Viewpoint... The defense point of the crime of fund-raising fraud.

There is a rumor in the market: "Success is a legendary entrepreneur, and failure is a fund-raising fraud criminal." The company's operation and project development are inseparable from the support of funds. Therefore, fund-raising has become a means for many people to expand their business scale. However, in practice, some illegal personnel illegally raise funds by means of fraud, illegally occupy the funds raised by others, and cause economic losses to others, which will constitute the crime of fund-raising fraud. 1. fund-raising fraud legal provisions Article 192 of the Criminal Law stipulates that for the purpose of illegal possession, anyone who uses fraudulent methods to illegally raise funds shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and a fine of not less than 20,000 yuan but not more than 200,000 yuan; if the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and a fine of not more than 50,000 yuan but not more than 500,000 yuan. The amount is particularly serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be sentenced to a fine of not less than 50,000 yuan but not more than 500,000 yuan or confiscation of property. Sentencing Rules for the Crime of 2. Fund-raising Fraud 1, the amount of individual fund-raising fraud in 100000 yuan or more is "large amount", the amount of unit fund-raising fraud in 500000 yuan or more is "large amount", should be filed for prosecution, sentenced to not more than five years of fixed-term imprisonment or criminal detention, and fined; 2, the amount of individual fund-raising fraud in 300000 yuan or more is "huge amount" (special circumstances are 240000), the amount of unit fund-raising fraud in 1.5 million yuan or more is "huge amount" (special circumstances are 1.2 million), sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and fined; 3. If the amount of individual fund-raising fraud is above 1 million yuan, it is "extremely large" (800000 in special circumstances), and if the amount of unit fund-raising fraud is above 5 million yuan, it is "extremely large" (4 million in special circumstances), and shall be sentenced to fixed-term imprisonment of more than 10 years or life imprisonment, and fined or confiscated property; Other (particularly) serious circumstances refer to:(1) impersonating a state organ or public welfare organization to carry out fund-raising fraud;(2) causing the victim to commit suicide, mental disorder or other serious consequences;(3) the victim is mainly a disabled person, the elderly or a person who is incapacitated. The crime of 3. fund-raising fraud must have three elements at the same time. (1) for the purpose of illegal possession; (2) the use of fraudulent methods; 3. Illegal fundraising. 4. Fundraising Fraud Defense Point The first category, not guilty point Innocence point one, the perpetrator does not have the purpose of illegal possession. The Supreme People's Court on the trial of illegal fund-raising criminal cases of the specific application of law. The interpretation of several issues (2022) stipulates that the use of fraudulent methods to illegally raise funds under one of the following circumstances can be regarded as "for the purpose of illegal possession": (I) the funds raised are not used for production and business operations or are used for production and business operations and the scale of the funds raised is obviously out of proportion, so that the funds raised cannot be returned; (II) wantonly squandering fund-raising funds, resulting in the non-return of the fund-raising funds; (III) evades hiding with fund-raising funds; (IV) use the funds raised for illegal and criminal activities; (V) to withdraw, transfer funds, conceal property and evade the return of funds; (VI) concealing or destroying accounts, or engaging in false bankruptcy or bankruptcy to evade the return of funds; The (VII) refuses to account for the whereabouts of the funds and evades the return of the funds; (VIII) other circumstances in which the purpose of illegal possession can be determined. The purpose of illegal possession in the crime of fund-raising fraud should be determined by distinguishing the circumstances. If part of the illegal fund-raising behavior of the perpetrator has the purpose of illegal possession, the fund-raising money involved in this part of the illegal fund-raising behavior shall be convicted and punished as the crime of fund-raising fraud; if some of the illegal fund-raising joint crime has the purpose of illegal possession, if the other actors have no common intention and behavior of illegally possessing the fund-raising money, the perpetrator with the purpose of illegal possession shall be convicted and punished for the crime of fund-raising fraud. Performance that does not have the purpose of illegal occupation: (I) evidence in the record does not reflect the perpetrator's profligacy or illegal transfer of property. (II), after the turnover of funds, the actor takes positive measures such as personal fund-raising, settlement with the relative or confirmation of the amount of debt can confirm that the subjective purpose of illegal possession is not. The funds absorbed by the (III) actor are mainly used in normal production and business activities, and do not belong to the situation with the purpose of illegal possession. Not guilty point 2. the perpetrator did not use the "fraud method" "Fraud method" refers to the means by which the perpetrator uses fictitious fund-raising purposes and uses false supporting documents and high rates of return as bait to defraud fund-raising funds. In practice, the methods often adopted by the actors are: fabricating enterprises or enterprise plans that do not actually exist, forging relevant approval documents, and defrauding the trust of the public in the name of breeding, planting, and producing products that can obtain high returns. I believe that its investment will be able to get several times and dozens of times the return, but in fact, most of these are illusory. Objectively, the specific manifestations of the lack of fraudulent means of fund-raising are: (I) there is no evidence to prove that the perpetrator has the intention to commit fraud. (II) actors objectively did not commit fraud and subjectively did not have the common intent to defraud clients of their investments. The perpetrator of the (III) did not use fraudulent means such as fictitious fund-raising purposes, using false supporting documents and high rates of return as bait to obtain fund-raising funds. The (IV) actor's absorption of funds is a function arranged by the performing unit and is unaware of the purpose and whereabouts of the unit after receiving the money. The acquittal point 3. did not implement the illegal absorption of public deposits. The actor's loan object is his comrades, colleagues, relatives, friends and other specific personnel, not the social unspecific object, not the public. The point of not guilty 4. the argument of insufficient evidence As the crime of fund-raising fraud will inevitably involve the problem of amount calculation and verification, the appraisal opinions in the form of "report" and "calculation and verification report" are the key evidence of the crime of fund-raising fraud. Starting from the appraisal opinions, the argument of insufficient evidence is often effective. Defense lawyers can cross-examine whether the appraisal opinions have the qualification of evidence and the strength of proof through the entrusting unit, appraisal unit, appraisal method, process, materials and other aspects in the process of making the appraisal opinions. The second category, misdemeanor defense point: does not constitute the crime of fund-raising fraud, constitutes the crime of illegally absorbing public deposits. To determine whether the defendant constitutes the crime of fund-raising fraud, we should focus on the "coming" and "going" of funds. If the perpetrator only participates in the absorption of funds according to the arrangement of the unit, but does not know the purpose and whereabouts of the unit after receiving the money, he shall be convicted and punished for the crime of illegally absorbing public deposits, and shall not be classified as the crime of fund-raising fraud; If the whereabouts of the fund-raising funds have not been identified, it cannot be determined that the perpetrator has the purpose of illegal possession of the fund-raising funds. Category III, light points If the crime is light, it constitutes a unit crime, not an individual crime, and shall be investigated for criminal responsibility for the unit crime; The point of misdemeanor 2. the amount of the crime. The amount of fund-raising fraud should be calculated based on the amount actually defrauded by the perpetrator; the part that has been returned before the incident should be deducted; but the advertising fees, intermediary fees, handling fees, rebates, or expenses paid by the perpetrator for the implementation of fund-raising fraud activities For bribes, gifts and other expenses, they shall not be deducted; the interest paid by the perpetrator for the implementation of fund-raising fraud activities shall be included in the amount of the fraud, except for the principal. The third point of the light crime: the argument of status and role. The crime of fund-raising fraud mostly occurs in the form of gangs. The status, role and amount of money involved in each unit should be treated differently. Those who are not involved in fund-raising fraud within the unit should not be dealt with criminally. For those who are involved in fund-raising fraud, but are not the main responsible personnel in the unit, they should start with the amount of money involved and the amount of money (whether from relatives and friends), etc, distinguish from the main responsible person to get a lighter punishment.

2023-05-29

The imperfect reform of the investment dispute settlement mechanism under the perspective of "the belt and road initiative".

Abstract: The geo-economic development of the "Belt and Road" has not only increased investment opportunities in the region, but also brought more investment disputes. However, ISDS, as a mechanism to resolve investment disputes between investors and host countries, has gradually shown problems such as low efficiency, high cost and lack of transparency. Up to now, there is no international consensus on ISDS reform, and each reform measure has its own advantages and disadvantages, and it is not perfect. When choosing the reform mode of ISDS mechanism, China should adhere to the gradual reform of ISDS, and actively build the "Belt and Road" international investment dispute settlement institution and promote the ADR mechanism to protect the investment interests of Chinese overseas investors. Key words: The Belt and Road, ISDS reform, international investment, arbitration 1. Introduction In 2013, President Xi Jinping proposed the great strategy of "One Belt One Road", which aims to promote the reform of the global economic and trade governance system and promote the construction of a community of human destiny. China adheres to the concept of "consultation, co-construction and sharing". In the past nine years, China has signed 205 cooperation documents with 171 countries and international organizations to jointly build the "Belt and Road. [1] The degree of investment cooperation between China and countries along the route is gradually deepening, but in the context of political, cultural and economic diversification of various countries, disputes between investors and host countries are inevitable. [2] In recent years, with the increase in the number of cases referred to the International Centre for Settlement of Investment Disputes (ICSID), the investor-State dispute settlement mechanism (ISDS) is time-consuming, costly and less transparent. [3] As a result, the academic community began to pay attention to the shortcomings exposed by the ISDS mechanism and put forward many different suggestions for improvement, such as Anthea Roberts that there are three main ways to reform the ISDS mechanism: gradual, systematic and paradigm reform [4]. That is, to continue to follow the ISDS mechanism and to build on it, such as the establishment of an appellate body [5]; to abandon the existing ISDS in favor of an investment court or to abolish the ISDS mechanism altogether, thereby turning to the domestic judicial system. [6] In addition, the establishment of the "Belt and Road" international investment dispute settlement institution and specialized mediation institutions are conducive to the settlement of international investment disputes. However, each reform measure is imperfect, that is, it cannot meet the needs of all countries along the "Belt and Road". Therefore, it is the best policy to learn from all imperfect options and gradually innovate the international investment dispute settlement mechanism. This paper intends to start from the dilemma faced by ISDS, first of all, the analysis of the current ISDS mechanism of various shortcomings, such as low transparency, arbitrator impartiality can not be guaranteed. Secondly, based on the background of the "Belt and Road" and combined with the characteristics of the "Belt and Road" investment risk, the impact of the mainstream ISDS reform on the "Belt and Road" strategy is further discussed. Finally, from the perspective of China, this paper analyzes the imperfections of each reform mode, and puts forward some suggestions on the trade-off of the reform mode. Review of 2. ISDS Mechanism The main contradiction of international investment disputes is concentrated between investors and host countries, and the traditional dispute settlement mechanism between countries (such as WTO) is not enough to effectively solve the existing contradictions. The ISDS mechanism came into being in this context. (I) Brief Introduction of ISDS Mechanism ISDS refers to a way for investors to resolve investment disputes through arbitration in the belief that the host country has violated its obligations to protect the interests of investors in international investment agreements (IIAs) [7]. Investment disputes have existed since the beginning of people's ability to transport goods across borders. With the increase in international trade, the more economically developed countries are more likely to transfer their capital or goods to other countries, but the rise of nationalization movements in Latin America, Asia, Africa and other regions has made capital-exporting countries hesitate to continue to invest abroad without adequate legal guarantees [8]. For investors, in the absence of the ISDS mechanism, when the capital-importing country expropriates the assets of foreign investors, it is generally only through the domestic judicial or diplomatic relief of the host country. If the domestic court system of the host country is chosen to safeguard its own rights and interests, for the protection of domestic interests, the courts may not handle disputes in full accordance with the principle of fairness, which is not conducive to the protection of the interests of foreign investors [9]. Therefore, investors prefer to choose international arbitration to defend their rights and interests rather than domestic courts. [10] Under the framework of ISDS, investment disputes between investors and host countries can be arbitrated through an arbitral tribunal composed of non-host country nationals, a procedure that is more fair and effective [11]. The signing of the New York Convention in 1958 made foreign arbitral awards enforceable for signatory countries and promoted more investors to seek to defend their rights through arbitration. Germany and Pakistan signed a bilateral investment agreement (BIT) in 1959 to introduce ISDS clauses for the first time. After that, ICSID, an independent agency affiliated to the World Bank, and the United Nations Commission on International Trade Law (UNCITRAL) worked together to formulate ISDS rules and continuously put forward reform suggestions to reduce political interference in the settlement of investment disputes between investors and countries, thus making the ISDS mechanism more fair at the legal level [11]. Developing countries hope to help their economies develop through foreign investment, and foreign investors also open up the host country's market and make a profit in the process. The purpose of ISDS to protect the rights of foreign investors and promote international investment is consistent with the goal of mutual benefit for investors and countries [12], so an increasing number of bilateral and multilateral investment agreements, including the North American Free Trade Agreement (NAFTA), include ISDS provisions. Before the 1990s, IIAs hardly involved ISDS,[13] followed by a surge in foreign direct investment (FDI) and a rapid increase in the number of IIAs [14]. A total of 3360 IIAs have been signed by 2020 [15], and most of these BITs have adopted ISDS to resolve investment disputes [14]. The ISDS caseload has reached 1104 in 2020 [16]. (II) the defects of ISDS 1. Low transparency and lack of consistency in arbitral awards Although arbitration is an effective method to protect foreign investors from unfair treatment by domestic courts, and the high efficiency and confidentiality of the "final ruling" can protect "trade secrets", these two characteristics are the advantages of arbitration for justice, but it also brings troubles to the settlement of disputes between investors and the state. In the investment disputes between investors and countries, personal interests and public interests are inseparable. International investment arbitration has the characteristics of personal goods and is dominated by contracts and market forces, especially from the appointment of arbitrators. At the same time, international investment arbitration also has the characteristics of "public goods". The arbitration result should protect the public interest, because the arbitration content is closely related to the interests of citizens of a country [17], therefore, "trade secrets" should not have a central position in ISDS. Concerns about transparency reached a tipping point in 2007 when Bolivia submitted a withdrawal declaration to ICSID on the grounds of low transparency, followed by countries such as Ecuador, which also withdrew from ICSID [18]. In the ISDS mechanism, transparency is related to the disclosure of information, the notice of arbitration, the relevant procedural documents and their submission and final award, that is to say, ISDS has the disadvantages of not disclosing procedural documents, keeping the litigation process confidential, and making it difficult for citizens to know the arbitration information. [19] Although rules on transparency have been included in many IIAs, such as the EU's trade agreements with Singapore and other countries, the issue of transparency has been highlighted in the UNCITRAL Working Group III report, and there are ongoing attempts to reform how to improve transparency in ISDS [20], but with little effect. Low transparency not only affects the disclosure of information, but also reduces the predictability and consistency of arbitration results. There are many reasons for the lack of consistency in arbitral awards, such as the fact that arbitrations are based on different investment rules, the fact that BITs are vague and outdated, and the fact that different arbitral institutions may produce different results. However, transparency remains an important reason for the low predictability of the outcome of arbitration. In investment arbitration, the role of jurisprudence is significant. Although the award of ISDS is not binding on the subsequent arbitral tribunal, it is also the arbitrator's responsibility to maintain the stability of the decision. The arbitrator's inability to obtain the previous case in time makes it impossible for the arbitrator to hear the case with reference to the precedent when dealing with similar cases. In addition, the arbitrator will adopt different methods for the interpretation of the same clause, resulting in different or even opposite results. [21] 2, the cost of litigation is too high The cost of ISDS is divided into time cost and money cost. In 2014, Professor Daniel often made statistics on some cases of litigation. The average litigation time in the cases collected by Daniel often reached 48.9 months, and the average length of cases won by applicants was as high as 55 months. Especially in special circumstances, the litigation time exceeds 129 months, and the time cost is huge [22]. The cost of money can be broadly divided into the costs of the mediation phase, the costs of the arbitral tribunal, the fees of attorneys and the costs of compensation after the award. As early as 1960, Seidl-Hohenveldern argued that "international arbitration has advantages over a permanent foreign investment court, especially because it is less expensive and more attractive to foreign investors [23]." However, with the development of investment arbitration, the cost of arbitration has gradually increased. According to the report of the UNCITRAL Working Group III, the average cost of each party in an ISDS case is above $8 million and may exceed $30 million [24]. The expenses of the arbitration tribunal (mainly including the expenses paid to the arbitrators and the related expenses of the arbitration procedure) are one of the smaller expenses in the whole arbitration process. However, according to statistics, the expenses of the arbitration tribunal in NAFTA are between US $1 million and US $3 million, the expenses of the arbitration tribunal in ICSID cases are about US $1.04 million, and the UNCITRAL arbitration expenses are also US $1.4 million [14], which are not small expenses for investors. In addition, legal fees, expert witnesses and other costs are also quite expensive for both parties. Lack of impartiality of arbitrators ISDS arbitrations are ad hoc and, according to the ICSID rules on the composition of the arbitral tribunal, the arbitral tribunal is generally composed of three persons, one arbitrator appointed by one of the parties and the third arbitrator chosen by agreement or appointed by the arbitration center [25]. ISDS arbitration inherits international commercial arbitration, arbitrators are different from domestic court judges, on the one hand, they are not obliged to uphold the constitution and laws of the host country, so many scholars worry that arbitration will give foreign investors greater rights to challenge the public interest of the host country and even endanger national security. On the other hand, most of the judges of the courts are life-long or long-term, but many of the arbitrators in ISDS arbitral tribunals are lawyers, and the parties are required to pay them high arbitration fees. Arbitrators will inevitably be more attentive to their "employers" after accepting their appointments, thus maintaining long-term business [11]. In addition, the arbitrator's fee is more than $600 per hour, in which case the arbitrator will not immediately dismiss the case if it does not meet the arbitration criteria [26]. At the same time, due to the private nature of arbitration, arbitrators do not have to be as accountable to the public as judges, which poses a threat to the protection of the public interest of the host country. 4. Other defects Mediation is an important part in both court litigation and arbitration, which was originally an effective way to make up for the inefficiency of arbitration and save arbitration costs. However, according to ICSID data, a total of 11 cases were closed through mediation by 2021, which shows that mediation is less used in practice [27]. In addition, ISDS lacks an appeal mechanism and currently only allows for procedural review of arbitration under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington Convention), without a substantive review of the correctness and consistency of the outcome of the arbitration. 3. the Diversified Reform of the International Investment Dispute Settlement Mechanism of the Belt and Road Initiative For investors, the construction of a diversified investment dispute settlement mechanism can create the possibility for them to choose an optimal way in a variety of investment dispute settlement mechanisms in combination with the actual situation of the case, so as to resolve investment disputes peacefully, fairly and efficiently. For China, under the background of the "Belt and Road", insisting on promoting the development of a diversified investment dispute settlement mechanism can further protect national interests while escorting domestic investors. (I) advances ICSID reform In July 2019, China submitted to the UNCITRAL Working Group III the "China Proposal Document on the Reform of the Investor-State Dispute Settlement Mechanism", stating China's position. China believes: "Although the ISDS mechanism has problems such as lack of error correction mechanism, lack of stability and predictability, the investor-state investment dispute settlement mechanism is still an important solution to related problems, and it should be actively improved through reforms to enhance the parties' confidence in the mechanism." [28] In the absence of the establishment of a dedicated "Belt and Road" investment dispute settlement body, the gradual reform of ICSID will help to resolve investment disputes in China in the context of the "Belt and Road" strategy and lay the foundation for the establishment of a dedicated dispute settlement body in the future. 1. Establishment of an arbitration appellate body Beginning in the 1950 s, ISDS arbitration results gradually favored foreign investors. The State is obliged to balance the interests of foreign investors and the State, and excessive protection of investors is contrary to the principle of fairness [29]. The public law nature of investment disputes distinguishes them from commercial arbitration, so the characteristics of "final arbitration" cannot be adapted to investment arbitration. Commercial arbitration meets the requirements of both parties to arbitration for efficiency and protection of trade secrets, but in investment disputes between investors and countries, the interests of investors and the interests of the host country need to be protected equally, and even for the sake of protecting human health and the world environment, the public interest should be protected. Based on this, the establishment of the ICSID Appellate Body is conducive to balancing the interests of the parties. The idea of establishing an arbitration appellate body was proposed by the ICSID secretariat as early as 2004. UNCITRAL Working Group III proposed a variety of proposals for the operation of the Appellate Body, including the scope of review of appeals, the circumstances in which appeals may be made, the effectiveness of appeals, and the time frame [30]. The model of WTO Appellate Body can be used for reference when designing ICSID Appellate Body. For example, the Appellate Body consists of three or seven persons and separates the first-instance arbitrators from the Appellate Body staff. There is a strict time limit of 12 months from the filing of an appeal to the decision. The scope of the appellate review also does not have to re-examine the whole case, only "errors of law" and obvious errors of fact. At the same time, the role of the ICSID secretariat is an important part of ensuring consistency in ICSID dispute settlement procedures and outcomes [31]. Increased transparency of ICSID As discussed above, the high privacy of international investment arbitration can lead to a reduction in the consistency and predictability of arbitration, and therefore, since the revision of the ICSID Arbitration Rules in 2006, it has been proposed.

2023-05-23

Point of view... Research on the termination or termination of labor contracts in bankruptcy proceedings.

Introduction The entry of an enterprise into different bankruptcy proceedings (including liquidation, reorganization and reconciliation) will have different effects on the performance, termination or termination of the labor contract. Declared bankruptcy, labor contract termination; bankruptcy reorganization or reconciliation, labor contract can be terminated. However, whether the labor contract is naturally terminated or terminated, or terminated or terminated by notice (or agreement), the current law does not make clear provisions, the administrator in practice also has different practices. This paper intends to sort out the legal basis, time node, way of termination or termination of labor contract in different bankruptcy proceedings, and the arrangement of relevant rights and obligations, in order to provide reference for the administrator. Dissolution or Termination of Labor Contract in 1. Bankruptcy Liquidation Dissolution of labor contract before (I) bankruptcy declaration After the enterprise enters the bankruptcy liquidation procedure, some administrators notify the employees in writing to terminate the labor contract on the basis of the time when the court accepts the bankruptcy application; some administrators notify the employees in writing to terminate the labor contract on the basis of the time when the enterprise stops business after entering the bankruptcy liquidation procedure; some administrators notify the employees in writing to terminate the labor contract after investigating and understanding the basic situation of the employees of the enterprise; Some administrators, after the enterprise enters the bankruptcy liquidation procedure, negotiate with the employee to terminate the labor contract. Termination of labor contract after declaration of (II) bankruptcy After the enterprise is declared bankrupt by the people's court, some managers think that the labor contract will be terminated naturally on the day when the ruling is declared bankrupt, and there is no need to notify the employees in writing; some managers think that the labor contract will be terminated on the day when the ruling is declared bankrupt, but it is necessary to notify the employees in writing of the termination of the labor contract; some managers think that after the ruling is declared bankrupt, it is necessary to notify the employees in writing to terminate the labor contract. (III) Dissolution or Termination of Labor Contract Manager Practical Operation Suggestions 1, before the declaration of bankruptcy practical operation recommendations. (1) The base date for the termination of the labor contract. The law does not specify the benchmark date for the termination of labor contracts by enterprises in bankruptcy liquidation proceedings. Under the premise of maximizing the interests of creditors, the manager may, on the basis of factors such as whether the enterprise continues to operate, whether there is a possibility of liquidation to reorganization or settlement, and the understanding of the situation of employees, decide on the base date for the termination of the labor contract. (2) The manner in which the labor contract is terminated. First, negotiate the termination of the labor contract. According to the provisions of Article 36 of the Labor Contract Law, the labor contract shall be terminated through negotiation with the employees. Second, the enterprise unilaterally terminates the labor contract. If the enterprise and the employee cannot negotiate to terminate the labor contract, the enterprise may notify the employee in writing to terminate the labor contract in accordance with Article 19 (12) and (14) of the "Regulations on the Implementation of the Labor Contract Law. Before notifying the termination of the labor contract in writing, the enterprise shall notify the labor union of the reasons for the termination in advance, pay economic compensation to the employees, issue a certificate of termination of the labor contract, and go through the procedures for the transfer of archives and social insurance relations. Third, economic layoffs. According to Item (II) of the first paragraph of Article 41 of the Labor Contract Law, if an enterprise unilaterally reduces more than 20 employees or reduces less than 20 employees but accounts for more than 10% of the total number of employees of the enterprise, it shall explain the situation to the trade union or all employees 30 days in advance, and after listening to the opinions of the trade union or employees, the reduction plan may be reported to the labor administrative department, The labor contract can be terminated through negotiation or unilaterally. 2, after the declaration of bankruptcy of the practical operation recommendations. (1) Notify the termination of the labor contract in writing. The view that the labor contract is terminated naturally after the declaration of bankruptcy is not in line with the actual situation that the administrator needs the cooperation of the employees to manage the property and business affairs of the enterprise, and it is also easy to dispute with the employees about the termination of the labor contract. The termination of the labor contract after the declaration of bankruptcy should be understood as the legal cause of the termination of the labor contract. The administrator shall notify the employee in writing to terminate the labor contract on this ground, or enter into an agreement with the employee to terminate the labor contract, issue a certificate of termination of the labor contract to the employee, pay economic compensation, handle the handover of work and transfer of social security file relationship. According to Professor Wang Xinxin of the School of Law of Renmin University of China [1], there are cases in which enterprises continue to operate in bankruptcy liquidation, reconciliation or reorganization proceedings. With the permission of the people's court or the resolution of the creditors' meeting, if the enterprise needs to continue to operate, the declaration of bankruptcy means the natural termination of the labor contract, and it is obviously not feasible for the worker to leave without asking whether to continue to operate or not. It is more feasible to regard the declaration of bankruptcy as one of the statutory reasons for terminating the labor contract. When to terminate the labor contract depends on when the administrator handles the relevant procedures for terminating the labor contract with the laborer after the legal cause occurs. (2) The date on which the bankruptcy ruling is declared shall be the date of termination of the labor contract. In practice, there is a dispute that the termination date of the labor contract is the date of the ruling, the date of service of the ruling, and the date of service of the notice of termination of the labor contract. Taking "Item (IV) of Article 44 of the Labor Contract Law" as the key word, 19 judgment documents of the Intermediate People's Court were retrieved from the Weike Advance Judgment Document Database,(2020) Lu 11 Civil Judgment No. 394 of the People's Republic of China and most other judgment documents held that the labor contract was terminated on the date of the civil ruling declaring bankruptcy;(2018) A few judgment documents, such as Lu 17 Min Zhong No. 2209 Civil Judgment, held that the labor contract was terminated on the date of service of the civil order declaring bankruptcy. The labor contract shall be terminated on the date on which the notice of termination is deemed to have arrived without the judgment document. Document No. 36 of the "People's Court Bankruptcy Procedure Legal Document Style (Trial)" issued by the Supreme People's Court stipulates that the civil ruling for the declaration of enterprise bankruptcy shall take effect from now on. After the enterprise is declared bankrupt, the time node of the termination of the labor contract is the date on which the civil ruling of bankruptcy is made. In summary, after the enterprise is declared bankrupt by the people's court, the administrator shall promptly notify the employees in writing of the termination of the labor contract, and the labor contract shall be terminated from the date of the decision to declare bankruptcy. Dissolution of Labor Contract in 2. Bankruptcy Reorganization (I) Bankruptcy Reorganization Model and Labor Contract Dissolution 1. Surviving reorganization and whether the labor contract is terminated Professor Wang Xinxin believes that the debt burden should be solved by means of debt relief, deferred settlement and debt-to-equity swap, supplemented by the improvement of corporate governance structure and management, the reduction or increase of registered capital, and even the transformation of business or the replacement of assets, so as to achieve the purpose of enterprise reconstruction and regeneration. Its iconic feature is to maintain the legal personality of the original enterprise and reorganize within the shell of the original enterprise, although the shareholders of the enterprise may change [2]. (1) Keep the labor contract. On September 11, 2018, Company A entered bankruptcy reorganization proceedings. During the reorganization period, the manager did not terminate the labor contract with 80 employees on the basis of "continuing to operate and retaining the necessary employee reserves in case of starting production at any time. On June 3, 2019, eight companies, including Company A, entered into substantive consolidation and reorganization proceedings. On September 30, 2020, the Bankruptcy Court ruled to approve the substantial merger reorganization plan and terminate the bankruptcy reorganization proceedings of eight companies. During the implementation of the reorganization plan, Company A terminated the labor contract with all employees [3]. According to the purpose of the reorganization and the requirements of the reorganization plan, Company A retained the labor contract with the employees during the reorganization period, and the labor contract was completely terminated during the implementation of the reorganization plan. (2) termination of the labor contract. On November 9, 2017, Company B entered into bankruptcy reorganization proceedings. During the reorganization, the manager of Company B formulated the employee placement plan in accordance with Article 41 of the Labor Contract Law, and decided to terminate the labor contract with all employees from June 1, 2018 [4]. According to the purpose of reorganization, Company B terminates the labor contract with all employees during the reorganization. 2, liquidation reorganization and labor contract is terminated. Liquidation reorganization, the theoretical and practical circles have not yet had a precise meaning. According to some law firms [5], liquidation reorganization is the auction, distribution, etc. of the debtor's property by reference to liquidation proceedings in the reorganization of an insolvent enterprise, without conversion to liquidation proceedings; or, the liquidation of the debtor's property as part of the reorganization plan. The liquidation of the debtor's property does not necessarily lead to the extinction or non-extinction of the business entity. According to some law firms [6], liquidation reorganization is to refer to the bankruptcy liquidation procedure to obtain the ordinary debt settlement rate, and on this basis, to introduce strategic investors, eliminate the excess part, to achieve the rebirth of the enterprise. The efficiency value of liquidation reorganization and the advantages of the rescue function of reorganization proceedings, the disposal of the debtor's assets to realize the settlement of claims, and the retention of the debtor's corporate legal personality. (1) Keep the labor contract. On December 29, 2016, the People's Court of Shanghai Pudong New Area issued (2016) Shanghai 0115 Civil Ruling No. 7-8, approving the reorganization plan of Company C and terminating the reorganization procedure. The reorganization plan stipulates that Company C will dispose of the old main business assets as a whole by means of liquidation reorganization, retain the new manufacturing business and production service business, and the reorganization entity will still survive [7]. During the implementation of the reorganization plan, the reorganization entity continued to operate new manufacturing business and production service business, and retained labor contracts with some employees. On September 20, 2022, the People's Court of Rugao City, Jiangsu Province issued a civil ruling (2020) Su 0682 Po No. 20 and approved the liquidation reorganization plan of Ding Company. The reorganization plan stipulates that Ding's assets are divided into reorganization assets and disposal assets, and the reorganization assets are separated from the disposal assets and the company's debts. After evaluation, the restructured assets are disposed of through online bidding, and the one with the highest bid price is the restructured investor. After the reorganization investor pays the auction price to the manager, the transferee transfers 100 per cent of the shares of the company to form a restructured new company. The restructuring investor and the new company shall not be liable for the debts of the company, and the restructuring investor shall be responsible for the property management and business affairs of the new company. The labor contracts between Ding and the six employees were retained until the auction of the restructured assets was completed [8]. According to the purpose of reorganization and the requirements of the reorganization plan, during the reorganization period and the implementation of the reorganization plan, Company C and D retain or partially retain the labor contract with the employees. (2) termination of the labor contract. On August 8, 2022, the Intermediate People's Court of Ningde City, Fujian Province issued a civil ruling (2020) Min 09 Breaking No. 2 quater, approving the liquidation reorganization plan of Company E and terminating the reorganization procedure. The reorganization plan stipulates that the reorganization investor will provide funds to carry out liquidation reorganization of Company E. The nature and subject qualification of the company will remain unchanged. The reorganization investment funds will be used to pay bankruptcy expenses, common debts and pay off debts. The reorganization investor will obtain 100 of the equity of Company E and the actual control of corresponding assets (excluding monetary assets) in accordance with the reorganization plan approved by the court, and the debtor's liabilities will be stripped in accordance with the reorganization plan. During the implementation of the reorganization plan, negotiate with all employees to terminate the labor contract, pay off the wages owed and pay economic compensation [9]. In accordance with the purpose of the reorganization and the requirements of the reorganization plan, Company E retains the labor contract during the reorganization and terminates the labor contract during the implementation of the reorganization plan. 3, the sale of reorganization and labor contract is terminated. Sale reorganization, also known as business transfer reorganization, is to sell all or a major part of the debtor's dynamic business to others so that it can continue to operate and survive in the new enterprise, and to pay off creditors with the consideration of the transfer, that is, the continuing business value, and the liquidation income of the untransferred legacy property, that is, the liquidation value [10]. (1) Keep the labor contract. On July 5, 2021, the People's Court of Lengshuitan District, Yongzhou City, Hunan Province issued a civil ruling (2019) Hunan 1103 Breaking No. 2 bis, approving the company's equity sale reorganization plan. The reorganization plan stipulates that the overall assets of the company will be listed on the Ali bankruptcy assets auction platform with an estimated value of 30,508,365.06 yuan as the starting price. The auction proceeds will be used to pay the reorganization expenses and pay off all kinds of debts according to the provisions of the reorganization plan, and the reorganization investors will acquire 100 percent of the shares of the company. The nature of the company's legal person and the qualification of the market subject will remain unchanged, and all intangible assets such as production qualification, system certification and patents will be retained; the company's production is non-stop, the team is not scattered, the market is not lost, and it continues to operate [11]. In accordance with the purpose of the reorganization and the requirements of the reorganization plan, the company has retained the labor contract with the employees during the reorganization and the implementation of the reorganization plan. (2) termination of the labor contract. On March 20, 2019, the Intermediate People's Court of Liaoyuan City, Jilin Province issued a civil ruling (2018) Ji 04 Min Po No. 3-6, approving the asset sale reorganization plan of the company and terminating the reorganization procedure. The reorganization plan provides for the full settlement of the claims owed by GG to its employees, and the reorganization investor as a whole acquires all of GG's effective assets and receives all of its employees [12]. According to the purpose of the reorganization and the requirements of the reorganization plan, the company will terminate the labor contracts of all employees during the implementation of the reorganization plan, which will be accepted by the reorganization investor. 4, pre-reorganization and labor contract is terminated. Pre-reorganization means that in order to timely and effectively connect with judicial reorganization, when the relevant parties apply to the people's court for bankruptcy reorganization, they request the people's court for support on the grounds that the debtor's out-of-court reorganization can be realized in a short period of time. The people's court shall review the legality and feasibility of the relevant application plan, and agree that within the breaking application procedure, the relevant parties shall hire a professional intermediary agency or apply to the people's court to appoint a temporary administrator, A procedural mechanism for the people's courts to provide appropriate legal guidance, supervision and necessary judicial coordination [13]. (1) Keep the labor contract. On March 10, 2022, the People's Court of Changshu City, Jiangsu Province issued (2021) Su 0581's No. 6 and No. 121 Decisions to initiate pre-reorganization of Xin Company and Ren Company in accordance with the law. On September 8, 2022, the court issued (2022) Su 0581's civil rulings No. 64 and No. 65, holding that during the pre-reorganization period, the two companies had clearly intended investors and submitted a pre-reorganization plan. Although the secured creditor's rights group and the ordinary creditor's rights group did not pass the pre-reorganization plan, the two companies still had reorganization value. Therefore, the court ruled to accept the bankruptcy reorganization of Xin Company and Xin Company on October 19, 2022, the court made a civil ruling (2022) Su 0581 No. 64 and No. 65, ruling that the two companies merge and go bankrupt and reorganize. On February 22, 2023, the court issued (2022) Su 0581 Po No. 64 and No. 65 six civil rulings, ruling to approve the reorganization plan of the two companies and terminate the reorganization procedure. The pre-reorganization plan stipulates that after the interim administrator submits the pre-reorganization plan to the creditors for a vote, it applies to the court for a ruling to transfer to the reorganization procedure, and then formulates a draft reorganization plan on the basis of the pre-reorganization plan. After the draft reorganization plan is approved by the creditors' meeting and approved by the court ruling, the reorganization investor and investment amount are determined through online bidding. After the restructuring investor pays the consideration to the administrator, acquires 100 percent of the equity interest in the two companies and the corresponding corporate assets, retains the legal personality of the two companies, and the business

2023-05-22

Viewpoint... Criminal case of the crime of obstructing testimony caused by a villa-finally exempt from criminal punishment by discretionary non-prosecution.

Words The crime of obstructing testimony is not a common crime in the criminal field. It is a high incidence of joint crimes involving gangs and other socially harmful crimes. In this case, the crime was implicated in ordinary civil cases, from the civil court to the procuratorial organ, and from the procuratorial organ to the public security organ, and finally the public security organ filed the case for investigation. The main parties in this case have gone through judicial procedures such as civil trial, protest by procuratorial organs, criminal detention, bail pending trial, and several arraignments by judicial organs. It took more than three years (there was also force majeure) and finally in 2023, this spring, which came earlier than before, obtained the procuratorial organ's discretionary decision not to prosecute and was exempted from criminal punishment. The three parties involved in this case looked callous and mixed when they received the legal documents not to prosecute, as if their happy and excited heart had only existed for a moment and had been taken away by three years of suffering. After all, they were three families, the elderly in need of care and the children who had just entered the school gate. In the face of the sudden punishment, the defender of this wooden mood sincerely understood. Over the past three years, you and I have had mixed feelings. Fortunately, we came to the newspaper in early spring. We are willing to laugh in the bushes when the mountain flowers are in full bloom. Application of law Article 207 of the the People's Republic of China Criminal Law, [Crime of Obstructing Testimony] Whoever uses violence, threats, bribery, etc. to prevent a witness from testifying or instigate others to give false testimony shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. [crime of helping to destroy or forge evidence] whoever helps the party concerned to destroy or forge evidence, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Judicial personnel who commit the crimes mentioned in the preceding two paragraphs shall be given a heavier punishment. This case applies the constitutive elements of the crime of "(the party in the civil trial) instructing others to give false testimony" and the second paragraph "helping the party to forge evidence" in the first paragraph. Detailed explanation of the case At the beginning of 2016, the man Chen Mou and the woman Zhou Mou (both surnames and names in the article are pseudonyms) of the parties to the case went to court for marital disputes. The court found out the facts and confirmed that the relationship between Chen and Tuesday did break down. The marriage relationship was dissolved according to law. In the judgment, corresponding judgments were made on the child support and property division of the two, and the two divorced. After the judgment came into effect, the woman Zhou thought that the division of property involved in the divorce case was unfair, so she approached the man Chen several times and asked Chen to make up for his emotional loss and re-divide the property. Zhou asked for a new price division of Chen's villa, and made it clear that he had part of the economic rights and interests in Chen's villa, but the villa where Chen lived was Chen's pre-marital property, and the property rights had nothing to do with Zhou. Zhou said that the villa was indeed purchased by Chen before marriage, but after marriage, the two shared the loan and had an interest in the appreciation of the property, chen Mou said that after their marriage, they had been taking the loan by themselves. Zhou Mou had no right to claim the rights and interests of the villa, so far there was a stalemate. At this time, Chen's economic situation was not good, and he felt uneasy in the face of Zhou's every attempt to block the door, so he came up with countermeasures. One was to transfer the villa involved in the case to his female friend Pan in the name of selling. Second, Chen Mou found his friend Zhu Mou and asked Zhu Mou to contribute to Pan Mou, forming a flow of house purchase money, completing the house purchase contract and transferring the ownership. The third is to transfer the house money received back to Zhu in the name of returning the earlier loan. Chen, Pan, and Zhu signed two agreements. One is the "House Sales Contract" between Chen and Pan. Second, Chen returned to Zhu in the name of repayment of the "loan agreement", however, the "loan agreement" is not a loan to buy a house, but the early two people have business dealings, Chen had borrowed money from Zhu for business. According to this, complete a "story"-selling the house to pay off the debt. In mid -2016, Chen's ex-wife Zhou learned that the villa had been sold to Pan, and the money from the sale was used to repay Chen's business arrears to Zhu in the earlier years, and a complaint was filed in court. The court was asked to invalidate the "Housing Sales Contract" and the "Loan Agreement", and to find out that his ex-husband Chen, Pan and Zhu maliciously colluded to damage their legitimate rights and interests, but in the absence of direct evidence, both trials were unsuccessful. From then on to 2018, Zhou found the court several times to say that the judgment was unfair and asked the court to deal with it, and repeatedly found the procuratorate to ask the procuratorate to protest. During this period, Zhou provided the judicial organ with relevant evidence of the relationship between his ex husband Chen and the buyer Pan, and reflected the deep relationship between Chen and Zhu to the procuratorate, which finally made the procuratorial organ have reasonable doubts. The procuratorial organ found Chen, Pan and Zhu several times in accordance with the law to understand the situation, made inquiry records, and found clues. In 2019, the procuratorial organ held that the "housing sales contract" and "loan contract" of Chen, Pan and Zhu were untrue and forged, and made the two-level courts make a judgment on the basis of which they should protest, and the situation involved in the case was suspected of a criminal offence, which was immediately transferred to the public security organ for investigation of the crime of obstructing testimony. After the public security organ filed the case, Chen was detained for the crime of obstructing testimony, Pan was released on bail pending trial, and Zhu was taken criminal compulsory measures for the crime of helping to forge evidence. Defense opinion The defender accepted the defense entrustment to the main party Chen, and found the key points of the defense on the basis of a detailed understanding of the case, consulting a large number of materials such as civil case files, etc. The defender believed that the parties involved in the case did hinder the testimony, but their behavior Whether it has reached the level of severe criminal law and whether the criminal responsibility of the three parties should be investigated for the crime of obstructing testimony is debatable and discussed. For this reason, the defender communicated with the case handling personnel of the public security organs and procuratorial organs many times and submitted a written "defense opinion", which was finally recognized by the procuratorial organ after many twists and turns, prompting the procuratorial organ to make a discretionary decision not to prosecute in accordance with the law. it has achieved a high-quality and effective defense for the parties in this case. The defender of a criminal case is slightly different from the agent of a civil case. Criminal cases require the defender to have a detailed understanding of the origin of the provisions of the criminal law, the scope of application, the cases in judicial practice and the process of handling criminal cases by judicial organs, and to have a thorough understanding of the original intention, mode and consequences of the parties involved in the case, and in the first stage, the investigation stage has a preliminary legal judgment on the whole case. "Look at the back and forth flow between facts and norms" and find the most favorable defense point for the parties in the details of the case. The following defender has compiled excerpts from the "Defense Opinions" and a summary of the case into a document to record the case. According to the application search of the crime of obstructing testimony in the province in recent years, this crime is not a high-incidence crime. Taking our city as an example, the number of cases concluded is about 23, of which 22 occurred in the trial process of criminal cases. In the fields of provocation, intentional injury, and underworld crimes, there are almost no crimes of obstructing testimony in the purely civil field, which should be accidental in this case. The crime of obstructing testimony is stipulated in Article 207 of the Criminal Law, which belongs to one of the crimes of obstructing justice in Section 2 of the crime of obstructing social management order in Chapter 6 of the Criminal Law. The legal interest violated by this crime is judicial order. This crime is a criminal and dangerous crime, and the constituent elements of the crime state that "preventing witnesses from testifying by means of violence, threats, bribery, etc." and "instigating others to give false testimony" constitute this crime. The perpetrator's behavior must reach the serious degree of direct infringement of the judicial order before he can file a case for prosecution. In this case, there was no situation of "preventing witnesses from testifying by means of violence, threats, bribery, etc. The crime of obstructing testimony is one of the constituent elements "instigating others to give false testimony": "instigating" in the context of the interpretation is, directing and ordering. In judicial practice, there are two interpretations and views on "instigating others to perjure. 1. "Inciting others to give false testimony" means instigating others to give false testimony to judicial organs by means of violence, coercion, bribery or other illegal means equivalent to the above. This view holds that the perpetrator must have committed an illegal means of instigating perjury, and that the seriousness of the illegal means is equal to the degree of illegality of "violence, coercion and bribery", one of the constituent elements of the crime. 2. "Inciting others to give false testimony" means that the perpetrator must instruct others to provide false testimony to the judicial authorities. The key is to get others to provide forged evidence to the judiciary on their own initiative through the direction and command of the perpetrator. The application of the constituent elements of "instigating others to perjure. The investigative agency believes that the "House Sales Contract" and the "Loan Agreement" issued by the perpetrator Chen to the court are false, that is, they have constituted the constituent elements of "instigating others to give perjury" in the crime of obstructing testimony. It is particularly emphasized here that "instigating others to give false testimony" means that the perpetrator must instruct others to provide false evidence to the judicial authorities. The perpetrator Chen made false evidence himself, and asked Zhu or others to help in the process. In the end, Chen himself provided the false evidence to the court. In such a situation, it is not for the "other person" to give perjury to the court, so it can not be determined that Chen has the act of "instigating others to give perjury" and can not constitute the crime of obstructing testimony. The false evidence produced by the perpetrator himself is submitted to the court and the act of ordering others to give false testimony to the court are two completely different acts. The former is an illegal act and the latter is a criminal act. The legal consequences of different behaviors are different. In this case, it cannot be determined that this behavior is a criminal act because Chen submitted two false evidences to the court. This is a mechanical understanding of the crime of obstructing testimony. 1, Chen's disposal of real estate behavior. First of all, it must be clear that Chen is disposing of his own legally owned property. The property rights of the real estate sold by Chen are clear. From the perspective of the core value of house ownership, its disposal of the real estate does not involve any legal issues. Second, Zhou, the plaintiff in the civil case, did not make a claim on the property rights of the house, but only believed that she had jointly repaid the loan during the marriage with Chen, and claimed rights and interests in the value-added part of the house, while the value-added part of the house could not be equated with the ownership value of the house itself. From the perspective of ownership of the core value of the house alone, Chen has the right to dispose of the property. Even if Chen's disposition of the real estate is flawed and infringes on Zhou's rights and interests, Zhou can fully exercise the right of civil relief and advocate Chen's compensation. At the end of the day is the divorce property division due to the appreciation of the house and give it the corresponding compensation, and Chen Mou disposition of the property has nothing to do. Third, whether Chen Mou sold the house to Pan Mou is a real transaction and whether there are power defects belongs to the field of civil and commercial affairs, because the housing transaction has not been completed through litigation, and even if there is a false transaction, it has not infringed the judicial order. Even if Chen submitted the false transaction contract to the court, the court found that the problem could not be identified after examination, and the illegal act could be punished by judicial punishment. After all, Chen's disposition is his own property, did not rise to the height of crime. More importantly, there was no lawsuit when Chen disposed of his property, that is to say, Chen did not have the subjective purpose of giving false testimony to the court or ordering others to give false testimony. To sum up, the core point of this case is that Chen Mou disposed of his own legal property. Even if the disposition of the property infringes on Zhou's interests, it is completely possible to protect his rights and interests through civil litigation. Even if the real estate transaction is determined to be false, it will not reach the level of criminal accountability. 2, Chen and Zhu signed the "loan agreement" behavior. The defender believes that Chen and Zhu signed the "Loan Agreement" and submitted this agreement to the court as evidence of his property impairment, which is the core issue of this case. To recognize the core issues of Chen's crime of obstructing testimony in this case, we must judge the purpose, behavior, and results of Chen's signing of the "Loan Agreement" with Zhu in accordance with the law. First of all, the purpose of Chen and Zhu signed the "loan agreement" is to prove that their property impairment, to prove that their property impairment can be reduced in the divorce proceedings with Zhou. Such original intention and purpose, under the premise of presuming that the loan agreement is not true, should be characterized as malicious collusion in civil law to infringe upon the property rights and interests of Zhou, a third party. In civil law, there are a number of remedies for malicious collusion against the property rights of third parties, which are not repeated here. Even if the court finally finds that it is malicious collusion to infringe upon the property rights and interests of a third party, it may not recognize this evidence, and the illegal acts can be punished by means of fines, judicial detention and so on. Secondly, Chen and Zhu signed the "loan agreement", which is the key to determine whether the case is classified as the crime of obstructing testimony. As mentioned earlier, the key to "instigating others to give false testimony" lies in directing and ordering others to provide false and untrue evidence to the judicial organs. In this case, the loan agreement was issued by Chen and submitted to the court by himself. In the case that Zhu's signature in the agreement could not be identified, Chen could not direct and instruct Zhu to provide false evidence to the court. Even if Chen submitted a false "loan agreement", this agreement was provided by Chen himself, and there was no objective behavior of "directing and ordering" others. Because the agreement is neither to instruct Zhu to make, nor to instruct Zhu to submit it to the court, nor to let Zhu confirm the validity of the agreement through litigation. You can't just ask Chen to ask Zhu to sign a name on the "Loan Agreement", it is considered to be a criminal act of "instigating others to give perjury" in the crime of obstructing testimony. Instead, we should synthesize the whole case and recognize who made this agreement and whether it has reached the standard of responsibility for ordering others to provide perjury to the court. Chen's own act of submitting the loan agreement to the court cannot be regarded as a criminal act of "ordering others to give perjury. Even if Chen provided false "housing sales contract" and "loan agreement" as civil evidence in the civil trial, then the act of providing false evidence did not meet the standard of criminal law accountability. According to the principle of modesty of criminal law, even if the civil evidence in this case is found to be false, the trial court should deal with it according to the civil procedure law. According to the principle of legally prescribed punishment for a specified crime in the criminal law, whether this case constitutes an element of "violence, coercion, bribery and other methods to prevent witnesses from testifying or instigate others to give false testimony", and whether the result of the crime has reached the level of serious violation of judicial order, it needs to be carefully judged by judicial organs. After all, it is very rare to involve criminal crimes in civil cases, especially in cases caused by marital property in this case. Conclusion Ultimately, the case was concluded with a discretionary non-prosecution. For the parties concerned, it may not be a sparse result. After all, the long road of litigation is always so difficult. Besides, the three families have to be relieved after the case is closed. It is rare for criminal cases to be terminated at the stage of examination and prosecution, but this case is not the inevitable result of the "competition" between the prosecution and the defense, because no law can be a golden rule, and the right and wrong, black and white of any case are so complicated and confusing. Of course, this is not the accidental result of the Universiade. The discretion not to prosecute itself has already explained the hardships. The late senior director Wang Guangren once said that "to be a lawyer, to be a person first", between people, between lawyers and clients, with a heart of compassion and empathy, as a lawyer, for the sake of the case, for the sake of people often "the night is always hard to see, lonely clothes count cold stars", in which our awe of the law will have a warm return.

2023-05-17

Viewpoint... The construction of museum digital intellectual property management rules under the background of cultural digitization strategy.

2023-05-16

Viewpoint.........................................................................................................

Foreword A one-person limited liability company is a limited liability company with only one natural person shareholder or one legal person shareholder. In the general corporate personality mixed litigation, according to the principle of who advocates who gives evidence, the creditor bears the burden of proof to prove that the company's property is not independent, which constitutes the mixing of personality. Since a one-person limited liability company has only one shareholder and cannot establish a shareholders' meeting, all important business decisions only need to be decided by one shareholder, there is no supervision and checks and balances between shareholders, and it is more likely to be manipulated by shareholders, which harms the interests of the company and creditors. It is difficult for creditors to understand the internal operation of a one-person company. Therefore, in order to balance the interests of creditors and shareholders, China's "Company Law" requires shareholders to prove their innocence, otherwise, they will be jointly and severally liable. The manner in which 1. creditors claim their rights In judicial practice, there are two main ways in which creditors require the shareholders of a one-person limited liability company to be jointly and severally liable to the company: 1. When the creditor sues the case, he directly lists the shareholders of a one-person limited liability company as the defendant and requires them to bear joint and several liability for the company's debts. Article 63 of the the People's Republic of China Company Law: If the shareholders of a one-person limited liability company cannot prove that the company's property is independent of the shareholders' own property, they shall be jointly and severally liable for the debts of the company. 2. In the execution stage of the case, the creditor applies for the addition of a shareholder of a one-person limited liability company as the person to be executed, and requires him to bear joint and several liability for the company's debts. Article 20 of the Provisions of the Supreme People's Court on Several Issues Concerning the Alteration and Addition of Parties in Civil Enforcement (Fa Shi [2016] No. 21): As a one-person limited liability company subject to enforcement, the property is insufficient to pay off the debts determined by the effective legal documents, and the shareholder cannot prove that the company's property is independent of his own property, the people's court should support it. 2. the standard of proof of property independence for shareholders of a one-person company Article 62 of the the People's Republic of China Company Law stipulates that a one-person limited liability company shall prepare financial and accounting reports at the end of each fiscal year and shall be audited by an accounting firm. In accordance with the above-mentioned legal provisions, in order to prove the independence of the property, the shareholders of a one-person company may be required to submit to the court evidence such as the annual audit report and ancillary documents of the one-person company, all bank transactions between them and the company, transaction documents, and even special audit reports on the independence of the property. In terms of proof power, the annual audit report and the special audit report have the strongest proof power, but it is not easy to submit the report. The content and quality of the report still need to withstand torture: first, the audit report provided by it should cover the whole period of one shareholder's tenure; Second, the content of the audit report should reflect the property trend between shareholders and the company. Third, it can completely reflect the company's financial status such as assets and liabilities, there is no audit failure. In addition, the shareholders of one-person company also applied to the court for a special appraisal of the company's financial transactions, creditor's rights and debts, assets, etc. to prove the independence of property. Several situations in which 3. are at risk 1, shareholders can not provide audit reports, financial and accounting statements; 2. constant mixing of shareholder accounts, related company accounts and company accounts, mixing of official seals, multiple use of shareholder or related company accounts to collect payments and the aforementioned fund discrepancies cannot be reasonably explained in the audit report; 3, although the audit report is provided, but can not provide the original bookkeeping vouchers or bank details as supporting evidence; 4, did not prepare the daily audit report or financial accounting report, but in the case of temporary entrustment issued after the lawsuit; 5,...... 4. Supreme Court Cases and Judgment Views Judgment Rule 1: The special audit report commissioned by the people's court and the "Company Director Resolution Certificate" and "Independent Auditor Report" are mutually corroborated, which can prove that the personal property of the shareholders of a one-person company is independent of the company's property. Case 1: The Supreme People's Court held in the Civil Ruling Letter of Retrial Review and Trial Supervision of Objection between Fujian Gaode Engineering Construction Co., Ltd. and Hengfeng Property Management Co., Ltd. [(2020) Supreme Famin Shen No. 356] that "During the trial of this case, the court of first instance entrusted Changzhou Huabing Accounting Firm to conduct a special audit of Fengda Company according to the application of Hengfeng Company. After the audit, the accounting firm issued [2017] No. 51 special audit report to the court of first instance. After Gaode Company put forward relevant cross-examination opinions on [2017] No. 51 special audit report, the court of first instance requested Changzhou Huabang Accounting Firm to conduct a supplementary audit. After that, Changzhou Huachang Certified Public Accountants issued [2018] No. 073 special audit report to the People's Court. After Gaud Company put forward opinions on [2018] No. 073 special audit report that the financial account books on which the special audit report is based are incomplete and the financial account books have not been cross-examined, the court of first instance inquired with Changzhou Huabang Certified Public Accountants, and the auditors of Changzhou Huabang Certified Public Accountants responded to the cross-examination opinions put forward by Gaud Company. Gaud Company claims that the financial data on which the special audit report is based have not been cross-examined by the parties concerned, the relevant accounts are incomplete, and the audit signers have not participated in the audit work. However, the special audit report and the" Company Director Resolution Certificate "and" Independent Auditor Report "confirm each other, and the above objections raised by Gaud Company have not been proved by relevant evidence. Therefore, Gaud Company shall bear the legal consequences of failure to provide evidence. It is not improper for the original judgment to use the special audit report as the basis for determining the facts of the case." Rule 2: An audit report in which there is an audit failure does not prove the independence of a one-person company's property. Case 2: The Supreme People's Court held in the second-instance civil judgment [(2020) Supreme People's Court No. 1240] of Pang Hua and Shandong Dasheng Group Construction Engineering Co., Ltd. for the execution of objection, "In this case, although Pang Hua submitted the audit report of Huayang Company issued by the accounting firm and other evidence materials to prove the independence of the company's property, according to the facts found out in the second-instance of this court, the above audit report is not included in the balance sheet of Huayang Company for the execution of the debt that can be obtained through public inquiry, and there are obvious audit failures, which cannot be accepted according to law. After becoming a one-person limited company, Huayang Company, in violation of the provisions of Article 62 of the Company Law, failed to prepare financial and accounting reports at the end of each fiscal year and audited by an accounting firm. The occurrence of the above audit failure is sufficient to indicate that the company's financial management is chaotic and that Pang Hua, as the sole shareholder of the company, should bear the adverse consequences of the mixing of the company's property." Referee Rule 3: The annual audit report of a one-person limited liability company needs to be formed strictly at the end of each year, and the audit report formed during the litigation period rather than the normal year is not an objective and true reflection of the company's financial situation, and cannot prove that the company's property and shareholders' property are independent of each other. Case 3: Jiaozuo Wanhe Real Estate Co., Ltd. and Henan Baoyang Aluminum Co., Ltd. held in the civil ruling on retrial review and trial supervision of the execution objection ((2021) Supreme Famin Shen No. 1539) that "the court believes that: (2) the issue of whether the properties of Wanhe Real Estate Co., Ltd. and Zhongzhou Laurel Company are independent, and the annual report audit report submitted by Wanhe Real Estate Co., Ltd. in the original trial was formed during the litigation in this case, it is not a normal annual audit conducted by Wanhe Real Estate Company in accordance with Article 62 of the the People's Republic of China Company Law that" a one-person limited liability company shall prepare a financial and accounting report at the end of each fiscal year and shall be audited by an accounting firm. "it cannot objectively and truly reflect the financial situation of the company, and cannot prove that the properties of Wanhe Real Estate Company and Zhongzhou Laurel Company are independent of each other." Summary of 5. views Based on the above legal provisions and the case judgment point of view, we can know that the current judicial practice of our country to one-person limited liability company shareholders of the burden of proof of the distribution of heavy, and for one-person limited liability company shareholders to prove property independence, not only from the form to find out whether to prepare the financial audit report in line with the time requirements, but also from the substance to judge whether the content of the financial audit report is comprehensive, objective and true.

2023-05-15

Viewpoint | The first meeting of the 20th Central Finance and Economics Committee proposed the profound meaning of building a modern industrial system

On May 5, 023, the 20th Central Finance and Economics Committee held its first meeting. This meeting was of far-reaching significance and was also the first appearance of the current Central Finance and Economics Committee. The meeting emphasized speeding up the construction of a modern industrial system supported by the real economy, which is related to our winning strategic initiative in future development and international competition. Why should we emphasize the "modern industrial system" supported by the "real economy"? What is the significance? 1. focus on the real economy to prevent delinquency From the perspective of the external environment, there are two kinds of backflows in the global wave of "manufacturing return", one is the "return" of high-end manufacturing to developed countries, and the other is the "flow" of low-and middle-end manufacturing into low-and middle-income countries, forming a "two-way squeeze" on China ". This requires us to continue to pay attention to the real economy and improve the industrial chain. From the perspective of internal state, there is a situation of "delinquency" in the process of China's rapid economic growth, and there are also two states. One state is that financial institutions deviate from real enterprises, and a large number of enterprises, especially small and medium-sized enterprises, have difficulties in financing, and financial assets are more Use securities and other financial instruments to flow; the other state is that entity enterprises with sufficient funds also use a large amount of funds for financial products to profit, there is a tendency towards the financialization of real enterprises. The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (2020 Amendment) specifically stipulates that "lenders who have not obtained the qualification to lend in accordance with the law provide loans to unspecified objects in society for the purpose of making profits", and curb the disorderly borrowing and lending between enterprises for profit. Without the support of the real economy, or if finance does not serve the real economy, the risk of economic bubble will increase significantly. Paying attention to the real economy has become the top priority, and it is necessary to reshape the modern industrial system, turn "made in China" into "created in China", and change from a "manufacturing power" to a "manufacturing power". 2. attention to stability and progress, adhere to the integration of development "To the virtual" easy to "out of the virtual" difficult, to the virtual process is easy to fall into the middle-income trap. Only innovation is always the direction of the development of the real economy, but the investment preference is risk-free and high-yield. Innovation means high risk, which may have huge returns, but it is more likely to lose money. For riskier projects, they are often avoided by social capital. Object. Vice versa, it is easier to "get rid of reality" than to "get real". We say that reshaping modern industries is a system problem, which requires progress in stability and the integrated development of primary, secondary and tertiary industries, not simply elimination but industrial upgrading. 3. Paying Attention to Scientific and Technological Innovation to Rebuild Modern Industrial System It is necessary to grasp the wave of new scientific and technological revolutions such as artificial intelligence, adapt to the requirements of harmonious coexistence between man and nature, maintain and enhance the advantages of a complete industrial system and strong supporting capabilities, efficiently gather global innovation elements, and promote industrial intelligence, greening, and integration. A modern industrial system with integrity, advancement, and safety. The establishment of this modern industrial system requires not only the "national system", but also the stimulation of market vitality and the development of "specialized and special new" enterprises. It is necessary to identify the pain points and layout in advance. The key industrial areas with clear strategy of manufacturing power are the basic chains to realize the role of "supplementing the chain", "extending the chain" and "strengthening the chain. In other words, the Outline of the Strategic Plan for Expanding Domestic Demand (2022-2035) refers to "strengthening the root base, raising advantages, making up for shortcomings, and strengthening and weakening", so as to effectively respond to external risks and challenges with its own stable development. All in all, in the process of reconstructing the modern industrial system, the economy and society will undergo further changes, but no matter how it changes, for us who are in it, we must not only go against the trend and accelerate breakthroughs in short-board areas; but also follow the trend. Do it and become bigger and stronger in advantageous areas. Only the industry that is consistent with the development trend of the industry is the most viable industry.

2023-05-06

Viewpoint | Common situations of changing and adding the executed person during execution

1. changes and additions to the person subject to execution must follow statutory principles. In judicial practice, obtaining an effective judgment does not necessarily mean that the creditor's rights can be paid off. The situation that the person subject to execution does not have the ability to perform or even maliciously evades execution often leads to "execution failure. When there is a situation that hinders the execution, changing and adding the person to be executed can effectively alleviate the difficulty of execution and accelerate the realization of the legitimate rights and interests of the parties. However, changing or adding the person subject to execution means increasing the entity liability of the third party. If the person subject to execution is changed or added at will, the third party not related to the case may bear the debts unrelated to the third party and infringe the legitimate rights and interests of the third party. Therefore, in judicial practice, the judgments and rulings of courts at all levels make it clear that the change and addition of the person subject to execution must follow the principle of legalism. The "Provisions of the Supreme People's Court on Several Issues Concerning the Change and Addition of Parties in Civil Enforcement" clearly stipulates the statutory circumstances under which the person subject to enforcement can be added in the enforcement procedure. Related cases] The 28th batch of guiding cases of the Supreme People's Procuratorate: Wei Dongping, Zhang Yi and He Xiaomin's loan contract dispute (2018) Hei 07 Jian No. 3 Guidance: The division of labor between trial and enforcement procedures is different, the rights and obligations of the parties should be determined by the trial procedure, and the enforcement procedure should not normally directly determine the rights and obligations of the parties, but can only be enforced on the basis of enforcement. The change or addition of the person subject to execution shall follow the legal principle, and shall not be changed or added except for the circumstances stipulated by the law or judicial interpretation, otherwise it will essentially deprive the parties of their litigation rights, which is a procedural violation. Although the specific provisions of "without trial procedure, the husband and wife who have not raised debts shall not be required to bear civil liability" were clearly stated by the Supreme People's Court in February 2017 in the notice on issues related to the proper trial of cases involving marital debts in accordance with the law, the basic principles and procedures for the people's court to add the person subject to execution in the execution procedure have always been determined, this provision is only a reaffirmation of the existing rules for determining the joint debt of the husband and wife. Liu Jingyan, Kaiyuanxin Space Real Estate Development Co., Ltd. and other loan contract dispute implementation supervision (2021) Supreme Law Enforcement Supervision No. 387 The main purpose of the judgment: the addition of the person subject to execution in the enforcement procedure means that the third party other than the obligor determined by the effective legal document shall bear the substantive responsibility directly through the enforcement procedure, which will have a great impact on the substantive and procedural rights of the third party. Therefore, the additional person subject to execution should strictly follow the legal principle, that is, it must comply with the provisions of the additional provisions on changes. Article 17 of the Additional Provisions on Changes. In this case, according to the facts that have been ascertained, the civil judgment of kaiyuan city court (2017) Liao 1282 Min Chu No. 661 confirmed that Jin Penglong Real Estate Company's zero equity price was transferred to 100 of Xin Space Company, which was an equity transfer. Xin Space Company's creditor's rights and debts were borne by itself, and Jin Penglong Real Estate Company did not bear the creditor's rights and debts of Xin Space Company. Liu Jingyan claimed that the merger between Jin Penglong Real Estate Company and Xin Space Company was an enterprise merger. Jin Penglong Real Estate Company did not make full capital contribution, which was inconsistent with the facts determined by the effective judgment and Articles 17 and 22 of the "Additional Provisions on Changes. Based on this, Liu Jingyan claimed to add Jin Penglong Real Estate Company as the person subject to execution, which did not comply with the legal provisions, so the court did not support his claim. The theoretical basis for 2. changes and additions to the executed person. Justice is the last line of defense to safeguard social fairness and justice, and enforcement is the last link on this last line of defense. In order to effectively solve the implementation problems, we must not only solve the "difficult implementation" problem, but also rectify the "implementation chaos" phenomenon. Why is the (I) allowed to change or add the executed person during execution? The function of the right of execution is to realize the relationship of rights and obligations established by the effective legal instrument through the enforcement procedure. Trial provides the basis for enforcement, but in judicial practice, the probability of effective judgments and rulings being actively performed is very low, and it is often necessary to rely on enforcement procedures as the ultimate guarantee for the realization of the rights of the parties. The debtor, in order to avoid the debt or delay the performance of the debt as much as possible, often reduces its own liability property in various ways, and if it is required to go through an entity trial in order to change or add an executor, it will increase the cost of realizing the creditor's claim and exacerbate the difficulty of enforcement. And because of the long trial cycle, the entity trial process may have a new need to hear the matter, so that the court trial work pressure increased at the same time, the relationship between creditor's rights and debts in a long-term uncertain situation, the creditor's rights are difficult to achieve. Therefore, in the implementation of the change, additional enforcement can effectively save judicial resources, improve the efficiency of enforcement, more conducive to the debtor to avoid debt or hinder the implementation of the cause, fully safeguard the legitimate rights and interests of creditors. (II) principle of separation of trial and execution Fundamentally, the change and addition of the person subject to execution must follow the principle of legalism, which is actually the embodiment of the principle of "separation of trial and execution. The right of enforcement is the power of the enforcement department of the court, at the application of the right holder, to use the coercive force of the state and in accordance with legal procedures to force the obligor to perform the obligations determined by the effective legal instrument. Different from the judicial power, the executive power has the administrative power color of one-way, compulsory and initiative. Like other public powers, it may be abused and infringe on the rights of the parties. The addition of the executed person at the execution stage involves substantive judgment, which depends on the trial procedure, and the determination of the executed person in the execution procedure actually implements part of the judicial power and expands the authority. In addition, the change and addition of the person subject to execution in the execution procedure means that the third party other than the obligor determined by the effective legal document is directly determined to bear the substantive responsibility through the execution procedure, which will lead to the substantial deprivation of the party's right of action, which will have a great impact on the substantive and procedural rights of the third party. Therefore, the additional person subject to execution must strictly follow the legal principles, and there is no clear provision in law, only the debtor who has been given an effective judgment by the court can become the person to be executed in an enforcement case. The Opinions of the Supreme People's Court on Further Improving the Mechanism for Restricting Enforcement Power and Strengthening Enforcement Supervision (Law [2021] No. 322) emphasizes that major substantive disputes in enforcement shall be resolved through corresponding litigation procedures in strict accordance with the provisions of the Civil Procedure Law and judicial interpretations, so as to avoid violations of regulations and the use of enforcement on behalf of trial. At the same time, the "opinions" also further clarify how to further deepen the separation of trial and execution, and how to make up for the losses of the parties after the implementation error. "Justice and efficiency are the eternal pursuit of judicial power", and the introduction of "Change and Additional Provisions" is the product of the balance between justice and efficiency. On the one hand, the "change and additional provisions" stipulates 20 kinds of situations in which the person subject to execution can be directly changed or added in the course of execution, which provides a basis for the efficient execution of relevant cases; on the other hand, the change and addition of the person subject to execution must strictly follow the principle of legalism in accordance with the "change and additional provisions", so as to avoid the infringement of judicial justice in the execution procedure. Judicial Determination of Common Circumstances of 3. Change and Addition of Persons Subject to Enforcement The "Provisions of the Supreme People's Court on Several Issues Concerning the Change and Addition of Parties in Civil Enforcement" (2020 amendments, hereinafter referred to as "Changes and Additions") have passed 16 articles to clarify that the law can be changed or added in civil enforcement. Twenty situations in which the person to be executed. For the specific identification of common situations in judicial practice, the key points are as follows: (I) the person subject to execution is a natural person In the "Modification and Addition Provisions", for the case where the person subject to execution is a natural person, only Article 10 stipulates that when the person subject to execution is declared missing, dead or declared dead, the person subject to execution may be changed or added. In judicial practice, it is common for applicants to apply for the addition of the spouse of the person subject to execution as the person subject to execution, or to request the addition of their relatives as the person subject to execution on the grounds that the property under the name of the person subject to execution is transferred to the name of their parents or children. However, neither of the above two situations is a statutory situation in which the person to be executed is added to the execution. Even if the heirs of the estate are added in accordance with the provisions of Article 10 of the "Changes and Additions", they can only be added to the heirs who have inherited the estate within the scope of their inheritance. Related cases] Tang Jie, Yin Minghui Private Loan Dispute (2019) Gan Zhi Fu No. 130 The main purpose of the judgment: At present, there is no evidence to prove that the person subject to execution transferred or transferred the property to his daughter free of charge after the civil judgment executed in this case became legally effective, which made the people's court unable to enforce it. Even if there is evidence to prove the existence of this fact, the person subject to execution should bear the legal consequences of judicial sanctions or criminal responsibility in accordance with the law. The applicant for reconsideration applies for adding a third person as the person subject to execution in this case on this ground, which is inconsistent with the law. The form of "mixing" of property between the respondent and his daughter as claimed by the applicant for reconsideration is not the property mixing between corporate legal persons, partnerships or partnerships and other organizations and shareholders, partners and other natural persons who should bear debts as stipulated by law. In fact, it claims that the property is transferred maliciously between parents and children in the form of common property, and the circumstances under which the person to be executed should be added are not applicable to the above-mentioned laws. And even if the malicious transfer of property between parents and children in the form of joint property, it does not belong to the "change, additional provisions" should be added as the circumstances of the person subject to execution. The person applying for enforcement may claim rights in separate litigation in accordance with the law. Li Guofu and Ai Yuping's Contract Dispute (2020) Ganzhi Fu No. 118 The main purpose of the judgment: the additional person subject to execution must have the corresponding legal conditions and must be clearly stipulated in the law and judicial interpretation. There is no legal basis for adding a spouse as the person subject to execution in the execution procedure. And according to Article 2 of the "Notice of the Supreme People's Court on Issues Concerning the Proper Trial of Cases Involving Marital Debts in accordance with the Law", without trial procedures, one of the spouses who has not raised debts shall not be required to bear civil liability. Therefore, if the applicant for execution applies for the execution of the property of the opponent, it must go through the trial procedure, and the court has no right to directly add the spouse as the person subject to execution and execute his legal property. Liu Chuanjun, Chen Ruisheng and Other Disputes over the Implementation of Lease Contract Disputes (2022) Lu 0103 Zhiyi No. 210 The main purpose of the judgment: according to Article 10 of the provisions of the Supreme People's Court on several issues concerning the change and addition of parties in civil execution, "if the natural person who is the person subject to execution dies or is declared dead, the administrator, heir, legatee or other subjects who have obtained the estate due to the death or declaration of death of the natural person are the person subject to execution and bear the responsibility within the scope of the estate, the people's court should support it." The key point is that the additional person must be the subject of the estate of the person being executed and be liable only within the scope of the estate. In this case, Chen Ruisheng, who is the person subject to execution, has died, and the person applying for execution can change the heir of the person subject to execution to the person subject to execution in this case in accordance with these provisions. The third person Chen Zhongwei, Chen Zhonghua, Chen Zhongman, Chen Shuang and Chen Zhongye all issued a statement to give up inheriting Chen Ruisheng's estate, so they do not meet the additional legal conditions for change. (II) the executor is a sole proprietorship or individual industrial and commercial household. A sole proprietorship enterprise is a business entity established in China in accordance with the Law on Sole Proprietorship Enterprises, invested by a natural person, the property is owned by the investor, and the investor bears unlimited liability for the debts of the enterprise with his personal property. Because a sole proprietorship enterprise is an unincorporated organization, has no legal personality and does not have the ability to bear civil liability independently, the investors of a sole proprietorship enterprise bear unlimited liability for the debts of the enterprise. Based on this, when a sole proprietorship enterprise is unable to pay off the debts determined by the effective legal instrument, the people's court may, upon application, add its contributor as the person to be executed. In judicial practice, there is no dispute over the direct execution of the property of the operator when the person subject to execution is an individual industrial and commercial household, but most courts tend not to approve the reverse application of this provision when the operator of an individual industrial and commercial household is the person subject to execution. However, the Guangdong Higher People's Court mentioned in the "Letter of the Guangdong Higher People's Court on the Reply to the Proposal of the Representative No. 1624 of the Fourth Session of the 13th People's Congress of Guangdong Province" (Yue Gao Fa Han [2021] No. 32) that "considering the individual business in practice For individual industrial and commercial households, there is often no difference between their name property and the property of the operator. Therefore, when the operator of an individual industrial and commercial household (individual business) acts as the person subject to execution, he can directly execute the property of the name", and said that he will further understand the specific application of this article by the courts at all levels, unify the judgment standard, and clarify that "if the operator of an individual industrial and commercial household is the person subject to execution, the people's court will find out that the operator is consistent with the person subject to execution on the business license, and its organization form is personal operation, the property of the name can be directly executed to pay off the debts of the operator." Related cases] Shen Jian, Shao Liguo and Other Disputes over the Implementation of Sales Contract Disputes (2022) Shan 0111 Zhiyi No. 141 The purpose of the judgment: According to the relevant laws and regulations of our country, if the name of an individual industrial and commercial household is the person subject to execution, the people's court can directly execute the property of the person subject to execution. In this case, the person subject to execution is a natural person, and the objector requests to add the individual industrial and commercial household under his name. There is no legal basis. (III) executed is a partnership Based on the difference between a partner and a limited partner, the conditions for additional partners and limited partners are not the same when the partnership is unable to pay off the debts determined by the legal instrument in force. The former may be added when the partnership is unable to pay off the debts established by the legal instrument in force, but the latter is liable only to the extent that it has not paid its contribution in full and on time. (IV) the person to be executed is a legal person branch In applying Article 15 of the Alteration and Addition Provisions to add a legal person or other legal person branch of that legal person, it is often necessary to determine that the legal person branch is indeed unable to pay off the debts determined by the legal instrument in force. If the applicant fails to provide relevant proof and the court does not hear it, the ruling may be revoked. Related cases] Chongqing Construction Seventh Construction Engineering Co., Ltd., Dulan County Water Conservancy Bureau and other civil enforcement reconsideration (2021) Supreme Law Enforcement No. 17 The main purpose of the judgment: As a legal person branch of the person subject to execution, it cannot pay off the debts determined by the effective legal document. If the person applying for execution applies to change or add the legal person as the person subject to execution, the people's court shall support it. If the liability property directly managed by a legal person is still unable to pay off the debts, the people's court may directly enforce the property of other branches of the legal person. According to the aforementioned provisions, there are two prerequisites for adding a legal person to the person subject to execution. One is that the branch of the legal person cannot pay off the debts determined by the effective legal document. The other is that the people's court should only respond to changes if the two conditions are met at the same time., Additional applications are supported. As far as this case is concerned, the Dulan County Water Conservancy Bureau listed Chongqing Qijian Qinghai Company as the person to be executed on the grounds that Chongqing Qijian Qinghai Company is a branch that does not have independent civil liability. At this time, the Qinghai High Court should first examine whether Chongqing Qijian Qinghai Company is indeed unable to pay off the debts determined by the effective legal documents, while neither the Qinghai High Court's reversal execution ruling nor the objection ruling have been ascertained. The Qinghai High Court directly listed Chongqing Seven Construction Company as the person to be executed in the execution of the revolving ruling. The basic facts were not clear and the procedures were improper. (V) additional shareholders subject to execution When the for-profit law

2023-04-29

Viewpoint | Analysis of the Criminal Object of Illegal Mining Crime

Article 343 of the Criminal Law stipulates that the crime of illegal mining is a violation of the provisions of the Mineral Resources Law, unauthorized mining without obtaining a mining license, unauthorized entry into state-planned mining areas, mining areas of great value to the national economy and other people's mining areas, or unauthorized mining of specific minerals that the state stipulates to implement protective mining. In determining this crime, in addition to proving that the parties committed the above-mentioned acts, whether the object of the crime belongs to the mineral resources stipulated by law is also a necessary object of proof. 1. Mineral Resources Definition Article 2 of the detailed rules for the implementation of the Mineral Resources Law (decree No. 152 of the State Council) stipulates that mineral resources refer to natural resources in solid, liquid and gaseous form that are formed by geological processes and have utilization value. With economic development and scientific and technological progress, the value of natural resources to human beings is constantly changing, and the collection and utilization of mineral resources by enterprises is also gradually increasing. Therefore, the scope of mineral resources stipulated by the state is constantly adjusted. Identification of mineral resources should pay attention to the following two points: 1. Mineral resources are a kind of natural resources. 168 kinds of mineral resources are identified in the detailed rules for the Classification of Mineral Resources, which are energy minerals (11 kinds of coal, coal-derived gas, stone coal, etc.), metal minerals (59 kinds of iron, manganese, chromium, etc.), non-metallic minerals (92 kinds of diamond, graphite, phosphorus, etc.) and water and gas minerals (6 kinds of groundwater, mineral water, carbon dioxide, etc.). According to the announcement No. 8 of the Ministry of Land and Resources in 2000, gabbro, pyroxenite and synenite have become newly discovered minerals. According to the Announcement No. 30 of the Ministry of Land and Resources in 2011, shale gas has become a newly discovered mineral. On November 15, 2017, the State Council approved natural gas hydrate as a new mineral. According to the "China Mineral Resources Reporting 2022" issued by the Ministry of Natural Resources, 173 types of minerals have been discovered nationwide. 2. Mineral resources should be of use value. Not all mineral resources in nature have utilization value. Judging whether the material involved belongs to mineral resources is not only based on whether the composition of the material contains minerals, but needs to meet the output form, quantity and quality. It can be expected that the final mining is technically feasible, economically reasonable and has development and utilization value. It is possible that the substance contains mineral components, but due to the limitation of the level of science and technology, the substance does not reach the minimum industrial index of minerals, so it does not have the value of development and utilization in economy and technology, and it does not belong to the mineral resources in the legal sense. 2. determination of mineral and non-mineral related standards The main criterion for determining mineral and non-mineral is the mineral industry index, that is, under the current technical and economic conditions, the requirements of the mineral industry departments on mineral quality and mining conditions according to the supply and demand of mineral resources are the main basis for evaluating the industrial value of mineral deposits. The mineral industry indicators mainly include the following: 1. Boundary grade refers to the minimum requirement for the content of useful components in a single ore sample when estimating the total delineation of the ore body in the resource reserve, as a minimum grade limit to distinguish the ore from the surrounding rock. 2. The lowest industrial grade refers to the lowest average grade of a useful component in an ore body or block that can be used in industry. 3. The average grade of the deposit refers to the total average grade of the industrial ore of the deposit. 4. Comprehensive industrial grade refers to that when the deposit contains two or more minerals, any of which can not meet the requirements of their own industrial grade, but its grade is above the boundary grade and can be recovered technically, it should be converted into the equivalent grade of a major component according to the principle of equivalence, or the marginal industrial grade should be determined according to the marginal price of several mineral products, and to determine the corresponding boundary grade. 5. Ore grade, refers to a natural type or industrial type of ore or mineral, according to the content of its useful and harmful components, physical and technical performance differences, as well as different uses or requirements of the grade. 6. The content of associated useful components refers to the minimum requirements for the content of components that are associated with the main useful components in the deposit and do not have separate mining value, but can be recovered at the same time in the process of mining, selection and smelting of the main useful components, and have separate products or output values. 7. The content of associated beneficial components refers to the content of components that are beneficial to the selection and metallurgy of the main components in the ore, or can improve the quality of the products when the main components are processed. 8. The average allowable content of harmful components refers to the maximum allowable content stipulated by the components in the ore block (or ore body or single project) that have adverse effects on the ore in the process of mining, mineral processing and metallurgical processing, and even affect the quality of the product. 9. The minimum recoverable thickness, in accordance with the current relevant technical policies, according to the coal type, production, mining methods and resources in different areas, such as the lower limit of the recoverable thickness standard. 10. The maximum allowable thickness of intercalation refers to the maximum allowable thickness of mineralized intercalation (or intercalation) where the non-mineral intercalation in the ore body or ore layer and the rock layer in the ore body (layer) do not reach the boundary grade. Ores that do not meet the standards may not be treated as mineral resources for the time being because they cannot be mined, or if they are mined without economic benefits, or they will cause significant pollution to the environment. The state has promulgated corresponding standards for different types of minerals. For example: DZ/T 0337-2020 Code for geological exploration of mineral resources Oil sand DZ/T 0341-2020 Code for geological exploration of mineral resources Building stones DZ/T 0344-2020 General rules for geological exploration of petroleum and natural gas DZ/T 0346-2020 Code for geological exploration of mineral resources Oil shale, stone coal and peat DZ/T 0348-2020 Code for mineral geological exploration magnesite and dolomite DZ/T 0349-2020 Specification for mineral geological exploration bentonite and talc DZ/T 0200-2020 Code for geological exploration of mineral resources Iron, manganese and chromium DZ/T 0201-2020 Code for geological exploration of mineral resources Tungsten, tin, mercury and antimony DZ/T 0202-2020 Code for mineral geological exploration bauxite DZ/T 0203-2020 Code for geological exploration of mineral resources Rare metals DZ/T 0205-2020 Code for mineral geological exploration rock gold DZ/T 0206-2020 Code for geological exploration of mineral resources Kaolin, pyrophyllite and refractory clay DZ/T 0207-2020 Code for geological exploration of mineral resources Siliceous raw materials DZ/T 0208-2020 Code for geological exploration of mineral resources Metallic placer DZ/T 0209-2020 Specification for mineral geological exploration phosphorus DZ/T 0210-2020 Code for geological exploration of mineral resources Pyrite DZ/T 0211-2020 Code for geological exploration of mineral resources Barite, toxigite, fluorite and boron DZ/T 0212.1-Code for 2020 Mineral Geological Exploration-Salts-Part 1: General DZ/T 0212.2-Code for 2020 Mineral Geological Exploration-Salts-Part 2: Modern Salt Lake Salts DZ/T 0212.3-Code for 2020 Mineral Geological Exploration-Salts-Part 3: Ancient Solid Salts DZ/T 0212.4-2020 Code for Mineral Geological Exploration-Salts-Part 4: Brine Salts in Deep Reservoir DZ/T 0213-2020 Specification for mineral geological exploration Limestone and cement ingredients DZ/T 0214-2020 Code for geological exploration of mineral resources Copper, lead, zinc, silver, nickel and molybdenum DZ/T 0215-2020 Code for mineral geological exploration coal DZ/T 0216-2020 Specification for CBM Reserve Estimation The above standards are derived from the Ministry of Natural Resources Bulletin No. 26 of 2020. 3. typical cases involving the definition of "mineral resources" (2016) Ji 02 sentence final 547 Liu mou and other illegal mining crimes Facts of (I) case: The defendants Wang mou, Liu mou and Li mou 1 (handled separately) discussed making profits from the project in a yingyanshan iron ore co., ltd (hereinafter referred to as yanshan iron ore) of Hebei iron and steel group. Defendants Liu mou and Li mou 1 took advantage of their personal relationship with Wang mou 1, general manager of yanshan iron ore mine, and signed a stope topsoil transportation agreement with yanshan iron mine to enter the mining area for construction. In June 2012, the defendant Wang and others organized relevant personnel to enter the mining area, demolish and mine ore at the demolition location, and directly sell the ore for profit. Defendant Liu and other contact people to 45-90 yuan price range of ore sales. After identification, from the end of June 2012 to the end of June 2013, the defendant Wang mou and others illegally used iron ore resources in yanshan iron ore to save 190783 tons of hematite industrial ore, with an ore grade Tfe32.39%; 15760 tons of hematite low-grade ore, with an ore grade Tfe23.46%; The illegally mined iron ore is worth 23218268 yuan. The (II) was ascertained through the second instance trial: About the ore grade: The above evidence also confirms the fact that Yanshan Mine allows the outsourced convoy to pull the ore with rocks, and the ore that does not meet the required grade is blasted by the declaration convoy of the five appellants and other convoys. Zhang Mou 2 Wei and other relevant personnel of Yanshan Mine also found that the ore immediately stopped construction. If the ore grade did not meet the requirements of the mine, the witness testimony pulled away by the construction team confirmed it; the ore grade identified in the verification report is much higher than that provided by Yanshan Mine. There is a contradiction between the ore grade identified in the verification report and the ore grade in the statistical table of iron concentrate issued by Yanshan Mine and the ore grade claimed by the ore purchaser. It is not certain whether the ore mined by the appellant and others is high-grade ore or low-grade waste rock that cannot be used by Yanshan Mine. (III) court decision: The first, second, third, fourth, fifth, and ninth criminal judgment No. 54 of the Yutian County People's Court of Hebei Province (2016) was revoked....... The appellant (defendant in the original trial) Liu Mou and others were not guilty. Enlightenment of (IV) cases In the above-mentioned cases, although Liu and others carried out the act of mining without obtaining a mining license as stipulated in Article 343 of the Criminal Law, the amount of money involved exceeded the "serious circumstances" standard stipulated in the interpretation of the Supreme people's Court and the Supreme people's Procuratorate on several issues concerning the Application of Law in handling Criminal cases of Illegal Mining and Destructive Mining. However, because the taste of the ore cannot be determined, it cannot be determined whether the ore mined by the suspect is high-grade ore or low-grade waste rock that cannot be used in Yanshan Mine. Therefore, the court determined that the suspect Liu Mou and others based on the principle of "no suspected crime" Does not constitute the crime of illegal mining. Therefore, when dealing with illegal mining crime cases, whether the criminal object conforms to the law is an important consideration for determining the crime and non-crime. In the process of defending criminal cases of illegal mining, professional institutions can be entrusted to identify whether the ore mined by the suspect belongs to "mineral resources" according to the relevant provisions of the state on mineral industry indicators and mineral taste, and determine whether the suspect's ore mining behavior meets the requirements of utilization value. In addition, the mineral resources industry has strong professionalism and complexity. According to the provisions of the ''Regulations on the Appraisal Procedures for the Value of Mineral Resources Damage Caused by Illegal Mining and Destructive Mining, ''the competent department of land and resources of the people's government at or above the provincial level has the right to deal with illegal mining, The appraisal conclusion issued by the value of destructive mining that causes damage or serious damage to mineral resources. Therefore, it is also the starting point of the defense to examine whether the subject of the appraisal conclusion on which the prosecution is based is qualified.

2023-04-29

Viewpoint... From an effective defense case to talk about the effective defense of criminal offences in the field of private equity funds.

Recently, a case involving the crime of illegally absorbing public deposits by private equity funds undertaken by lawyers Li Kun and Cai Benjie of the Criminal Department of Zhongcheng Qingtai (Jinan) Law Firm has achieved good defense results. The parties involved in the case have been released on bail after being tried by the court and have now been released. The investigation organ of the case initially filed the case as the crime of fund-raising fraud, and the defender made a defense of innocence that the crime of fund-raising fraud did not constitute. During the examination and prosecution stage, the public prosecution organ changed the charge to the crime of illegally absorbing public deposits, and the defender continued to insist on the defense of innocence at the trial stage. Under the condition that the amount of more than 1200 million yuan was not refunded, the effective defense effect of "actual reimbursement" was achieved. Summary of 1. merits The defendant in this case is a private equity fund intermediary platform company, because the financing company through the intermediary platform to raise a large scale of funds, after the expiration of the product, the financing company's capital chain broke, resulting in a huge amount of funds can not be paid. In the process of financing, the defendant assisted the investors in adjusting the company involved, but did not identify the false property information and credit enhancement measures issued by the financing company. The intermediary platform charged high intermediary fees in the process of providing services. In view of this, the investigation organ believed that the defendant and the financing company had a conspiracy to illegally occupy the property of the fund-raiser, thus presuming that they were accomplices in fund-raising fraud. 2. defense thinking 1. On the crime of fund-raising fraud In this case, the defendant, as an intermediary, did not engage in traditional illegal fund-raising activities such as direct or indirect collection of funds, or even self-financing or self-financing in disguise, but was dragged into the criminal forbidden zone of illegal fund-raising because of the illegal or even criminal situation of the financing company itself. The key issue in this case may not be whether the intermediary company has an objective act of illegal fund-raising, but whether, as an intermediary agency, there is a subjective intention to jointly raise funds with the financing company to defraud, specifically, whether there is a conspiracy to illegally occupy the fund-raising property with the financing company, or whether the financing company still actively provides fund-raising assistance knowing that there is fund-raising fraud. In view of this, the defender puts forward the following defense point (excerpt): (1) Subjectively there is no complicity between the intermediary and the financing company's fund-raising fraud. First, before participating in the financing company project, the intermediary company has performed due diligence work, such as going to the State Administration of Taxation and other tax departments to investigate and verify the tax payment and related tax issues of the financing company, checking the financial advisory agreement, legal advisory service agreement, audit service agreement, etc. provided by the financing company for financing listing, and conducting due diligence work within its capacity through the above methods, the purpose is to ensure the true legitimacy of the project, which indicates that it does not have the subjective intent to conspire with the financing company to commit the crime of illegal fund-raising. As an ordinary business entity, the intermediary company involved in the case does not have the investigation ability of public authorities such as public security organs, and its relevant due diligence behavior has done its best to investigate its obligations. "the law cannot impose difficulties on others." it cannot be concluded that it is jointly involved in the crime because it has not found any signs that the financing company is suspected of committing a crime, and whether the financing company has committed a crime today, at present, there is no effective judgment to determine, then in the early stages of the intermediary company's participation in the project, it is even more impossible to determine whether there is a problem with the financing company's project. Second, there is no evidence to prove that the intermediary company and the relevant personnel of the financing company have carried out the so-called "communication and collusion" in advance on the illegal fund-raising, and the intermediary service provided by the company is not an act carried out under the control of the common criminal consent. (2) Subjectively, the intermediary company is not aware of the intentional fund-raising fraud of the financing company. The use of fraudulent methods to raise funds illegally for the purpose of illegal possession is an essential feature of the crime of fund-raising fraud. Whether it has the purpose of illegal possession is the key element to distinguish between the crime of illegal absorption of public deposits and the crime of fund-raising fraud. According to the 2015 Supreme Law, "Minutes of the National Court Symposium on the Trial of Financial Crime Cases", regarding the purpose of illegal possession in financial fraud, it mentions that "knowing that there is no ability to return and defraud a large amount of funds" is one of the situations. This point is for direct fund raisers and borrowers. For intermediaries, if the intermediary platform knows that the borrower has no repayment ability, it still provides loan services for them. Although the intermediary platform does not have a capital pool, it does not have the platform The necessary review of the authenticity or repayment ability of the borrower's related projects, or knowing that the project is false, it still provides illegal financing services for them, it can indeed constitute an accomplice in the crime of fund-raising fraud. However, specific to the facts of this case, the intermediary has indeed carried out a considerable degree of due diligence. We should also pay attention to several issues. What is the standard for the project qualification examination of the financing company? To what extent should the examination be carried out specifically? Is it required to provide a full guarantee? What are the specific requirements for the qualification of the intermediary agency for the borrower? After searching, there are no clear laws and regulations on the above-mentioned issues. Starting from the actual situation, the defender believes that if the intermediary agency can conduct the necessary formal authenticity review of the project data (the substantive review cannot be done under the condition of unequal information, which excessively increases the responsibility of the intermediary agency), on-site inspections, media images, etc., it can be determined that it does not constitute an intent to commit an accomplice crime. (3) The level of intermediary fees charged by intermediary companies is not an element of the crime of illegal fund-raising, which is a logical error. First of all, whether it is the crime of illegally absorbing public deposits or the crime of fund-raising fraud, it does not include the determination of the level of illegal income. The law clearly stipulates the constituent elements of the crime of illegal fund-raising, and it should be determined whether the perpetrator constitutes a crime based on these elements stipulated by the law. If the relevant personnel are determined to constitute an illegal fund-raising crime after reviewing these elements, then no matter how much the capital income they obtain It should be recognized as illegal income, and there is no question of how high or low it is at this time. Therefore, the identification logic should first be based on the composition of the crime to determine whether it constitutes a crime, and then determine whether the income of the relevant personnel is legal, and to determine whether it constitutes a crime by the level of income. In terms of illegal fund-raising crimes, there are no relevant laws and regulations as the basis, and it also reverses the logical order of determining such crimes stipulated by the law. Secondly, the so-called high or low commission is a matter of fact judgment, and there is an objective standard for fact judgment. What is low? What is high? Must be based on the relevant basis as a standard, there is no high or low concept, and if there is no relevant standard as a basis for high or low conclusions, can only be a subjective assumption, a relative conclusion, far from reaching the conclusion as a criminal fact, this subjective, relative determination does not meet the standards of the facts of criminal cases. In fact, there are also industry and regional differences in intermediary fees. As a commercial organization, the amount of intermediary fees charged by intermediary agencies is affected by a variety of factors. It is legal and effective without violating the mandatory provisions of laws and regulations, even if there is an agreement. The situation that the proportion is too high is also a problem solved by civil laws and regulations, which is not regulated in criminal laws and regulations. 2. On the crime of illegally absorbing public deposits After successfully changing a felony into a misdemeanor, the defender continues to adhere to the idea of innocent defense, and the crime of illegally absorbing public deposits needs to have four characteristics: illegality, openness, inducement, and sociality [(1) Absorbing funds without the approval of relevant departments in accordance with the law or borrowing the form of legal business;(2) Publicizing to the society through the media, promotion meetings, leaflets, and mobile phone text messages;(3) Commitment to repay principal and interest or pay returns in monetary, in kind, equity, etc. within a certain period of time;(4) Absorbing funds from the public, I .e., unspecified objects of society] Continue to defend, focusing on the discussion from the perspective of the composition of the crime. This article will not repeat, but for the crime, special attention should be paid to the "inducement" characteristics. The Interim Provisions on the operation and management of private equity asset management business of securities and futures operating institutions issued by China Securities Regulatory Commission clearly states that "securities and futures operating institutions and relevant sales institutions shall not sell asset management plans in violation of regulations, and shall not have improper publicity, mislead and cheat investors, or promise to investors in any way without loss of principal or minimum income, Including but not limited to the following situations: there are expressions in asset management contracts and sales materials that contain the connotation of capital preservation and income protection, such as zero risk, guaranteed income, and worry-free principal. The establishment of a structured asset management plan by a securities and futures operating institution shall not violate the principles of benefit-sharing, risk-sharing and matching risk and return, and shall not exist in the following circumstances: (a) directly or indirectly providing capital preservation and income protection arrangements to subscribers of priority shares, including but not limited to the provision of priority share income, early termination penalty interest, inferior or third-party institutions to make up the difference of priority income, provision of risk margin to make up the priority income, etc. agreed in the contract of structured asset management plan; (II) fail to conduct sufficient and appropriate due diligence on the identity and risk bearing capacity of inferior share subscribers of structured asset management plan; the (III) fails to fully disclose and disclose the structured design and corresponding risk situation, income distribution, wind control measures and other information in the asset management contract; The leverage ratio of (IV) stock and hybrid structured asset management plans exceeds 1 times, the leverage ratio of fixed income structured asset management plans exceeds 3 times, and the leverage ratio of other types of structured asset management plans exceeds 2 times. It is (V) to check the investment target of structured asset management plans through penetration, the structured asset management plan nests and invests in the inferior share of other structured financial products; the name of the (VI) structured asset management plan does not contain the words" structured "or" graded "; the total assets of the (VII) structured asset management plan account for more than 140 per cent of net assets, and the total assets of the unstructured collective asset management plan (I. e." one-to-many ") account for more than 200 per cent of net assets." The issue of credit enhancement measures, such as guarantees provided by third parties, should also be of concern. First of all, credit enhancement measures cannot be simply equated with "capital preservation and income protection"; Secondly, from the level of laws and regulations do not prohibit the asset management plan to take relevant credit measures; Finally, in the implementation of third-party credit enhancement measures, it should be legal, true and effective, so as to prevent the emergence of credit enhancement measures as a means of disguised commitment to "protect capital and income. With respect to premium repurchase and gambling agreements, attention should be paid to the design of the trigger clause in the Equity or Fund Share Repurchase Agreement to prevent the occurrence of an agreement on the contingency of the achievement of the condition as inevitable.

2023-04-29