability for the 4.99 million yuan. However, judging from the facts found out in this case, the existing evidence is not sufficient to prove that Zhentong Material Factory's claim of 4.99 million yuan to Taizhou Focus Company has been realized. Therefore, the original judgment that Yang Xueqing, Zhu Yong and Xie Jianxin bear the corresponding supplementary compensation liability is correct. The conditions to be met by the "claims on third parties" used by the 3. to contribute capital. Clear ownership and integrity of (I) The funder shall have a direct right basis for the "claims on third parties" used to contribute, I .e. the rights of "claims on third parties" formed through specific legal relations shall be vested in the funder. At the same time, the "claim to a third party" used to contribute capital should be free from other rights burdens or defects in rights, the creditor should have fulfilled all the obligations corresponding to the right to exercise the claim, the creditor has the right to exercise the right to the debtor, and the debtor has no other defenses. (II) may be assessed and transferred in accordance with the law. The "claim to a third party" used to contribute capital should have the value of the asset and the claim should be disposable and negotiable, and the corresponding value can be determined by evaluation. According to Article 545 of the Civil Code, claims may be transferred except for claims that are not transferable according to the nature of the claim, the agreement of the parties or the provisions of the law. In addition, the "creditor's rights to third parties" used for capital contribution should be transferable, and according to the nature of the creditor's rights and legal provisions, it should not be a non-transferable creditor's rights, and there should be no relevant agreement between the investor and the debtor or other interested parties to restrict or prohibit the transfer of creditor's rights. (III) in accordance with the Articles of Association According to the provisions of Article 13 of the Rules for the Implementation of Registration Administration, the provision of capital contribution by the creditor's rights of domestic companies in accordance with the law shall comply with the provisions of the articles of association of the company. Therefore, the subject company's articles of association should not limit the capital contribution of the shareholders of the company to "claims to third parties", otherwise the capital contribution of the funder to "claims to third parties" will violate the relevant provisions of the subject company's articles of association. The (IV) debtor is a domestic company. Article 13 of the Rules for the Implementation of Registration Administration limits the scope of capital contribution by creditor's rights to "creditor's rights of domestic companies". Therefore, when the investor chooses to make capital contribution by "creditor's rights to third parties", it is recommended to choose "third parties" (I. e. debtors) as the creditor's rights of domestic companies. The legal risks and suggestions of 4.'s capital contribution by "creditor's rights to the third party". The legal risk of (I) capital contribution by "creditor's rights to the third party". The current Company Law and the Rules for the Implementation of Registration Administration do not exclude the mode of operation of "creditor's rights to third parties", but the case of "creditor's rights to third parties" is only more common in SPV companies, and very few in operating entities. In view of the fact that the contribution of "claims to third parties" depends on the solvency and willingness of the third party, the third party as a debtor is independent of the funder and the subject company, and there is great uncertainty as to whether the claims can be recovered and the amount of recovery. In addition, the realization of the funder's "claims against third parties" may be subject to litigation or arbitration and enforcement procedures, and there is uncertainty about the period and cost of claims recovery. If a third party has an objection, defense or set-off claim to the claim, it may affect the successful recovery of the claim and the final value of the claim. Article 28 of the Company Law stipulates: "Shareholders shall pay in full and on time the amount of capital contributions they have paid as stipulated in the articles of association of the company. If a shareholder makes a capital contribution in currency, the full amount of the capital contribution in currency shall be deposited in the bank account opened by the limited liability company; if the capital contribution is made in non-monetary property, the transfer of its property rights shall be handled in accordance with the law. If a shareholder fails to pay the capital contribution in accordance with the provisions of the preceding paragraph, in addition to paying the full amount to the company, he shall also be liable for breach of contract to the shareholders who have paid the capital contribution in full and on time"; Article 83, paragraph 2 stipulates: "If the promoter fails to pay the capital contribution in accordance with the provisions of the preceding paragraph, he shall be liable for breach of contract in accordance with the promoter's agreement." Article 9 of the "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law" (hereinafter referred to as "Interpretation III of the Company Law") stipulates: "The capital contribution of non-monetary property has not been evaluated in accordance with the law, and the company, other shareholders or company creditors If it is requested to determine that the investor has not fulfilled the obligation of capital contribution, the people's court shall entrust a legally qualified evaluation agency to evaluate the property. If the price determined by the evaluation is significantly lower than the price set in the articles of association, the people's court shall determine that the investor has not fully fulfilled the obligation of capital contribution in accordance with the law"; the second paragraph of Article 13 stipulates: "if the creditors of the company request that the shareholders who have not fulfilled or fully fulfilled the obligation of capital contribution shall bear supplementary compensation liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the non capital contribution, The people's capital contribution shall be supported; the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already assumed the above-mentioned responsibilities, and other creditors make the same request, the people's court will not support it"; Article 15 stipulates: "After the investor contributes with non-monetary property that meets the legal conditions, due to Market changes or other objective factors cause the capital contribution to depreciate, and the company, other shareholders or company creditors request the investor to bear the responsibility of making up the capital contribution, the people's capital contribution, the people's court will not support. However, unless otherwise agreed by the parties." According to the above regulations and judicial cases, if the actual value of the "creditor's rights to the third party" property used for capital contribution is found to be significantly lower than the capital contribution value set by the articles of association after the establishment of the company or the delivery of capital contribution, the shareholder who delivers the capital contribution has the risk of making up the difference of its capital contribution and assuming the liability for breach of contract to the shareholder who has paid the capital contribution in full and on time, and the risk of additional liability for the unliquidated portion of the Company's debt to the extent of the unfunded principal and interest. If, after a shareholder contributes with a true and legal "creditor's right to a third party", the contributed property depreciates due to market changes or other objective factors, and the company, other shareholders or creditors of the company request the shareholder to bear the responsibility for making up the contribution, if the parties separately agree on the way to bear the responsibility, there is a risk that the shareholder will bear the corresponding responsibility according to the agreement. The relevant proposal to (II) the contribution of "claims to third parties". 1. Determine that the claim meets the conditions for being the subject of the capital contribution. To make capital contribution with "creditor's rights to third parties", it shall be confirmed that the relevant creditor's rights meet the conditions as the subject of capital contribution, and attention shall be paid to checking the relevant information on the formation of creditor's rights, including but not limited to the contracts formed by the creditor's rights, payment vouchers for current payments, effective judgment documents, articles of association of the subject company and other documents, so as to judge whether the "creditor's rights to third parties" used for capital contribution meet the relevant provisions. 2, the contribution of claims to carry out the assessment procedures. According to the provisions of the second paragraph of Article 27 of the Company Law, "the non-monetary property as capital contribution shall be assessed and valued, and the property shall not be overvalued or undervalued. Where laws and administrative regulations have provisions on valuation, such provisions shall prevail". According to the provisions of Article 9 of the Interpretation III of the Company Law, "if the company, other shareholders or creditors of the company request that the contributor fail to fulfill the obligation of capital contribution, the people's court shall entrust a legally qualified evaluation institution to evaluate the property. If the price determined by the evaluation is significantly lower than the price set in the articles of association, the people's court shall determine that the contributor has not fully fulfilled the obligation of capital contribution in accordance with the law". There are different understandings in practice for the pre-procedure of assessing whether it is a non-monetary property contribution. According to the judgment (2013) Minshen Zi No. 2479, the Supreme Law specifically understands Article 9 of the Interpretation III of the Company Law as follows: "If a shareholder makes capital contribution in non-monetary terms, the legal evaluation and valuation is not a prerequisite for him to fulfill his capital contribution obligations; Only when the company, other shareholders or creditors of the company claim to the court that the shareholders who make capital contributions in non-monetary terms have not fully fulfilled their capital contribution obligations, the court will the evaluation and valuation procedures. In this case, the negotiated price of the right to use the land involved in the case in the articles of association of the US-China High-tech Company and Xiang Hualiang is 15 million yuan. As long as the land use right transfer procedures are handled, it should be regarded as the US-China High-tech Company has fully fulfilled its obligation to contribute capital." However, in order to protect the interests of the company, shareholders, the company's creditors and other parties, when the shareholders make capital contributions as non-monetary property "claims to third parties", it is still recommended to perform the corresponding evaluation procedures and value the claims after verifying that the claims are true, legal, valid and transferable. 3, in accordance with the law to handle the transfer of property rights procedures. According to the provisions of the first paragraph of Article 28 of the Company Law, if a shareholder makes a capital contribution with non-monetary property, he shall go through the formalities for the transfer of his property rights in accordance with the law. Therefore, if the capital contribution is made by "claims to third parties", the funder shall legally transfer the real claims to the subject company and handle the transfer of its property rights in accordance with the law. The investor shall sign the relevant "Creditor's Rights Transfer Agreement" with the target company and the debtor, and the investor shall also sign the "Capital Increase Agreement" and other documents with the target company, and specify in the agreement the cause and time of the creditor's rights, the amount of the creditor's rights, the debtor's situation, the performance of the creditor's rights, the debtor's confirmation of the creditor's rights, the amount of the creditor's rights to be converted into capital contribution and the method of the price, dispute, the dispute resolution and the liability for breach. 4, the implementation of the corresponding resolution or approval procedures. According to Article 37 of the Company Law, "the shareholders' meeting exercises the right to increase the company's

2023-03-28

Viewpoint | A brief analysis of real estate execution issues

Foreword As an important asset of the executed person, real estate has always been the focus of the application for execution. This paper makes the following analysis and discussion on the implementation problems that may be encountered in the implementation of real estate, such as illegal construction of houses, existence of leasing, state-owned land transfer and state-owned land allocation of houses that have not yet been completed and accepted. Execution of Illegal Houses Built by 1. Executed Persons The illegal buildings here refer to the buildings that violate the land law, planning law, construction law and other relevant laws and regulations, and have not obtained the construction project planning permit or temporary construction project planning permit, or have not been constructed according to the above permission requirements. Illegal construction can be divided into procedural illegal construction and substantive illegal construction. Procedural illegal construction means that the building does not hinder urban planning, and the builder must apply for a real estate certificate in accordance with certain procedures. Substantial illegal construction means that a building cannot be corrected according to procedures to make it a legal building. Article 64 of the "the People's Republic of China Urban and Rural Planning Law" distinguishes between the legal responsibilities of procedural illegal construction and substantive illegal construction, "... If corrective measures can be taken to eliminate the impact on the implementation of the plan, corrections shall be made within a time limit, and the construction project A fine of 5% to 10% of the cost; if corrective measures cannot be taken to eliminate the impact, the physical object or illegal income shall be confiscated, and a fine of less than 10% of the construction project cost may be imposed." Implementation of Illegal Building of (I) Procedure According to Article 231 of the the People's Republic of China Civil Code, "the establishment or elimination of real rights due to legal construction, demolition of houses and other factual acts shall take effect from the achievement of the factual acts". Legal construction acts can establish real rights. Buildings that have not obtained real property rights due to illegal construction procedures naturally cannot establish real property ownership. However, the possessive interest in the illegal construction of the house may be the subject of the execution of the disposal. The Higher People's Court of Shandong Province issued the "Answers to Difficult Legal Issues in Enforcement", which stipulates that unlicensed houses built on state-owned construction land do not belong to the property that the court shall not seal up, seize, or freeze as stipulated by the law and judicial interpretation. Therefore, for unlicensed houses built on state-owned construction land, they can apply to the people's court for execution and disposal. In the execution, the people's court should be applied to solicit opinions from the housing registration authority on whether the house can be converted into a licensed house, and it should be used as a reference for determining the value of an unlicensed house. When disposing of a house that has not gone through the initial registration, if it has the initial registration conditions, the court can issue a "Notice of Assistance in Enforcement" to the housing registration agency according to law after disposal; if it does not have the initial registration conditions for the time being, the court can issue a "Notice of Assistance in Enforcement" to the housing registration agency after disposal, and state that the buyer or the person who has completed the relevant procedures and met the initial registration conditions, the housing registration agency shall register in accordance with the Notice of Assistance in Implementation; If the initial registration conditions are not met, the "status quo disposal" shall be carried out in principle, I .e. the status quo of the house that does not meet the initial registration conditions shall be disclosed before disposal, the buyer or the transferee shall acquire the house according to the status quo of the house's rights, and the subsequent property right registration shall be the responsibility of the buyer or the transferee. The Supreme People's Court issued the Supreme People's Court's Notice on Forwarding the Ministry of Housing and Urban-Rural Development.<关于无证房产依据协助执行文书办理产权登记有关问题的函>The Notice also makes relevant provisions. In addition, in the online auction announcement, the status quo that the house does not have the registration conditions, the nature of the land, and the related risks of the buyer should be disclosed. Even if the illegal building is demolished due to violation of relevant laws and regulations in the future, it also belongs to the executed property. Within the acceptable and expected risk range of bidders. The legal effect of the transfer of property rights can still occur in the execution of the auction decision made by the court, without the need for publicity through the registration of property rights changes. Related Provisions: Article 14 of the Provisions of the Supreme People's Court on Several Issues Concerning Online Judicial Auctions by People's Courts Where online judicial auctions are implemented, the people's court shall give special reminders to the following matters through the online judicial auction platform on the day the auction announcement is issued: (3) Known defects and rights burdens of the auction property; (IV) the auction property is subject to the status quo of the physical object, the bidder may apply for on-site samples; (V) the bidder decides to participate in the bidding, it is deemed to have full knowledge of the auction property and to accept all known and unknown defects of the auction property; the deposit will not be refunded after the (VII) buyer repents. Article 15 The person subject to execution shall provide relevant information and explanations on the quality of the property to be auctioned. If the people's court has made public announcements and special reminders in accordance with the requirements of Articles 13 and 14 of these regulations, and declared in the auction announcement that it cannot guarantee the authenticity or quality of the auction property, it shall not bear the liability for defect guarantee. Similar cases: Case 1. Supreme People's Court (2016) Supreme Law Enforcement No. 161 The court believes that before the illegal building is demolished or demolished by the relevant departments by exercising public power, the illegal building still has a certain use value. Although the person subject to execution does not have ownership of the illegal building, its long-term possession, use and lease The income obtained should be regarded as the executable property with use value. Article 2 of the Notice of the Supreme People's Court Forwarding the Enforcement of Unlicensed Real Estate by the Ministry of Housing and Construction (hereinafter referred to as the Notice) clearly states that "when disposing houses that have not been initially registered in the enforcement procedure, ...... does not have the conditions for initial registration, in principle, 'status quo disposation' is carried out, that is, the current situation of the house that does not have the conditions for initial registration is disclosed before disposal, and the buyer or the owner acquires the house rights, subsequent property registration matters are the sole responsibility of the buyer or the recipient." The Intermediate People's Court of Nanping City, Fujian Province, according to the status of the building to deal with the requirements of the notice. The enforcement ruling clearly informs the current situation of the illegal building, and also indicates the fire safety and other risks that may arise after the delivery of the building. The enforcement ruling only changes the factual state of possession of illegal buildings, does not involve the ownership of buildings, does not legalize illegal buildings through assistance in enforcement, and does not affect the administrative authorities' decision to deal with illegal buildings in the future. Enforcement of (II) Substantive Illegal Buildings There is a view that real estate that has not been examined and approved by the administrative department or built in accordance with the approved content belongs to "articles or property rights prohibited by laws and administrative regulations" as stipulated in Article 7 of the auction Law, and the court shall not trade, transfer or circulate by auction, sale, debt repayment, etc. The court's compulsory disposal of illegal buildings is suspected of legalizing illegal buildings through judicial actions, and is suspected of infringing the administrative powers of the administrative department. Therefore, the actual illegal buildings cannot be auctioned. However, the author believes that the construction method itself has temporary availability. Before the illegal building is demolished, confiscated or dismantled by the administrative department, it still has the beneficial property of property, which can be used not only in the person subject to execution, but also in others, and should be regarded as the executable property with temporary use value. However, for the actual illegal construction, it should not be legalized through judicial execution. The court auction does not take the transfer registration of the ownership of the illegal construction as a precondition. In the judicial auction and other disposal, the bidder must fully and truthfully perform the obligation of informing the defect risk. The informing is divided into three levels: first, informing the rights and utility defects of the auctioned real estate. It is necessary to specially prepare and announce the "Notice of Defects in Auctions" for such cases to clarify the illegal situation of the real estate involved. The second is to warn that the registration of property rights may be blocked. The relevant text of the notice is marked in bold, underlined and other significant ways to warn bidders that after winning the illegal building, they have the right to temporarily possess, use and earn income from the illegal part of the real estate. The illegal part of the real estate cannot be reflected in the ownership certificate, and even the legal part is prohibited from issuing certificates due to the involvement of the illegal part. The third is to prompt the consequences of holding illegal buildings and give reasonable suggestions. Remind bidders to correctly handle historical issues, and clarify that in accordance with Article 64 of the Urban and Rural Planning Law, the administrative department has the right to take penalties such as "correction within a time limit and fines, demolition within a time limit, confiscation of physical objects or illegal income" for illegal buildings. If the illegal part can be physically separated from the legal building, it is recommended to dismantle it by itself, and for the illegal building that can be corrected, it is recommended to go through the relevant procedures in time. Relevant provisions: "on the implementation of difficult legal issues in Shandong High Court" 8. Can the court enforce unlicensed houses built on state-owned construction land? A: unlicensed houses built on state-owned construction land are not property that the courts may not seal up, seize or freeze as stipulated by the law and judicial interpretation. Therefore, for undocumented houses built on state-owned construction land, the court can enforce. During the implementation, opinions should be solicited from the housing registration authority on whether the house can be converted into a licensed house, and used as a reference for determining the value of an unlicensed house. When disposing of a house that has not gone through the initial registration, if it has the initial registration conditions, the court can issue a "Notice of Assistance in Execution" to the housing registration agency according to law after disposal; if it does not have the initial registration conditions temporarily, the court can issue a "Notice of Assistance in Execution" to the housing registration agency after disposal, and state that after the house buyer or the person who has completed the relevant procedures and met the initial registration conditions, the housing registration agency shall register in accordance with the Notice of Assistance in Execution; If the initial registration conditions are not met, the "status quo disposal" shall be carried out in principle, I .e. the status quo that the house does not meet the initial registration conditions shall be disclosed before disposal, the buyer or the recipient shall acquire the house according to the status quo of the rights of the house, and the subsequent property right registration shall be the responsibility of the buyer or the recipient. Reference Case 2. Shandong Higher People's Court (2021) Lu Zhi Fu No. 231 The opponent claimed that in the (2019) Lu 03 Zhifu No. 206 execution ruling, the real estate involved in the case did not go through the procedures of construction project approval, planning, land transfer, commencement permit, completion acceptance, etc., which was an illegal building. The Zibo Intermediate People's Court held that, in accordance with Article 15 of the "Provisions of the Supreme People's Court on Several Issues Concerning Online Judicial Auctions by People's Courts", the person subject to execution should provide relevant information and explanations on the quality of the auction property. If the people's court has made public announcements and special reminders in accordance with the requirements of Articles 13 and 14 of these regulations, and declared in the auction announcement that it cannot guarantee the authenticity or quality of the auction property, it shall not bear the liability for defect guarantee. With reference to the Notice of the Supreme People's Court on Forwarding the Letter of the Ministry of Housing and Urban-Rural Development on Issues Related to the Registration of Property Rights for Unlicensed Real Estate Based on Assistance in Enforcement Documents, even if there are violations of regulations, the real estate involved in the above case also has property attributes. The court can dispose of the above real estate as it is, and the consequences after disposal have nothing to do with the objector. Therefore, the seizure of the Zibo Intermediate people's Court in accordance with the law and the assessment of the auction and disposal of the property involved in the above-mentioned case by the people's Court of Zhangdian District in accordance with the relevant laws and regulations. The higher people's Court of Shandong Province held that the real estate involved in Gong Zibin's claim was an unlicensed real estate, and the court could not dispose of it without going through the relevant formalities. Referring to Article 2 of the notice of the Supreme people's Court on forwarding the Ministry of Housing and Urban-Rural Development on issues related to the registration of property rights on the basis of assistance in the implementation of documents, the real estate involved in the case still has a certain property value, in principle, the people's court conducts "status quo disposal" and discloses the situation of the property before disposal, so that the buyer or recipient can acquire the house in accordance with the status quo of the house's rights. According to the above provisions, the people's court has the right to seal up and dispose of the property involved in the case....... 2. the execution of the rented house by the person being executed. (I) enforcement of leased premises The implementation practice of auction real estate often involves the existence of housing rental issues on the property disposed of by auction, in which case it is an auction with rent or an auction without rent, often becomes the focus of the implementation of the dispute. 1. Confirm the right to dispose of the house Before auctioning and disposing of the house involved in the case, the issue of the disposal right of the enforcement court should first be confirmed, mainly whether the enforcement court is the first court of the house involved in the case, and if it is waiting for seizure, it should be auctioned after obtaining the disposal right in accordance with the provisions of the Supreme people's Court on issues related to the first seizure of the court and the priority creditor's rights enforcement court. As for whether or not to bring rent auction, it is not an obstacle for the people's court to make an auction ruling. Related provisions: Article 1 of the provisions of the Supreme People's Court on the auction and sale of property in the civil execution of the people's court: in the execution procedure, after the property of the person subject to execution is sealed up, seized or frozen, the people's court shall promptly auction, sell or take other enforcement measures. 2. Can "auction with rent" The key issues in the auction with lease are whether the lease time is before or after the seizure, and the implementation of the court's principle of full publicity (due diligence disclosure). The lease of the property does not affect the ownership of the house, it is still the property of the executed person, and the enforcement court may seize and evaluate the auction. The lease before the seizure or mortgage is a legal and valid lease and may be auctioned with the lease in accordance with the regulations. The lease after seizure or mortgage can be removed, and the lessee does not enjoy the "unbroken lease" and the right of first refusal. Is the procedure of removal of the lease after seizure necessary? The practice is that the enforcement judge generally takes measures to vacate the house only after the auction is over after identifying the lease. 3. Auction publicity In the auction announcement, notice, subject matter questionnaire in a clear position, clear font publicity lease facts and lease situation, and should take a reasonable way to prompt bidders to pay attention. With regard to the scope of the public lease, the three main factors of the public lease term, lease fee and preemptive right holder need to be expressed in words, and the disclosure of the oral agreement is clear, and the failure to provide rent payment records is also clear, and the lessee's preemptive right should also be publicized. Related provisions: The first paragraph of Article 726 of the Civil Code: If the lessor sells the leased house, it shall notify the lessee within a reasonable period of time before the sale, and the lessee shall have the right to purchase on the same terms; however, The house shall be subject to the exercise of the right of first refusal by the co-owner or the lessor sells the house to a close relative). Article 7 of the Provisions of the Supreme People's Court on the Auction and Sale of Property in Civil Execution by the People's Courts The executants shall conduct necessary investigations into the ownership, possession and use of the auction property, make a record of the investigation of the current situation of the auction property or collect other relevant information. Article 11 The people's court shall, five days before the auction, notify the parties and the known pre-emptive right to be present on the auction day in writing or in other appropriate ways that can confirm the receipt. Provisions of the Supreme People's Court on Several Issues Concerning Online Judicial Auctions by People's Courts Article 6 Where an online judicial auction is implemented, the people's court shall perform the duty of notifying the parties and the right of first refusal. Article 13 Where an online judicial auction is implemented, the people's court shall publicize the following information through the online judicial auction platform on the day of the auction announcement:... Text description, video or photo, etc., (V) the status quo of the auction property ownership, possession and use, accompanying obligations, etc.; (VI) the subject of the right of first refusal and the nature of the right; (VII) notice or inability to notify the parties, the known right of first refusal... 4. Waiting for Objection A dissenting period is reserved in the auction announcement, because factors such as the legality of the lease contract and the existence of an outsider to the execution of the subject matter may affect the progress of the execution or have a significant impact on the reference disposal price of the execution of the subject matter, and the reference price for the disposal of the property is generally determined after the dissenting period. 5. Determine the reference price for disposal and vacate the house. In</关于无证房产依据协助执行文书办理产权登记有关问题的函>

2023-03-27

Viewpoint... Analysis of disputes over "back-to-back" contract terms between construction enterprises and sub-suppliers.

[Abstract]] In practice, in order to transfer or avoid the owner's project payment risk, construction enterprises often agree with the sub-supplier "back-to-back" contract terms. The legal nature and effect of "back-to-back" contract terms are controversial, and there are no uniform rules of judicial adjudication. The author thinks that the key to identify and deal with the "back-to-back" contract terms should be based on the basic principles of good faith, fairness and reasonableness, and to prevent the abuse of the "back-to-back" contract terms. Construction enterprises should pay attention to the design and application of "back-to-back" contract clauses in specific contracts, and actively and properly solve the disputes caused by "back-to-back" contract clauses. Subject words] Construction enterprise sub-supplier "back-to-back" contract terms. Since 2019, real estate policy and market changes, coupled with the superimposed effect of the new crown epidemic, have put greater market pressure on construction companies. At the same time, the "downstream" sub-suppliers of construction enterprises are increasingly lacking reasonable "patience" for their receivables, and the number of litigation or arbitration disputes against construction enterprises by sub-suppliers has increased significantly, which has created a greater "squeeze" pressure on construction enterprises. In order to transfer or avoid the owner's project payment risk, construction enterprises often agree on "back-to-back" contract terms with sub-suppliers. On the basis of combing the manifestation, nature and effect of the "back-to-back" contract terms, this paper puts forward some opinions and suggestions on the design and application of the "back-to-back" contract terms of construction enterprises, and actively and properly solves the disputes caused by the "back-to-back" contract terms. The form of "back-to-back" contract terms between 1. construction enterprises and sub-suppliers. In this paper, the sub-supplier of construction enterprises is not a strict concept of legal subject, mainly refers to the construction enterprises in its contracted construction projects of subcontracting, subcontracting, affiliated units or individuals, as well as materials, equipment, labor supply units or individuals and other broader subjects. "Back-to-back" contract terms appear in contracts of a variety of natures, such as subcontracting, subcontracting, affiliation, sale and lease, between construction enterprises and sub-suppliers. And "back-to-back" contract terms are not clearly defined in law. Therefore, in practice, the "back-to-back" contract terms are expressed in a variety of forms, the following are several common forms of expression: 1, the owner to the construction enterprise payment is a prerequisite for the construction enterprise to pay the sub-supplier. In the case of "(2020) Supreme Court Minzhong No. 106", the subcontracting contract stipulates that "60% of the completion settlement amount of the subcontracting project shall be paid within 45 days after the completion settlement and the final audit entrusted by the employer is qualified (and the contractor has received the corresponding project payment from the employer for 15 working days)... If the construction unit (employer) fails to pay the contractor on time, the contractor fails to pay the subcontractor according to the time agreed in the contract. When the project payment, it is not considered a breach of contract by the contractor". Shanghai No. 2 Intermediate People's Court "(2021) Hu 02 Min Zhong No. 392" case in the subcontracting contract stipulates that "if the construction unit fails to pay the project progress payment and project settlement payment to Party A, the period for Party A to pay the project progress payment and project settlement payment to Party B shall be extended accordingly, and Party A shall not be liable for breach of contract". 2. The settlement price of the subcontract is based on the settlement price between the construction enterprise and the owner, and a certain percentage of the "floating rate" or "management fee" is taken ". In the case of "(2008) Zhe Min Yi Zhong Zi No. 192" of Zhejiang Higher People's Court, it is stipulated in the subcontract that "the relevant settlement shall be subject to the terms of the contract and settlement basis signed between Party A and Party C (the owner's unit)"; (2021) Su 13 Min Zhong No. 1107 "case of Suqian Intermediate People's Court of Jiangsu Province stipulates in the team contract that" the total contract price of the project is provisional, and the final price shall be subject to the audit price of the audit unit after completion and acceptance, and the downward floating rate of the project concession is 5.7. The project valuation method is implemented by the national 2004 list valuation standard and Jiangsu Province 2004 valuation table, and the relevant funds are implemented by the terms of the construction party's large contract ". 3. The settlement and payment of the sub-supplier shall be carried out in accordance with the settlement and payment agreed in the contract between the construction enterprise and the owner. In this case, there is often a "back-to-back" contract clause "agreement is unclear. In the case of "(2021) Beijing 03 Minzong No. 7492" of Beijing No.3 Intermediate People's Court, the subcontract stipulated that "the contract between Party A and Hesheng Company shall be attached to the contract (the payment method shall be paid according to the back-to-back payment method between Party A and Hesheng Contract)". The court held that "there is no specific agreement on the back-to-back payment method, so it shall be deemed that both parties to be unclear"; in the case of "(2008) Zhe Min Yi Zhong Zi No. 192" of Zhejiang Higher People's Court, the subcontracting contract stipulates that "the relevant settlement shall be subject to the contract terms and settlement basis signed by Party A and Party C (the owner unit)", but it does not stipulate a specific payment time. The court does not support the construction enterprise that "the project price involved in the case shall be subject to the payment time determined in the general contracting contract, the claim that the conditions under which the sub-supplier demanded payment for the work were not fulfilled. 4, serial sales contract, lease contract in the "back-to-back" contract terms. "Back-to-back" contract terms are commonly found in layers of subcontracted construction contracts, but in contract practice, "back-to-back" clauses also appear in serial sales contracts and lease contracts, and their manifestations are similar to those in construction contracts. The "back-to-back" contract terms are similar, and the essence of the terms is still the agreement of the buyer to transfer the risk to the seller. In the case of "(2021) Supreme Fa Min Shen No. 5750" of the Supreme People's Court, the second paragraph of Article 9 of the procurement contract stipulates that "Party B (Sinopec Fujian Branch) shall pay the full purchase price within 2 working days after receiving the end-user payment and the VAT invoice issued by Party A (Advanced Oil Depot Company) according to the settlement quantity". The legal nature of the "back-to-back" contract terms between 2. construction enterprises and sub-suppliers. Regarding the legal nature of "back-to-back" contract clauses, there are currently three views: conditional clauses, term clauses and neither conditional nor term clauses. (I) conditional terms Some viewpoints hold that whether the owner can pay the construction enterprise project funds is an uncertain fact, whether it will eventually happen and when it will happen are uncertain. Therefore, the nature of "back-to-back" contract clauses should be determined as conditional clauses according to Articles 158 and 159 of the Civil Code. Whether the agreed payment terms are fulfilled determines whether the sub-suppliers' payment claims should be supported. In the case of Ji Min Wu Zhong Zi No. 182 (2014) of Jinan Intermediate People's Court of Shandong Province, the court held: "Judging from the smooth performance of the contract and the purpose of agreeing on this clause, Shandong Road and Bridge Company's general contract for the project of Section I of Liangji Canal Bridge Project on Taibelou West Road in Jining City amounts to more than 0.2 billion yuan. If Shandong Road and Bridge Company needs to pay the subcontractor in advance before receiving the payment from the owner, shandong Road and Bridge Company is very difficult to have such ability to pay. Therefore, it was agreed that Shandong Road and Bridge Company would pay Chongqing Zhixiang Company after receiving the payment from the owner for the subcontracted project, which was conducive to the smooth performance of the contract and was equivalent to sharing the risk between the two parties. Article 15.5 of the contract stipulates:" Party A shall pay the project funds to Party B in a timely manner after receiving the project funds allocated by the owner. If the owner unit fails to allocate Party A's project funds in time, Party A has the obligation to actively pursue the project funds from the owner, but Party A shall not bear any liquidated damages and interest caused by the delay in payment to Party B. "The agreement also reflects from the side that Chongqing Zhixiang Company agrees that Shandong Road and Bridge Company will pay the project funds to Chongqing Zhixiang Company after receiving the project funds paid by the owner. From the perspective of trading habits and the principle of good faith, Shandong Road and Bridge Company applies for the owner to pay the project payment period by period according to the project progress and the quantities completed by each subcontractor. The supervision unit issues the payment certificate after examination. The owner allocates the project payment to Shandong Road and Bridge Company according to the payment certificate, and Shandong Road and Bridge Company pays the project payment to the relevant subcontractors according to the payment certificate. To sum up, although Chongqing Zhixiang Company's construction project has been completed and delivered to the acceptance, Shandong Road and Bridge Company has also applied for the owner to pay the corresponding amount, but whether the owner pays the corresponding amount determines whether Shandong Road and Bridge Company's payment terms are fulfilled and whether Chongqing Zhixiang Company's payment claim should be supported". (II) term clause The view is that the owner's payment is a fact of certainty and that the owner's payment of the works is only a matter of the length of the payment period, so the nature of the "back-to-back" contract clause should be recognized as a term clause in accordance with the provisions of Article 160 of the Civil Code. The problem with this view is that there is no clear deadline for the contractor to obtain payment from the owner, and in practice construction companies often take measures to delay the payment deadline and evade their obligation to pay to the sub-supplier. "However, in the contract with a time limit in Article 46 of the Contract Law, there is no provision for the parties to improperly accelerate or delay the arrival of the time limit, which makes the subcontractor unable to rely on when facing the general contractor maliciously evading the payment obligation. The provisions of Article 45, paragraph 2, of the Contract Law have to be applied by analogy, causing embarrassment in the application of the law". (III) is neither conditional nor term. According to this view, the conditions and time limit stipulated in Articles 159 and 160 of the Civil Code refer to the conditions and time limit attached to civil legal acts, and the achievement of the conditions determines the entry into force or expiration of the civil legal act, and the arrival of the time limit determines the entry into force or expiration of the civil legal act. If the "back-to-back" contract terms are understood as the conditions and periods attached to civil legal acts, then the entire subcontract has not yet entered into force or the entire "back-to-back" contract terms have not yet entered into force before the attached conditions are fulfilled or the attached period arrives, which is obviously contrary to the original intention of the construction enterprise to formulate the "back-to-back" contract terms. Therefore, the "back-to-back" contract clause is neither conditional nor term clause, it is only the agreement of the parties to the contract on the time of payment. The author agrees with this view. If the "back-to-back" contract terms are understood as the conditional terms and term terms stipulated in Articles 59 and 160 of the Civil Code, then the "back-to-back" contract terms stipulated in the subcontract have not yet taken effect before the attached conditions are fulfilled or the term expires. At this time, the construction enterprise cannot oppose the payment request of the sub-supplier according to the "back-to-back" contract terms, obviously contrary to the original intention of the construction enterprise to enter into "back-to-back" contract terms. "The 'back-to-back' clause, as a clause in the subcontract, is clearly not an 'attached condition' of the subcontract as a whole, and does not affect the validity of the subcontract as a whole, whether or not the owner makes the corresponding payment". Therefore, the "back-to-back" contract clause is neither conditional nor a term clause, it is only the agreement of the parties to the contract to pay, is the construction enterprise in order to reduce or exempt itself from liability for breach of contract to develop a risk-sharing clause. 3. the validity of "back-to-back" contract terms between construction enterprises and sub-suppliers As for the validity of the "back-to-back" contract terms, currently only the "Beijing Higher People's Court's Answers to Several Difficult Questions about the Trial of Construction Contract Dispute Cases" (Jinggao Fa [2012] No. 245) affirms the validity of the "back-to-back" contract terms. Article 22 of the "Answers" stipulates: "The subcontract stipulates that after the settlement between the general contractor and the employer and the employer pay the project payment, if the general contractor then pays the subcontractor for the work, the agreement is valid. If the subcontractor is unable to obtain the project funds in time due to the delay in settlement or delay in exercising its due claims, the subcontractor shall support the subcontractor's request for the general contractor to pay the outstanding project funds. The general contractor bears the burden of proof for the settlement between it and the contractor and the fact that the contractor has paid for the work". However, there are different views on the validity of "back-to-back" contract clauses in judicial practice. (I) analysis of the terms of the "back-to-back" contract itself. 1, hold the view that its effectiveness is affirmed. (1) The terms of the "back-to-back" contract are in line with the principle of party autonomy and do not violate the mandatory provisions of the law. The parties enter into a contract with their true intentions, as long as they do not violate the mandatory provisions of laws and regulations and shall be valid. In the case of Dan Min Yi Zhong Zi No. 00442 of the Intermediate People's Court of Dandong City, Liaoning Province (2015), the court held: "The subcontract between the appellant China Metallurgical Geological Exploration Company and the appellee China Metallurgical Shen Exploration Company stipulates that the general contractor will pay the project fund to the subcontractor after the general contractor and the employer have settled the project fund and the employer has paid the project fund. The content of this clause does not violate the mandatory provisions of the law, It is the consensus of both parties' judgment on the risk, according to the agreement made by the well-known industry rules and construction habits of the construction market, this clause reflects the autonomy of the parties, conforms to the principle of voluntary equality in civil law, and should be a valid clause." (2) In a "buyer's market" environment, the existence of "back-to-back" contract terms is reasonable. In the case of Sanmin Zhongzi No. 199 (2014) of the Intermediate People's Court of Sanmenxia City, Henan Province, the court held: "In the current construction market environment where the construction market is in an absolute buyer's market, the owners are large, and the phenomenon of owners defaulting on the project price is becoming more and more common, in order to transfer the risk that the owners cannot pay, construction enterprises set up clauses in subcontracts with' the premise of owner payment', usually called back clauses, the clause has a certain rationality and legality, so the agreement is valid." In Beijing Haidian District People's Court (2019) Beijing 0108 Minchu No. 17584 case, the court also held that "Article 6, paragraph 3 of the subcontract involved stipulates that' if the owner unit delays the payment time to Party A, Party A will postpone the payment to Party B '. This agreement is to transfer the risk that the general contractor cannot pay the owner in the current market environment where the construction market is in the buyer's market and the owner defaults on the project payment, however, the clause of' presupposes payment by the owner' is set in the subcontract, which is usually called" back-to-back "clause. This clause has certain rationality and legality, so the agreement is valid. However, if the subcontractor fails to obtain the project payment in time due to the delay in settlement or delay in exercising its due creditor's rights, the subcontractor requires the subcontractor to pay the overdue project payment, it shall be supported." (3) The terms of the "back-to-back" contract are in line with the trading habits and the principle of good faith and should be considered legal and valid. In the Jinan Intermediate People's Court (2014) Jimin Wuzong Zi No. 182 case, the court held: "The back-to-back clause agreed by both parties reflects from the side that Chongqing Zhixiang Company agrees to Shandong Road and Bridge Company to pay the project payment to Chongqing Zhixiang Company after receiving the project payment from the owner for the subcontracted project. From the point of view of trading habits and the principle of good faith, Shandong Road and Bridge Company applies to the owner for payment of the project funds period by period according to the project progress and the quantities completed by each subcontractor. The supervision unit issues the payment certificate after examination. The owner allocates the project funds to Shandong Road and Bridge Company according to the payment certificate, and Shandong Road and Bridge Company pays the project funds to the relevant subcontractors according to the payment certificate." 2. Hold the view that negates its effectiveness "Back-to-back" contract terms are the "buyer's market" in which construction companies take advantage of their dominant position,

2023-03-23

Civil and Commercial Perspective... The legal effect of the will.

Recently, the author received a number of consultations on the legal effect of the will. Some consultants lack the elements of the will, and some cannot obtain the estate according to the will for other reasons. So, how can the testator write a legal and valid will, so that their wishes can be realized? The author intends to combine a specific case to analyze. Brief of the case Zhang and Zhao got married in 1970. After their marriage, they had a very good relationship and gave birth to their second sons Zhang and Zhang. Zhao died of illness in 2000. Zhang was too sad. Later, his youngest son Zhang reassured him and suggested that he find another wife. Later Zhang registered for marriage with Luan, 20 years younger than himself, in early 2001 and gave birth to a daughter Zhang moujiao at the end of 2001. Because of his love for his little daughter and his current wife, Zhang handed over most of his property to his current wife, but he felt ashamed of his two sons. On October 21, 2021, he wrote a will and promised that his pre-marital property would be inherited by his two sons in a hundred years, and then handed the will to his younger son for safekeeping. Zhang died on December 23, 2022, but Zhang transferred the property to Luan before he died. Zhang Mouhua called for advice: Now that the house has been transferred to Luan, can the two brothers get the house according to their father's will? legal analysis 1, will is the will before life according to their own meaning of the property disposition of his death, the will is a unilateral, to-style, civil legal act. From the perspective of civil legal acts, a legal and valid will needs to meet the following conditions at the same time:(1) the actor has the corresponding civil capacity;(2) the meaning is true;(3) it does not violate the mandatory provisions of laws and administrative regulations. 2. A valid self-written will should meet the following elements: (1) The entire contents of the will are written by the testator, self-written will can neither be written by others, nor can be printed with a printer, can only be written by the testator himself with a pen to record its meaning. The whole content here refers to the whole writing of the will, including the main part of the will on how the estate is handled, as well as the will's signature and the year, month and day indicated, which must be written by the will. That is, all the fonts of the will are required to be written by the testator himself, which is the most important formal element of the self-written will. (2) A self-written will shall be signed by the testator. After the will is written, the testator must also write his name at the end of the will. (3) The self-written will shall be indicated by the testator by the year, month and day. It should be noted that this article requires the visionary to indicate "year, month, and day", not just the date. 3. The property involved in the will must be lawfully existing. the author's point of view 1. Inheritance is the property left over from the death of a citizen, and it is the object of the legal relationship of inheritance, that is, the subject of the right of inheritance. If the estate does not exist, the legal relationship of inheritance cannot be established. Only the property left undisposed at the time of the decedent's death is an estate, and the property that the decedent has disposed of before the inheritance begins is not an estate. Specifically in this case, because the estate no longer exists, it does not belong to the scope of the estate from a formal point of view. 2, but specific to the case, Zhang can call the property file to see if the property transfer is in line with the law? Transfer to Luan is a gift or sale? Zhang has the capacity for civil conduct? If Zhang has no capacity for civil conduct when disposing of the property, the disposition is invalid, Zhang can get the property according to the will. The author reminds 1, self-written will must require me to write. The so-called "self-writing" means writing by oneself, which must be written by oneself. The signature and date from the first part of the "will" to the place of deposit should be written by oneself. 2. The testator is not a person with limited civil capacity. In judicial practice, many elderly people suffer from Alzheimer's disease, stroke, brain atrophy and other diseases in their later years and are unable to live normally or even express their wishes normally. If it is shown that they are indeed persons with no capacity for civil conduct or persons with limited capacity for civil conduct, then The will made by him is invalid. 3. The property involved in the will must be real, is the property legally occupied by the will. 4. Guarantee that the will held is the last will. According to the third paragraph of Article 142 of the Civil Code, if there are several wills, the contents of which conflict, the last will shall prevail. 5, the true care of the testator, life filial piety, otherwise, the testator has the right to make a will or disposition of property. To sum up: in this case, although Zhang Mou Xin and Zhang Mou Hua hold Zhang Mou's will, but because Zhang Mou has already disposed of the property involved in the will, if the disposition is legal, Zhang Mou Xin and Zhang Mou Hua have no right to obtain the property according to the will. Legal basis Article 143 of the the People's Republic of China Civil Code: Civil legal acts that meet the following conditions are valid:(1) the actor has the corresponding capacity for civil conduct;(2) the meaning is true;(3) it does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs. Article 1143 of the the People's Republic of China Civil Code: A will made by a person without capacity for civil conduct or a person with limited capacity for civil conduct shall be null and void. A will must express the true meaning of the testator, and a will made by fraud or coercion is invalid. A forged will is invalid. If the will is tampered with, the tampered content is invalid. Article 1134 of the the People's Republic of China Civil Code: The self-written will is written and signed by the testator, indicating the year, month and month. 4. Article 28 of the Judicial Interpretation (I) of the Succession Code of the Civil Code of the Supreme People's Court: The testator must have full civil capacity when making a will. A will made by a person with no capacity for civil conduct or a person with limited capacity for civil conduct is invalid even if he or she later has full capacity for civil conduct. If a testator has full civil capacity at the time of making a will and later becomes a person without civil capacity or a person with limited civil capacity, the validity of the will shall not be affected.

2023-03-10

Viewpoint | Exit of investment in "famous stocks and real bonds" under the background of state-owned capital supervision

2023-03-10

Real Estate Perspective | Based solely on the Collective Land Own Certificate, is the owner of the land contained in the certificate necessarily recognized as the owner of the land?

According to the Constitution, China's land is under public ownership, that is, it is divided into state ownership (I. e., all people) and collective ownership according to the main body of the owner. Article 12 of the Land Administration Law stipulates that the registration of land ownership and use rights shall be carried out in accordance with the laws and administrative regulations on real estate registration. The ownership and use right of land registered according to law shall be protected by law and shall not be infringed upon by any unit or individual. It can be seen that the "the People's Republic of China Collective Land Ownership Certificate" is a legal certificate for collective land owners to have the right to possess, benefit and dispose of collective land in accordance with the law. Then, in the lawsuit, can the people's court identify the land owner as the land owner simply based on the "Collective Land Ownership Certificate"? We will make a specific analysis through a case below. Relevant 1. Cases and Analysis [(2021) Lu xing Zai No. 67]] 1. Brief facts of the case Beilongwan Village is composed of six villagers' groups evolved from six production teams during the former people's commune. Since the land reform, the land used by the six groups has been fixed and unchanged. The implementation of household joint production contract in 1993 has not broken the land boundary of each group (former production team), but the farmers are the household joint production contract signed with Beilongwan Village Committee. Around 1992, the land ownership certificates of the six groups were handled under the name of Beilongwan Village Committee, and the certificates were renewed in 2012. Beilongwan Village is still the owner of the certificate. In 2016, Shandong Province implemented the "13th Five-Year Plan" for poverty alleviation and relocation. According to the Shandong Provincial Government Lu Zheng Zi [2016] No. 83 document, the relevant county (district) government is the main body and responsible body of the relocation work. Responsible for the implementation of relocation projects within the jurisdiction. On October 12, 2016, the Beilongwan Village Committee and the Laoyu Village Committee signed the Land Requisition Agreement for the Remote Poverty Alleviation and Relocation Project of Laoyu Village, which agreed that the Laoyu Village Committee would requisition the land of Beilongwan Village for the construction of the Laoyu Village. Relocation project for poverty alleviation. The land used by a villager group is within the scope of requisition as agreed in the agreement. After receiving the payment from the poverty alleviation and relocation working group, Beilongwan Village Committee only paid 2.6 million yuan to a villager group, and the balance was about 7.8 million yuan unpaid. The Beilongwan Village Committee said that the distribution plan had been approved by the villagers' representative meeting and a villagers' group did not approve it. 2, the court decision point of view. The Shandong Higher People's Court held that the focus of the dispute in this case is whether the prosecution of a villager group meets the statutory conditions for prosecution, and the focus of the review is whether the villager group has the qualifications of the plaintiff. Article 4 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Rural Collective Land stipulates that if the land use right holder or actual user is not satisfied with the administrative act of the administrative organ involving the use or actual use of collective land, he may file a lawsuit in his own name. In this case, a group of villagers is not the owner of the land ownership certificate, but it is the land user, but also the historical formation and evolution of the land user. In this regard, Beilongwan village committee to be recognized. According to the Opinions of the Ministry of Agriculture on Stabilizing and Improving the Contracting Relationship approved by the State Council on March 28, 1995, the collective farmers of group-level collective economic organizations (former production teams) can have collective land ownership, and when making land adjustments, it is strictly forbidden Forcibly change the relationship of land ownership, and the land already owned by the group-level collective economic organization (former production team) shall not be returned to the village. The Ministry of Land and Resources "Guotuzifa [2001] No. 359" document "Notice on Accelerating the Registration and Issuance of Collective Land Ownership in accordance with the Law" requires the department of land and resources to "determine the subject of collective land use rights in strict accordance with the provisions of the" Land Management Law ". It is clearly stipulated that" the boundaries of villagers' groups (original production teams) are not broken in any land household joint production contract, whether the contract is signed with the farmers in the name of the villagers' group or in the name of the village, the land should be confirmed to be collectively owned by the farmers of the villagers' group......" In this case, although the land ownership certificate is registered in the name of the Beilongwan Village Committee, the land involved in the certificate belongs to the actual ownership of the villagers' groups. Therefore, a certain villager group has an interest in the expropriation of this case, and a certain villager group has the qualification of the plaintiff and can file a lawsuit in this case in its own name. The original trial court only denied the land ownership of a certain villager group by holding the land ownership certificate with the Longwan Village Committee. It did not consider historical reasons and actual conditions. The facts were unclear and should be corrected. Ruled to revoke the 1. second instance administrative ruling, instructed the Jinan Railway Transport Court to continue the trial. 3. Analysis of referee rules (1) If the land-use right holder or the actual user is not satisfied with the administrative act of the administrative organ involving the use or actual use of the collective land, he may bring a lawsuit in his own name. (2) To determine the ownership of rural land, historical reasons and actual conditions should be considered. Although the land ownership certificate is registered in the name of the Beilongwan Village Committee, the land covered by the certificate belongs to the actual ownership of the village groups. Interpretation of 2. Law 1, establish the villagers' group litigation subject qualification. Article 3 of the Civil procedure Law stipulates that the provisions of this Law shall apply to the acceptance of civil lawsuits brought by citizens, legal persons, other organizations and between them because of property and personal relations. Article 48: Citizens, legal persons and other organizations may be parties to civil litigation. Legal persons shall be litigated by their legal representatives. Other organizations are litigated by their principal leaders. Article 11 of the Land Management Law stipulates that if the land collectively owned by farmers belongs to the collective ownership of the village farmers according to law, it shall be operated and managed by the village collective economic organization or the villagers' committee; if it has been collectively owned by farmers who have belonged to two or more rural collective economic organizations in the village, it shall be operated and managed by the rural collective economic organizations or villagers' groups in the village; From the perspective of judicial practice, in the spirit of the 2006 Supreme People's Court's ''Reply on How to Exercise the Litigation Rights of Villagers Group'', the villager group can be the subject of civil litigation. When the legitimate rights and interests of the village group are infringed by others, the villager group should use itself. A lawsuit is filed in the name of the villager group, and the villager group leader is the main person in charge. To sum up, the author believes that the villagers' group not only has certain property, but also has the right to operate and manage its own property by law. Therefore, the villagers' group belongs to the category of "other organizations" stipulated in Article 49 of the civil procedure law. 2, to determine the ownership of rural land, should consider historical reasons and the actual situation, comprehensive analysis to determine. In the historical evolution of China's rural collective economic organizations, there are mainly three periods: first, the period of cooperation, there are primary and high-level cooperatives; second, the period of people's communes, there are production teams, production brigades and communes; third, the period of economic cooperatives, after the rural reform abolished the people's communes and established the rural system, The original people's communes, production brigades and production teams were changed to townships, villages and villagers' groups. After the implementation of the two-tier management system based on the joint production contract responsibility system in rural areas, the villagers' group still exists. The six villager groups in Beilongwan Village evolved from the original six production teams. The implementation of land household joint production contract did not break the boundaries of the original production teams. The farmer collectives of each villager group inherited the collective land ownership of the original production teams. Article 3, paragraph 3, of the Organic Law of villagers' Committees stipulates that villagers' committees may set up several villagers' groups according to their living conditions and collective land ownership. The Ministry of Land and Resources "Guotuzifa [2001] No. 359" document "Notice on Accelerating the Registration and Issuance of Collective Land Ownership in accordance with the Law" requires the department of land and resources to "determine the subject of collective land use rights in strict accordance with the provisions of the" Land Management Law ". It is clearly stipulated that" the boundaries of villagers' groups (original production teams) are not broken in any land household joint production contract, whether the contract is signed with the farmers in the name of the villagers' group or in the name of the village, the land should be confirmed to be collectively owned by the farmers of the villagers' group......" 3. The rural land ownership certificate issued by the administrative organ is not necessarily accepted as valid evidence in the course of the court hearing. On the premise that there is sufficient evidence to overturn it, the people's court may directly reject the Land Ownership Certificate issued by the administrative organ. This breaks the shackles of judicial practice in judicial practice that "only administrative power must be adopted", and embodies the basic legal spirit of "taking facts as the basis and law as the criterion. Moreover, it also reduces the so-called "suspension of the trial of the case first, and the trial of the case will continue after the" land ownership certificate "is revoked. Administrative power confirmation documents, etc., ultimately belong to the category of evidence. Of course, the people's court has the right to screen and decide whether to adopt and use it. This is the power and duty of the trial judge granted by the law. In the current judicial practice, we are also pleased to see many excellent cases of "not only the top, not only the book. The Supreme People's Court (2019) Supreme Law Minzai No. 384 Civil Judgment embodies the following gist of the judgment: Supreme People's Court on Application<中华人民共和国民事诉讼法>的解释》第九十三条规定，已为人民法院发生法律效力的裁判所确认的事实，当事人无需举证证明。人民法院的生效裁判具有既判力，但该效力仅限于生效裁判的判项，对于“本院认为”部分的认定，如有证据可以推翻的，在后裁判不受在先裁判的影响，人民法院可以根据当事人举证情况做出独立认定。  </中华人民共和国民事诉讼法>

2023-03-06