Point of View | Litigation Practice of Corporate Deadlock

Corporate autonomy is a basic principle in modern commercial conduct, and on the premise that a company has a sound internal governance and organizational structure, the judiciary usually respects the rules of autonomy of each company and tries to avoid judicial intervention. However, when the internal governance of the company fails, there are contradictions that are difficult to reach agreement among shareholders, it is difficult for the company to form resolutions necessary for operation, the company's business development is restricted, and the company's employees and partners will also be affected by the impact, then judicial intervention will become an effective firewall. The Identification Standard of 1. Company Deadlock Article 182 of the the People's Republic of China Company Law: If serious difficulties occur in the operation and management of the company, and the continued existence of the company will cause significant losses to the interests of shareholders, and it cannot be resolved through other means, shareholders holding more than 10% of the voting rights of all shareholders of the company may request The people's court dissolves the company. Article 1 of the (II) of the Supreme People's Court on Several Issues Concerning the Use of the the People's Republic of China Company Law lists four situations of corporate deadlock: (I) the company is unable to hold a shareholders' meeting or a shareholders' meeting for more than two years, and the company has serious difficulties in operation and management; (II) shareholders fail to reach the proportion stipulated in the law or the articles of association, and no effective resolution can be made at the shareholders' meeting or shareholders' meeting for more than two years, and serious difficulties occur in the management of the company; (III) there is a long-term conflict between the directors of the company, which cannot be resolved through the shareholders' meeting or the general meeting of shareholders, and serious difficulties arise in the operation and management of the company; (IV) other serious difficulties occur in the operation and management of the company, the continued existence of the company will cause significant losses to the interests of shareholders. Through the above criteria, it can be seen that serious difficulties in the company's operation and management and significant losses to the interests of shareholders are not clear criteria for judgment, and other ways that cannot be solved through other means are not listed and summarized, and in practice, they rely more on the freedom of judges and social experience. Thus, often in practice, judicial judgment gives way to commercial judgment, avoiding unnecessary interference of judicial power with corporate autonomy. The Preposition Principle of 2. Judicial Intervention As mentioned earlier, the judicial power needs to respect the principle of corporate autonomy, so there are necessary preconditions for the settlement of corporate impasse through litigation. Internal autonomy is no longer possible within (I) companies. Through the guidance case of the Supreme People's Court, it can be seen that if the operation of internal governance institutions such as the board of directors and shareholders' meeting encounters serious obstacles and cannot make effective resolutions on any matter, then the company will not be able to operate normally and the interests of the company and shareholders will be seriously damaged. In these circumstances, judicial intervention becomes a necessary means. The claims of (II) shareholders have a legitimate purpose. The shareholder's application for dissolution of the company must have a legitimate purpose, need to focus on the nature of the causes of the company's deadlock, if there is a shareholder's malicious threat to other shareholders or through the dissolution of the company to benefit from the behavior, there are no conditions for dissolution of the company. It should be noted that if the shareholders are at fault for the formation of the company deadlock, the author believes that their fault can be resolved in a separate case, and the shareholders who are at fault can still file a lawsuit for the dissolution of the company. (III) through equity transfer, capital reduction and other means can not solve the deadlock According to Article 5 of the (II) Provisions of the Supreme People's Court on Several Issues Concerning the Use of the the People's Republic of China Company Law, the people's court shall pay attention to mediation in the trial of litigation cases involving the dissolution of a company. If the parties agree through consultation that the company or shareholders shall purchase shares, or make the company survive by means of capital reduction, etc., and does not violate the mandatory provisions of laws and administrative regulations, the people's court shall support it. If the parties cannot make the company survive by consensus, the people's court shall make a judgment in a timely manner. According to the current judicial practice, on the premise of respecting the autonomy of the company, if the company can or has the conditions to resolve the contradictions of shareholders through other means such as capital reduction, equity transfer, the company's repurchase of shareholders' equity, then the judicial power needs to give way to the autonomy, and the dissolution of the company can only be used as the last way to resolve the deadlock of the company. Practical Problems of 3. Dissolution of the Company (I) the inevitability of mediation before or during litigation According to Article 5 of the (II) of the Supreme People's Court on Certain Issues Concerning the Use of the the People's Republic of China Company Law, mediation has become a necessary link in the lawsuit for the dissolution of the company, which also reflects that judicial intervention should avoid interfering with the autonomy of the company as far as possible. In judicial practice, the court will guide shareholders to re-negotiate the balance of interests through mediation to correct the cause of the deadlock in the company's operations. It is particularly important to note that Article 7 of the Supreme People's Court's Provisions on Several Issues Concerning Civil Mediation Work of the People's Courts clearly states that if the content of the mediation agreement exceeds the plaintiff's request, the people's court may grant permission. Therefore, in the mediation process, shareholders can resolve the causes of corporate deadlock by various means, such as equity transfer, company capital reduction, revocation of corporate resolutions, and exercise of the right to know. If the (II) insists on dissolving the company, it needs to maximize the burden of proof. According to the aforementioned laws and regulations, the dissolution of a company needs to prove to the greatest extent possible that the company has serious difficulties, I .e. there is no internal remedy, and that it cannot be resolved through other means, I .e. there is no external solution. In the internal relief of the company, the shareholders who propose to dissolve the company should try their best to prove that the company has lost the ability to operate or the decision-making organ does not have the ability to make decisions and cannot form effective resolutions, in particular, it is necessary to collect evidence that internal systems, including the articles of association, cannot solve existing problems, evidence that the structure of internal management cannot solve the deadlock, evidence that the company cannot hold a board of directors or shareholders' meeting, and evidence that the meeting held by the company's resolution body is too divergent to form an effective resolution. In the external relief of the company, the shareholders who propose to dissolve the company also need to prove that there is no possibility of execution through capital reduction, transfer of shares to a third party, and repurchase of shares by the company. At this time, special attention needs to be paid to the protection of the pre-emptive rights of other shareholders of the company, the impact of capital reduction on the company's creditors, and the determination of the transfer price of the proposed transfer of shares to avoid harming the interests of others. 4. Class Case Reference Case 1: The Supreme People's Court Jilin Financial Asset Management Co., Ltd. and Hongyuan Group Co., Ltd. Dissolution Dispute [(2019) Supreme Fa Min Shen No. 1474] held that, first of all, as of December 31, 2016, the financial management company's external The loan problem has not been resolved. As the operating funds of the financial management company were unilaterally changed by Hongyun Group Company as loan lending and could not be recovered for a long time, the main business of the company's bulk acquisition and disposal of non-performing assets could not be carried out normally, and the purpose of the establishment of the company was defeated, and the company's operation was seriously difficult. Secondly, from the perspective of the operation of the company's management mechanism. After the financial management company was established on February 28, 2015, except for the board of directors held on April 27, 2015, it has never held an annual meeting of shareholders and a regular meeting of the board of directors in accordance with the company's articles of association. Since then, until the financial holding company filed a lawsuit in October 2017, the financial management company failed to hold a shareholders' meeting and the board of directors to solve the existing problems when there were conflicts between shareholders and serious difficulties in the company's operation. After filing the lawsuit in this case, although the financial management company held the board of directors and the shareholders' meeting in November 2017, the number of directors attending did not meet the conditions for holding the board of directors stipulated in the articles of association, and the shareholders' meeting was only attended by Hongyun Group Company unilaterally. The legality of the shareholders' meeting and the convening procedure of the board of directors and the validity of the resolution could not be recognized, and the shareholders had gone to court, the shareholders' meeting and the board of directors mechanism can no longer function properly. In summary, the 1. court of second instance ruled that the dissolution of the financial management company was not improper in law and reason. Case 2 The Supreme People's Court held in the case of Dong Zhanqin and Changchun Northeast Asia Logistics Co., Ltd.'s dissolution dispute [(2017) Supreme Law Minshen No. 2148] that to judge whether the company's operation and management has serious difficulties, it should conduct a comprehensive analysis from the operation status of the company's organization, focusing on whether there are serious internal obstacles in the company's operation and management, and whether the shareholders meeting or the board of directors is in a stalemate due to the intensification, the shareholders of one party cannot effectively participate in the operation and management of the company. In this case, Huiguan Company proposed to amend the company's articles of association three times, all of which were rejected by Dong Zhanqin. Since February 3, 2015, Northeast Asia Company has not held a shareholders meeting for two years, and the shareholders meeting mechanism has failed. In terms of daily operation, the candidates appointed by Huiguan Company as vice chairman, general manager and deputy general manager in recommend were rejected by Northeast Asia Company on the grounds that they did not reach the proportion of 3/5 stipulated in the articles of association. After the conflict, the company tried to change the company's decision-making mechanism by amending the articles of association, transferring equity to Dong Zhanqin and other ways to resolve the company's deadlock, but failed. The court of first instance and the court of second instance also failed to organize mediation. In summary, the failure of the decision-making management mechanism of the Northeast Asian company, the continued existence of the company will inevitably harm the major interests of the company, and can not solve the company deadlock through other means, the conditions of the company's insistence on the dissolution of the Northeast Asian company has been achieved. Case 3 The Supreme People's Court held in the dispute over the dissolution of Ningxia Yongri Elevator Marketing Service Co., Ltd. and Zhao Lili Company [(2017) Supreme Fa Min Shen No. 3364] that at present, it is difficult for the shareholders of Yongri Company to form a valid vote and manage the company by forming a resolution of the shareholders. The original judgment found that there were serious difficulties in the operation and management of the company, and that the continued existence of the company would cause significant losses to the interests of its shareholders. In the original trial, the case was mediated by the court many times, but because Yongri Company was unwilling to disclose the company's financial and operating conditions, the two shareholders did not agree to entrust a third party to evaluate the company's assets, and the equity transfer price could not be determined. Although Yongri proposed a mediation plan, it was only a unilateral proposal, and the parties have never been able to reach an agreement on a solution to maintain Yongri's survival, such as equity transfer, company repurchase or capital reduction. 1. the judgment of the second instance found that the serious difficulties in the operation and management of the company could not be solved through other means, it was not improper to dissolve Yongri company.

2023-04-25

Viewpoint... Wealth inheritance problem analysis series of (II)-the Bank CIRC to regulate the classification of trust business, trust companies will return to the source of trust.

On March 20, 2023, the China Banking and Insurance Regulatory Commission issued Document No. 1 of 2023, "Notice on Regulating the Classification of Trust Business of Trust Companies" (the "Notice"). Background of the Notice In recent years, the trust company's trust business has continued to develop and its business forms have continued to innovate. At the same time, the current trust business classification system has been in operation for many years, and trust business practice has not fully adapted, there are multiple cross-classification dimensions, business boundaries are not clear and the service connotation is vague and other issues. In order to improve the trust business classification system, the China Banking and Insurance Regulatory Commission drafted the ''Notice'', which reclassified the trust business and put forward relevant regulatory requirements on the basis of emphasizing the return of trust companies to the position of trustees, aiming to promote the standardized development of various trust businesses. Actively prevent and control risks and consolidate the results of chaos governance, lead the trust industry to give full play to the advantages of the trust system and effectively innovate, enrich the supply of trust source services, get rid of traditional development path dependence, promote the industry to achieve high-quality development. Specific classification of trust business The Notice clarifies the classification criteria and requirements for trust business, and points out that trust companies should classify trust business into three categories: asset service trusts, asset management trusts and charitable trusts, with a total of 25 business varieties, taking the purpose of the trust, the mode of establishment of the trust and the content of trust property management as the classification dimension. (I) Asset Services Trust Asset service trust refers to the trust company in accordance with the legal relationship of the trust, accept the entrustment of the principal, and according to the needs of the principal tailored wealth planning and intergenerational inheritance, custody, bankruptcy isolation and risk disposal and other professional trust services. According to the service content and characteristics, it is divided into five categories: wealth management service trust, administrative management service trust, asset securitization service trust, risk disposal service trust and new asset service trust, with a total of 19 business varieties. (II) Asset Management Trust An asset management trust is a self-beneficial trust in which a trust company sells trust products and provides investment and management financial services to investors of trust products in accordance with the legal relationship of the trust, and belongs to the private equity asset management business, and the Guiding Opinions on Regulating the Asset Management Business of Financial Institutions (Yinfa [2018] No. 106) is applicable. The trust company shall raise funds through a non-public offering of pooled funds trust plan and invest and manage the entrusted funds in accordance with the investment methods and proportions agreed upon in the trust documents. Investors in the trust plan are required to meet the criteria for qualified investors and are both principals and beneficiaries at the time the trust is established. According to the above-mentioned provisions of the new capital management regulations, asset management trusts are divided into fixed income trust plans, equity trust plans, commodity and financial derivatives trust plans and hybrid trust plans, a total of four business varieties. (III) Charitable Trust A public charitable trust is a trust business in which a principal entrusts his property to a trust company in accordance with the law for the purpose of public interest, and the trust company manages and disposes of it in the name of the trust company in accordance with the wishes of the principal, and carries out public charitable activities. The trust property of a public charitable trust and its proceeds shall not be used for non-public welfare purposes. According to the purpose of the trust, public charitable trust is divided into charitable trust and other public trust, a total of 2 business varieties. Wealth Management Services Trust Trust services provided by trust companies for the wealth management of natural persons, legal persons and unincorporated organizations are divided into seven business varieties according to the content and object of the services: (I) Family Trust The trust company accepts the entrustment of a single natural person, or accepts the joint entrustment of a single natural person and his relatives, with the protection, inheritance and management of family wealth as the main trust purpose, providing property planning, risk isolation, asset allocation, children's education, family governance, public welfare charity and other customized affairs management and financial services. The paid-in trust at the time of the initial establishment of the family trust shall not be less than 10 million yuan. The beneficiary shall be the principal or his relative, but the principal shall not be the sole beneficiary. Where a family trust involves a public welfare charitable arrangement, the beneficiaries may include a public welfare charitable trust or charitable organization. The trust business with the nature of special account financial management is not a family trust simply to pursue the preservation and appreciation of trust property. Recently, Ping An Trust successfully set up the first "Family Charter + Double Protector" family trust, innovatively incorporating the family charter into the trust documents, and creating a "Double Protector" mechanism for the protection of human beings and human beings to perform their duties together, with a scale of 10 million yuan. The beneficiaries are three generations of family members of the trustor and the direct blood relatives of the trustor born in the future. The family trust innovation incorporates a family charter to regulate the behavior of future generations and urge them to follow family rules and family spiritual culture. Another major innovation of the family trust is the introduction of a "double protector" mechanism, which performs different protector functions by setting up two types of protectors: one is a natural person protector, which is held by the family members of the client and is responsible for the investment of the family trust and the addition and change of beneficiaries; the other is an institutional protector, which is held by an external law firm hired by the client and is responsible for supervising the implementation of the family charter code of conduct by the beneficiaries, if the beneficiary violates the code of conduct, the institutional protector may apply to the trustee to suspend the beneficiary's eligibility. The family trust provides a one-stop family inheritance solution for ultra-high net worth customers, effectively serving the dual needs of "creating a generation" to inherit the family's material and spiritual wealth. (II) Family Services Trust A trust company that meets the relevant conditions, as a trustee, accepts the entrustment of a single natural person, or accepts the joint entrustment of a single natural person and his family members, to provide services such as risk isolation, wealth protection and distribution. When the family service trust is initially established, the paid-in trust shall not be less than 1 million yuan, the term shall not be less than 5 years, and the investment scope shall be limited to trust plans, bank wealth management products and other public asset management products with interbank deposits, standardized debt assets and listed and traded stocks as the final investment targets. Family service trusts can be understood as "inclusive" or "MINI" versions of family trust products. Compared with the family trust, the threshold of the paid-in trust set up by the family service trust is more "people-friendly", not less than 1 million yuan. Family service trusts are basically the same as family trusts in terms of service functions, and are wealth management tools based on the trust system, all of which belong to wealth management service trusts under the new three classifications. Compared with the family trust, its service object is more extensive, can be extended to the public service population, the trust service contract is relatively standard, the scope of investment is limited to the standard investment. The functions of family service trusts include: family care, wealth inheritance, risk isolation and asset allocation. (III) Insurance Trust The trust company accepts the entrustment of a single natural person, or accepts the joint entrustment of a single natural person and his family members, and establishes the trust as the trust property with the relevant rights and corresponding interests of the life insurance contract and the funds required for the subsequent payment of premiums. When the payment conditions stipulated in the insurance contract occur, the insurance company will transfer the corresponding funds to the corresponding trust account in accordance with the insurance agreement, which will be managed by the trust company in accordance with the trust documents. Statistics from China Trust Registration Co., Ltd. show that in January 2023, the scale of new insurance fund trust was 8.974 billion billion yuan, an increase of 67.05 percent from the previous month, and the scale reached a new high in nearly 11 months. Compared with family trust, the threshold of insurance fund trust products is greatly reduced, which can enable more customers to share the high-quality and characteristic financial services provided by the trust plan, and gradually become a new hot spot of family wealth management, with broad space for future development. (IV) Special Needs Trust The trust company accepts the entrustment of a single natural person, or accepts the joint entrustment of a single natural person and his relatives, to meet and serve the living needs of specific beneficiaries as the main purpose of the trust, management and disposition of trust property. Recently, Everbright Trust and Everbright Bank Private Bank have cooperated to land the first single bank-trust cooperative physical and mental disability service trust in China, breaking the blank of domestic private banks in the field of physical and mental disability service trust, and providing innovative solutions for the lifelong care of people with physical and mental disabilities. In the trust structure, the principal is the family of the mentally handicapped child, the child is the beneficiary of the trust, and the Everbright Trust provides the trust service as the trustee. Due to the special circumstances of the beneficiary, in order to prevent the client from taking care of the child or leaving the child's property to be embezzled by others after the death of the client, the physical and mental disorder service trust reduces the proportion of cash distribution to the beneficiary and increases the function of entrusted payment compared with the previous family trust. The trust funds are based on the instructions of the client or other command owners (I. e. the client designated the person who sent the instructions to the trust company after his death), payments are made in the form of service fees to institutions that provide assessment, care, old-age care, rehabilitation and other services to beneficiaries, who are not in charge of a large amount of property themselves, but who can continue to enjoy the services provided by the institutions, thus safeguarding their quality of life in the future. (V) testamentary trust In order to realize the plan of the estate, the single settlor (testator) specifies the management plan of the estate, including the management, distribution, use and payment of the estate, in the way of establishing trust terms in the will and relevant trust documents in advance. After the will takes effect, the trust company will manage and dispose of the trust property according to the trust terms in the will. (VI) Other Personal Wealth Management Trusts The trust company, as a trustee, accepts the entrustment of a single natural person to provide property protection and management services. The principal shall establish a wealth management trust with the property legally owned by him and shall not illegally pool the property of others to establish a wealth management trust. The trust benefit rights of other personal wealth management trusts may not be split and transferred. The paid-in trust at the time of initial establishment of other personal wealth management trusts shall not be less than 6 million yuan. (VII) Corporate and Unincorporated Wealth Management Trusts As a trustee, the trust company accepts the entrustment of a single legal person or unincorporated organization to provide comprehensive financial planning, specific asset management, compensation and welfare management and other trust services. In addition to the management of compensation and benefits for the purpose of the trust, the wealth management trust of the legal person and the unincorporated organization shall be a self-beneficial trust. The beneficial rights of wealth management trusts of legal persons and unincorporated organizations may not be split and transferred. The value of the property delivered by the trustee of the wealth management trust of the legal person and the unincorporated organization shall not be less than 10 million yuan. Risk Disposal Services Trust The trust company, as a trustee, provides fiduciary services for the disposal of corporate risk and establishes a trust for the purpose of repaying debts to creditors to improve the efficiency of risk disposal. According to the risk disposal method is divided into 2 business varieties: (I) Enterprise Market Restructuring Service Trust As a trustee, the trust company provides fiduciary services for the disposal of corporate risks in the face of debt crisis, proposed debt restructuring or equity restructuring, and establishes a trust for the purpose of repaying the debt to the creditors of the enterprise. The reorganization enterprise delivers the trust property, plays the advantage function of risk isolation, and pays off the creditors by distributing the trust benefits to the beneficiaries through the disposal of the trust property. The trust can balance the interests and demands of multiple parties, resolve the pain points and difficulties in reorganization, improve the efficiency and repayment rate of enterprise bankruptcy reorganization, and maximize the operation and value of asset management. (II) Business Insolvency Services Trust The trust company, as a trustee, provides fiduciary services for the disposal of enterprise risks in bankruptcy reorganization, reconciliation or liquidation in accordance with the the People's Republic of China Enterprise Bankruptcy Law, and establishes a trust for the purpose of repaying debts to the creditors of the enterprise. The 2019 Bohai Steel bankruptcy reorganization case introduced a trust structure for the first time in the corporate bankruptcy reorganization. Simply put, the bankruptcy reorganization trust is the enterprise is not good to realize or realize a large loss of the assets to be liquidated with the trust into a package, by the trustee in 5-10 years to slowly choose the opportunity to dispose of, and then the disposal of the funds back to the beneficiaries, that is, creditors. Conclusion: Trust companies will eventually return to their trust roots. The term "trust" as mentioned in the Trust Law refers to the act of entrusting the property rights of the trustee to the trustee on the basis of trust in the trustee, and the trustee shall manage or dispose of the property in his own name for the benefit of the beneficiary or for a specific purpose in accordance with the wishes of the trustee. Trust companies engaged in trust business should be based on the trustee's position, follow laws, regulations and regulatory requirements, ensure that the purpose of the trust is legal and compliant, handle trust affairs for the best interests of the beneficiaries, and fulfill the fiduciary responsibility of honesty, trustworthiness and diligence. From the present stage, the notice is a basic system to promote the transformation and development of the trust industry, which plays a positive role in promoting the industry to return to its origin and achieve sustainable and healthy development.

2023-04-20

Viewpoint... Whether the mortgagee has a priority right to pay the mortgage rent.

Whether the mortgagee has a priority right to pay the rent generated by the mortgage, this paper makes the following analysis: 1. [link to the law]] Article 212 of the Civil Code stipulates: "If the debtor fails to perform the due debts or the realization of the mortgage right agreed by the parties occurs, resulting in the mortgaged property being seized by the people's court according to law, the mortgagee shall have the right to collect the natural or statutory fruits of the mortgaged property from the date of seizure, except where the mortgagee fails to notify the obligor who shall pay off the statutory fruits. The fruits provided for in the preceding paragraph shall first be offset against the cost of collecting the fruits." Article 321 of the Civil Code stipulates: "Natural fruits shall be obtained by the owner; if there is both an owner and a beneficial owner, they shall be obtained by the beneficial owner. If the parties agree otherwise, they shall follow their agreement. Legal fruits shall be obtained in accordance with the agreement; if there is no agreement or the agreement is unclear, they shall be obtained in accordance with the trading habits." Article 20 of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Enforcement of the People's Courts stipulates: "The effect of seizure and seizure shall be as follows and natural fruits of the seizure and seizure." Article 197 of the original "Property Law" stipulates: "If the debtor fails to perform the due debts or the realization of the mortgage right agreed by the parties occurs, resulting in the mortgaged property being seized by the people's court according to law, the mortgagee shall have the right from the date of seizure. Collect the natural or statutory fruits of the mortgaged property, except where the mortgagee has not notified the obligor who should pay off the statutory fruits. The fruits provided for in the preceding paragraph shall first be offset against the cost of collecting the fruits." Analysis: According to the above-mentioned legal provisions of the Civil Code, the mortgagee's collection of rent from the mortgaged property is premised on the following four points: the 1. debtor fails to perform the due debt or the realization of the mortgage agreed upon by the parties; 2. the mortgaged property is seized by the people's court in accordance with the law (from the date of seizure, the mortgagee has the right to collect rent from the mortgaged property); 3. the mortgaged property; the 4. of the fruits shall first be offset against the cost of collecting the fruits. According to the above-mentioned law, the mortgagee has the right to collect the rent generated by the mortgage, then when there are other rights in the mortgage rent, the mortgagee has the right of priority to pay the rental income The Civil Code does not specify this. 2. Typical Case] Case 1:(2019) Supreme Law Enforcement No. 479 Case after: The building owned by Hou Fujiang, which is located at No. 13 Xiangyang Road, Linfen City, has been leased by co-owner Liu Shuping to Linfen Branch of Agricultural Development Bank of China at an annual rent of 1.8 million yuan since August 15, 2015. On May 19, 2016, Linfen Intermediate People's Court notified Linfen Branch of Agricultural Development Bank of China to assist executor Hou Fujiang in freezing (suspending payment) the rent of the building located at No. 13 Xiangyang Road, Linfen City, and executed the 2017 rent of the property in accordance with (2016) Jin 10 Executive Ruling No. 21. On January 28, 2015, Tang xiufen obtained the mortgage right of the real estate involved in the above-mentioned case of Hou fujiang, the executor. the other property right certificate of the house is (temporary housing mortgage) No. XX. On August 1, 2017, the mortgagee Tang Xiu Fen applied for the execution of the property in the Yaodu District People's Court, and the Yaodu District People's Court issued (2016) Jin 1002 Executive 2587 No. 2 execution ruling and seized the property. On March 29, 2018, the Yaodu District People's Court made (2016) an enforcement ruling of one of the 1002 executive 2587 of the Jin Dynasty, changing the application executor to Tang Dongjin. On July 20, 2018, the People's Court of Yaodu District, based on (2016) Jin 1002 Executive 2587 No. 5, executed the ruling and notified the lessee of the house to the Linfen Branch of the Agricultural Development Bank of China to assist in the extraction of the house rent. In the case of dispute over the loan contract between Shanxi Tongshida Coal Chemical Group Longshun Coke Iron Co., Ltd. and Li Junsheng, Bai Yunjie and Hou Fujiang executed by Linfen Intermediate People's Court, Tang Dongjin objected in writing to Linfen Intermediate People's Court's (2016) Jin 10 Executive No. 21 Assistance Notice requesting Linfen Branch of Agricultural Development Bank of China to assist in the execution of rent. The Court's view: In the Court's view, the focus of the case is whether 1. the effect of the mortgagee's priority payment of the mortgage is as good as the legal interest of the mortgage. 1. Whether the effect of the mortgagee's priority payment of the mortgage is as good as the legal interest of the mortgage. According to Article 197 of the the People's Republic of China Property Law, the mortgage creditor may collect the legal interest of the security if the mortgage claim has expired and the court takes measures to seize it. The effect of the mortgage right is not as good as the statutory interest before the seizure, but the court's seizure of the mortgaged property means that the mortgage right enters the realization procedure, and the mortgagee has the right to receive the natural or statutory interest of the mortgaged property from the date of seizure. The essence of the mortgage is to guarantee the realization of the mortgage claim by the exchange value of the mortgage, and after the court seizes the property, the rent, as part of the exchange value of the mortgage, should be included in the scope of the priority payment of the mortgage. In this case, the Yaodu District People's Court, as the enforcement court for the enforcement of priority creditor's rights, notified the lessee of the house on July 20, 2018 that it would assist the executor Linfen Branch of the Agricultural Development Bank of China to assist in withdrawing the house rent. Therefore, the house rent after July 20, 2018 can be obtained by the Yaodu District People's Court as the legal interest of the mortgaged house. 2. Whether the mortgagee has the right to receive the statutory interest if the statutory interest of the mortgage is seized by another court as a result of the ordinary monetary claim in another case. Does the provision of article 197 of the the People's Republic of China Property Law on the collection of fruits by a creditor mean that the creditor can be paid off directly with the fruits. "Right to receive" means that the creditor has the right to manage the civil interest rather than the right to dispose of it. The right of the mortgagee to receive the interest does not affect the ownership of the interest, which remains in the possession of the mortgagee. Therefore, no matter which creditor obtains the interest in this case, it cannot obtain the legal effect of being directly liquidated. The mortgage, regardless of which court of enforcement of the claim is seized, does not affect the mortgagee's right of priority payment. In the objection procedure of this case, Linfen Intermediate People's Court transferred the right to collect the house rent after July 20, 2018 to Yaodu District People's Court, the priority creditor's rights enforcement court, which guaranteed the mortgagee's right to collect legal fruits. Its (2018) Jin 10 Zhiyi No. 112 enforcement ruling complied with the law. Shanxi High Court (2019) Jin Zhi Fu No. 39 Executive Ruling Revokes Linfen Intermediate People's Court (2018) Jin 10 Zhi Yi No. 112 Executive Ruling is unfounded and should be corrected. Case 2:(2020) Supreme Famin Shen No. 2989 Case after: November 22, 2016. On the 23rd, Shenzhen Huizhong Company, as the pledgee, and Wan Zhao Company, as the pledgee, went through the unified registration of movable property ownership-change registration in the Credit Information Center of the People's Bank of China: the description of the pledged property clearly states that the pledgee will pledge the current and future rental income rights of 4 commercial properties in Block C of Tianlang Garden in Beijing with its ownership until the borrower pays off the principal and interest on the loan. On January 26, 2016, Tianbao Sub-branch of Bank A went through the mortgage registration procedures for the commercial real estate in Beijing owned by Shenzhen Huizhong Company. On May 12, 2017, the Higher People's Court of City A seized 4 commercial properties under the name of Shenzhen Huizhong Company, located in Block C of Tianlang Garden, Beijing, for the period from May 12, 2017 to May 11, 2020. On June 5, 2018, the Taiyuan Intermediate People's Court seized the above-mentioned properties. On June 29, 2018, the Hohhot Intermediate People's Court seized the above-mentioned properties. In the case of a dispute over the loan contract between Bank A Tianbao Sub-branch and Junan Company and Shenzhen Huizhong Company, the Higher People's Court of City A issued a civil judgment confirming the priority right to compensation for the commercial real estate owned by Huizhong Company in Chaoyang District, Beijing. After the judgment came into effect, Bank A Tianbao Sub-branch applied to the Higher People's Court of City A for enforcement. The Higher People's Court of City A designates the Second Intermediate People's Court of City A to be responsible for the execution. The Second Intermediate People's Court of Later A City made an executive ruling (2018) No. 621 of Jin 02: Auction of Commercial Real Estate in Chaoyang District of Beijing under the name of Shenzhen Huizhong Company. Ten Thousand Mega Company raised an objection to the execution of the auction of commercial real estate located in Chaoyang District, Beijing under the name of Shenzhen Huizhong Company. The Court's view: The Court believes that: combined with the reasons set out in the application for retrial of Wanzhao Company and the evidence provided, the main issue examined by the Court is: Wanzhao Company's claim to suspend the execution of the commercial real estate located in Chaoyang District, Beijing under the name of Huizhong Company can be established. In order to protect the legitimate rights and interests of outsiders and parties to the subject matter of enforcement, the current law provides for a system of enforcement objections. The purpose of an action filed by an outsider or a party to an execution objection is to request the people's court to exclude or continue the execution of a particular subject matter of execution. Thus, whether there is a cause sufficient to exclude or continue the execution of a particular subject matter of execution is the key to the people's court's judgment of whether the party's claim can be established. In this case, Wanzhao Company, as an outsider, filed an enforcement objection lawsuit, requesting the court to suspend the enforcement of the commercial real estate located in Chaoyang District, Beijing under the name of Huizhong Company. The main reason is that Wanzhao Company and Huizhong Company signed a "guarantee contract" and went through the "unified registration of movable property ownership" with the credit reference center of the people's Bank of China. Does Tianbao Branch of Bank A have the mortgage right to the real estate involved in the case, none of them can fight against the rental pledge right of the 10,000-dollar company to the property involved in the case. According to the facts of the case that have been ascertained, on January 26, 2016, Tianbao Sub-branch of Bank A went through the mortgage registration formalities for the real estate involved in the case. On November 22, 2016, Wanzhao Company registered the present and future rental income of the property involved in the case. The aforementioned facts show that Bank A Tianbao Branch has a mortgage right to the property involved in the case in accordance with the law, that is, in the event of the debtor's failure to perform the debt, the mortgagee Bank A Tianbao Branch has the right to enjoy the right of priority payment within the scope of the mortgage guarantee for the price of the property involved in the case at a discount, auction and sale of the mortgage. Wanzhao Company, on the other hand, has a preferential right to payment of the rental income of the property involved only compared to unsecured ordinary creditors. From the current legal provisions, where the same property is mortgaged to more than two creditors, the law establishes rules for determining the order of liquidation based on whether or not publicity has been completed and the order of publicity. Obviously, the quality right enjoyed by the company in this case is not enough to fight the mortgage right of the Tianbao branch of Bank A. As a result, Bank A Tianbao Sub-branch applied to the People's Court for the execution of the property-related request has a legal basis, and Wanzhao Company, on the grounds that it enjoys the right to pledge its accounts receivable against the mortgage of Bank A Tianbao Sub-branch, claimed that the legal basis for suspending the execution of the property-related request is insufficient. The company may only have the right of priority in the payment of the remaining part of the rent after the creditor of the mortgagee A Bank Tianbao Branch has been fully paid. In addition, the legal nature of the mortgagee's notification obligation under Article 197, paragraph 1, of the the People's Republic of China Property Law. Wanzhao Company's application for retrial claimed that the mortgagee's notification obligation was the effective element of the mortgage and the effective element of the rental income interest, not the confrontation element, and the court of first instance found that the confrontation element was wrong. The Court is of the view that this ground is also untenable. First of all, as a non-possessory security right, the mortgage is generally established, the interest generated by the mortgaged property should be owned by the mortgagor. However, after the mortgaged property is seized, the mortgagee's rights and interests are realized through the law enforcement agency's possession. Based on this, the interest after the mortgage property is seized should belong to the mortgagee. Secondly, from the point of view of legislative purpose, the provisions of the law on the interest of mortgaged property are to prevent the mortgagee from delaying the disposal of the mortgage in order to collect the interest after the mortgage has entered the realization procedure. The interest of the mortgaged property is enjoyed by the mortgagee in favor of the realization of the mortgage, in line with the purpose of legal norms. Third, the interest of mortgaged property usually involves the settlement of the rights and interests of the legal interest obligor, and the notification obligation given to the mortgagee is conducive to preventing the debtor's wrong payment and also to safeguarding the rights and interests of the mortgagee. However, whether the mortgagee fulfills the obligation of notification does not affect whether the effect of the mortgage right extends to the interest. That is, if the mortgagee fails to fulfill the obligation of notification, the liquidating obligor pays the legal interest to the mortgagor because he does not know that the property is mortgaged, and its legal consequences still have the effect of liquidation. Summary of 3. Lawyers From the above case one and case two, it can be seen that case one and case two both recognize the effect of the mortgagee on the priority of mortgage payment and the rent generated by the mortgage, which is the current mainstream view on the priority of mortgage payment. At the same time, after the mortgage is established, the rent generated by the mortgage should be owned by the mortgagor, and after the mortgage is seized, the rights and interests of the mortgagee can be realized by the law enforcement agency, in this case, the rent after the mortgage is seized belongs to the mortgagee. At the same time, whether the mortgagee fulfills the obligation of notification to the obligor who should pay off the legal fruits does not affect whether the effectiveness of the mortgage affects the fruits. That is, if the mortgagee fails to fulfill the obligation of notification, the obligor will pay the legal fruits to the mortgagee because he does not know that the property is mortgaged, the legal consequences will still have the effect of liquidation, the mortgagee may not claim the invalidity of the liquidation and may not oppose the bona fide liquidation obligor.

2023-04-19

Viewpoint | Ministry of Housing and Construction Releases National Standard "General Code for Safety, Health and Occupational Health of Building and Municipal Construction Sites"

The Ministry of Housing and Urban-Rural Development issued the national standard "General Code for Safety, Health and Occupational Health on Construction and Municipal Construction Sites", numbered GB 55034-2022, which will be implemented from June 1, 2023. This specification is a compulsory engineering construction specification, and all provisions must be strictly implemented. At the same time, the following mandatory provisions related to engineering construction standards shall be abolished: 1. Articles 3.0.9, 5.0.3, 10.0.6, 12.0.3(6) and 15.0.4 (paragraphs) of GB 50656-2011 of the Code for Safety Production Management of Construction Enterprises. 2. Articles 2.0.1, 2.0.2, 2.0.3, 2.0.21, 4.1.11, 4.1.14, 4.5.2, 5.1.4, 5.1.10, 5.5.6, 5.10.20, 5.13.7, 7.1.23, 8.2.7, 10.3.1, 12.1.4 and 12.1.9 of JGJ 33-2012. 3. to articles 1.0.3, 3.1.4, 3.1.5, 3.3.4, 5.1.1, 5.1.2, 5.1.10, 5.3.2, 5.4.7, 6.1.6, 6.1.8, 6.2.3, 6.2.7, 7.2.1, 7.2.3, 8.2.3, 8.2.10, 8.2.11, 8.2.15, 8.3.4, 9.7.3, 10.2.2, 10.2.5, 10.3.11 of the "Technical Code for Temporary Electricity Safety on Construction Site" JGJ 46-2005. 4. Articles 4.0.1 and 5.0.3 of Construction Safety Inspection Standard JGJ 59-2011. 5. Articles 5.0.5 and 12.0.7 of the Safety Technical Specification for Hydraulic Sliding Formwork Construction JGJ 65-2013. 6. Articles 4.1.1, 4.2.1, 5.2.3, 6.4.1 and 8.1.2 of JGJ 80-2016 "Technical Code for Safety of High-altitude Operation in Building Construction. 7. Articles 5.1.5, 5.1.7, 6.1.1, 6.1.2, 8.3.2, 9.1.1, 11.0.2 and 11.0.3 of JGJ 88-2010 "Safety Technical Specification for Gantry and Derrick Material Hoists. 8. Articles 4.2.1, 4.2.5, 4.2.6 and 5.1.6 of JGJ 146-2013 Environmental and Hygienic Standards for Construction Sites of Construction Projects. 9. Articles 5.1.1, 5.1.2, 5.1.3, 5.2.2 and 6.0.3 of Technical Code for Safety of Building Demolition Engineering JGJ 147-2016. 10. Articles 5.1.6, 6.1.9 and 6.2.4 of Technical Code for Safety of Construction Formwork JGJ 162-2008. Eleven, "building exterior wall cleaning and maintenance technical regulations" JGJ 168-2009 article 4.1.3, 5.5.5. XII. Articles 2.0.2, 2.0.3, 2.0.4, 5.1.4 and 6.3.2 of JGJ 180-2009 "Technical Code for Safety of Earthwork in Building Construction. XIII. Articles 2.0.4, 3.0.1, 3.0.2, 3.0.3, 3.0.4, 3.0.5, 3.0.6, 3.0.10, 3.0.14, 3.0.17 and 3.0.19 of JGJ 184-2009 "Standard for Allocation and Use of Labor Protection Articles for Construction Operations. XIV. Articles 4.1.6, 4.2.10, 5.2.2, 5.2.10 and 5.3.9 of JGJ 215-2010 "Safety Technical Regulations for Installation, Use and Disassembly of Construction Hoists. 15. Articles 3.0.1, 3.0.3, 3.0.5 and 4.4.5 of JGJ 266-2011 of "Technical Regulations for Safe Use of Municipal Bridge Erecting Machines. Sixteen, "building construction lifting engineering safety technical code" JGJ 276-2012 3.0.1, 3.0.19, 3.0.23. Seventeen, "building tower crane safety monitoring system application technical specification" JGJ 332-2014, 3.1.1, 3.1.2, 3.1.3.

2023-04-17

Viewpoint | Qualification for copyright protection of practical works of art: artistic unity, separability or high-class (II)

Comparison and Enlightenment of Three 3. Standards Unification of (I) Art: The Trend of Secularization of Art and Opening of Art Concept Through the combing of the development of the qualification standards for copyright protection of practical works of art, we can find two chains on which its development depends, one is the secularization of art (including the development of industrial art), and the other is the dichotomy of the idea and expression of copyright protection. With the development of the industrial revolution and the popularization of culture, art gradually moved from the so-called noble palace to the secular and daily life. As the poet Paul Valerie said, "Great innovation will change all the techniques of art, which will definitely affect the artistic creation itself, and may eventually lead to the most charming way to change the artistic concept itself." In fact, art or beauty itself is a difficult concept to define, the concept of art should be open. When we appreciate and protect the pictures hanging in the art museum as works of art, can't we appreciate and protect the pictures carved on the dish as works of art. The unified theory of art fully reflects the development of modern art, especially the development of a branch of art-practical art. Another legal basis of the unified theory of art is the respect of intellectual labor, which holds that if the intellectual labor of pure art should be respected, then the intellectual labor of practical art should also be respected, so it should be protected by copyright. (II) High Class: Persistence of the Theory of Art Separation Adhering to the traditional concept of pure art, the high class believes that art is aesthetic and appreciative and belongs to the realm of the spiritual world, while the practical goods are the realm of the material world; if the practical goods are incorporated into pure art, the purity of art will be destroyed. Secondly, the theory also puts forward from the perspective of economic development, such as the inclusion of real goods into copyright protection to obtain monopoly rights, it will hinder its rapid entry into the public domain, weaken the competition in the practical market, and hinder the development of industrial economy. In addition, real goods can be protected through patents such as industrial designs, and no additional protection is required through copyright. (III) separability: A compromise between artistic separation and artistic unity The separable standard is a compromise between the two theories of art separation and art unification. It avoids the question of whether art unification or art separation as much as possible. It insists on adopting the dichotomy theory of thought and expression in the field of copyright, and holds that the function of practical goods cannot be protected by copyright. Therefore, it puts forward the theory of separable function and art to fit the dichotomy of thought and expression, copyright protection can only be obtained when the artistic features of practical goods can be separated from the functional features. Although the separable criterion is a compromise between artistic separation and artistic unity, it actually recognizes the objective existence of practical art and prefers artistic unity. (IV) revelation Although there has been a dispute between the separation of art and the unification of art, since the Berne Convention has made clear the qualification of practical works of art, and with the development of industrial art, the copyright protection qualification of practical works of art has been more and more accepted by the international community. Although some countries adhere to high-class standards, they still give copyright protection to practical works of art, which is actually a compromise; and the separable standard is also a compromise to practical works of art. From the perspective of the development of EU countries, the 1998 directive and the subsequent legislative or judicial changes of its member states further show the trend of artistic unification. The most controversial issue of the unified theory of art, as opposed to the criterion of separability, is its dichotomy that may confuse thought and expression. But this problem can be corrected to a great extent. In French judicial practice, the rule of exclusion of full-function domination has been developed, and when there is only one or several limited designs for the realization of the function of real goods, it cannot be protected by copyright. This functional dominance exclusion criterion is similar to the functional binding method in the separable standard, but the separable standard requires a lower degree of functional binding, as in the American theory, as long as the practical function largely dominates the artistic characteristics, then copyright protection cannot be obtained. From this perspective, there is no difference in essence between the separable standard and the unified art standard for the copyright protection qualification of practical products, only the difference in degree, and the unified art standard does not completely break through the two points of thought and expression. Compared with the high-class standard, the unified standard of art has obeyed the trend of the development of practical art, and promoted the development of practical art to a great extent. And those fears of artistic unity hindering economic development have not happened. In France, which practices the unified theory of art, its industrial economy is not restricted, but its fashion industry is booming. According to a survey initiated by the French Fashion Institute (IFM), the sales of the French fashion industry such as jewelry and glasses far exceed that of the French automobile industry and aviation industry. According to statistics, the annual sales of the French fashion industry have reached 150 billion euros, while the aviation industry is 102 billion euros and the automobile industry is 39 billion euros. Although we can find many factors in the development of the French fashion industry, its extensive protection of practical works of art is one of the key factors that cannot be ignored. Some scholars in the United States also called for learning from the French approach and giving fashion design copyright protection to promote the development of the American fashion industry. In addition, although practical designs can be protected in the patent field, the conditions and contents of design protection in the patent field are quite different from those in the copyright field. The patent field cannot protect all original designs, so the patent field protection is not suitable as an excuse to give up the copyright protection of practical products. Compared with artistic unity and artistic separation, the separable standard seems to be able to coordinate the two to a certain extent, balancing the protection of intellectual labor in the design of practical goods and the rapid popularization of industrial products. However, from the perspective of American judicial practice, the application of the separable standard in practice is extremely complicated and difficult. Even professionals can hardly judge whether specific practical works of art are qualified for copyright protection, which makes the law lose its clarity and stability. From the above combing of the American concept can be separated method, can be divided into two categories. One is the subjective method, the ordinary rational observer method, the design process method, the marketability method belongs to this category. The subjective method of judgment deviates from the characteristics of artistic development to a large extent. Art is not completely restricted by ordinary rational people. For example, Van Gogh's paintings did not receive the attention of ordinary people at that time; in addition, the subjective method itself is difficult to get rid of subjective arbitrariness. Dilemma. The other is objective methods. Other methods in American judicial practice are more inclined to this type. No matter how these methods are expressed, their essence cannot be separated from the practical function binding exclusion rule, that is, if the practical function of practical works of art binds its artistic characteristics, then it cannot be protected by copyright. However, these methods are neither clear nor clear about the degree of binding, so they are inevitably limited to a vague state. The unified standard of art in France is a simple path out of the quagmire similar to the separable standard. Some scholars in the United States also support the use of similar art unified standards instead of separable standards. 4. the Choice of Copyright Law in China (I) China's Legislation and Judicial Practice So far, China's "Copyright Law" has not included practical works of art in the scope of copyright protection. According to the understanding of the legislative participants at that time, the reasons are as follows: first, it is difficult to distinguish between practical art works and pure art works. Some art works belong to pure art, but they can be used in practical products. For example, Qi Baishi's paintings may be printed on bed sheets; second, it is difficult to distinguish between practical art and industrial design. Compared with copyright, industrial property protection has no advantages in terms of renewal and protection period. If copyright protection is given, no one may apply for industrial property protection; third, it is difficult to distinguish between practical arts and arts and crafts, and the latter is more widely accepted by the public. After joining the "Berne Convention", in order to implement the Convention, the State Council issued the "Regulations on the Implementation of International Copyright Treaties" in 1992, which granted foreign practical artworks copyright protection qualifications. Since then, China's judicial practice has also begun to try to include domestic practical works of art into copyright protection. Through more than 20 years of development, the fear that giving copyright protection will cause no one to apply for industrial property protection has not occurred, and the concept of practical works has begun to be widely accepted in the field of intellectual property and art. In the judicial practice of our country, there are roughly three kinds of judgment standards for the copyright protection of practical works of art: one is the public cognition standard, the other is the separable standard, and the other is the unified standard of aesthetic significance. 1. Public perception standards The public perception standard means that a practical work of art should reach a certain degree of art, so that the general public can regard it as a work of art. A typical case of this standard is the "Swiss Interleger Company v. Kecao (Tianjin) Toys Co., Ltd. and other copyright disputes" of the Beijing Higher People's Court ". In this case, Interleger Company believed that Kegao Company had infringed the copyright of 53 kinds of Lego toy building blocks. The court classified these building blocks into the category of "practical art works" and held that: practical art works should have the characteristics of practicality, artistry, originality and reproducibility; Practicality means that the article has practical value, rather than simply having ornamental and collection value; artistry, on the other hand, requires that the object has a degree of artistic creation that is at least sufficient for the general public to regard it as a work of art. Based on this standard, the court confirmed that some Lego toy blocks are practical works of art and are protected by copyright. This standard has also been used in other cases, such as the "Huahaida Company v. Ruichuan Company's Dispute over Infringement of Property Rights of Other Works" heard by the Intermediate People's Court of Xiamen City, Fujian Province ". When judging whether Huahaida's "Babylon Outdoor Stove Dining Table" enjoys copyright, the court held that whether the work involved in the case is a work of art should depend on its artistry, so that when the general public sees it, whether it is considered a work of art. According to this standard, the court determined that "Babylon Outdoor Stove Dining Table" is not a work of art. 2. Separable standard Separable standard is also used in the judicial practice of our country. A more typical case is "Blue Box International Co., Ltd. v. Dumex Infant Food Co., Ltd., Shanghai Lechao Household Products Co., Ltd., Zhejiang Krupp Machinery Co., Ltd.," heard by Shanghai Pudong New Area People's Court and Shanghai No. 1 Intermediate People's Court. "Shanghai Aishitu Economic and Trade Development Co., Ltd. Copyright Ownership and Infringement Dispute Case". Blue Box registered a "Bear Amusement Luggage Cart" as a work of art, and believed that Krupp and other companies violated its copyright if they used it without its authorization. In the trial of the case, the court of first instance held that the "bear amusement luggage cart" conforms to the characteristics of practical works of art. The specific analysis is as follows: the bear car is composed of two parts: the pulley trunk box (I. e. pulley amusement car) and the amusement car faucet (I. e. bear face panel). On the whole, it is a toy with practical functions. The bear face panel with artistic beauty and the box with practical function can be physically distinguished and independent of each other. In addition, the part of the faucet itself has a bear face pattern but has a general practical function. The two are integrated and are difficult to separate physically, but they can be separated conceptually, because even if there is no pattern, it will not affect the function of the faucet. Secondly, the design of the bear face pattern is original, and the beauty has reached a certain artistic height. Accordingly, the court of first instance determined the art qualification of the works involved. In this case, the court of first instance first adopted the methods of physical separability and conceptual separability commonly used in American judicial practice to determine whether there are separable artistic features, and then determined whether they constitute works of art according to the originality standard of works of art. The standard of separability is followed in the judicial practice of Shanghai courts. For example, in the case of "Yongfu Co., Ltd. v. Huang Xixin and Shanghai Duyi Trading Co., Ltd. Copyright Dispute" heard by Shanghai No. 1 Intermediate People's Court, the court held that: to constitute a practical art work, first of all, its practical function and artistic beauty should be independent of each other; secondly, its independent artistic design has originality. 3, the aesthetic significance of the creation of a unified standard Another standard is the unified standard of aesthetic significance, which does not adopt the separable method or the public cognitive method, that is, regardless of whether the practical function and artistic characteristics of practical works of art can be separated or not, and regardless of whether the artistry can be recognized by the public, the unified standard of originality of works of art is adopted. As long as this standard is met, works of art are constituted. The typical case of adopting this standard is the series of cases of "Lego Company v. Guangdong Xiaobai Dragon Animation Toy Industry Co., Ltd. and other copyright infringement disputes. Lego Company believes that Guangdong Xiaobai Dragon Animation Toy Industry Co., Ltd. and others have infringed the copyright of 57 of its building blocks and initiated 57 lawsuits around 2010. In the trial of these cases, the Beijing No. 1 Intermediate people's Court unified the qualification standards for copyright protection of practical works of art, and held that intellectual creativity should reach the basic height required by the copyright law. The basic intellectual creativity does not require the intellectual achievement to reach a higher degree of artistic or scientific beauty, but only requires that the intellectual creativity embodied in the work should not be too insignificant. In the appeal trial of this series of cases, the Beijing Higher People's Court held that the creative labor required to constitute a work requires not only the input of simple manual labor, but also not only an industrial or manual skill, but must include The necessary "creative" factor. In the retrial of this series of cases, the Supreme People's Court held that for art works, their originality requires the author's unique creativity and concepts in the field of aesthetics; therefore, for those objects that have both appreciation value and practical value, Whether it can be protected as a work of art depends on the unique personality and creativity embodied in the author's intellectual labor in aesthetics. Intellectual labor that does not belong to the field of aesthetics has nothing to do with originality. A series of cases such as Lego Company v. Xiaobai Dragon Company have been tried by the intermediate, senior and highest courts in China, which is of typical significance. In this series of cases, no matter the intermediate, senior or the Supreme people's Court, they did not adopt the separable standard to analyze whether the practical works of art need to be separated from the function and art in order to obtain the copyright protection qualification, but only adopted the originality standard of the works of art. This standard is obviously similar to the French uniform standard of art. Theoretical Discussion of (II) China In the field of intellectual property theory in China, the separable standard has been generally recognized. Zheng Chengsi, a well-known copyright research expert in my country, believes: "The copyright owner of a practical artwork can only confirm the infringement if he can prove that the defendant has copied the part of the artistic modeling that can still exist independently in his work except for the practical function." The scholar Lu Haijun thinks that the practical works of art should be regarded as a separate kind of copyright object, and the separable standard should be adopted as the qualification standard. Other researchers have combined the separable criteria and the high-class criteria. For example, scholar Wang Qian believes that the protection of practical art works as art works should meet three conditions: first, the practical function and artistic beauty must be independent of each other; second, the art design that can exist independently is original; third, it should reach a higher level of artistic creation. On the basis of separable criteria, other researchers distinguish different types of separation to determine different protection periods. For example, scholar Cui Guobin believes that for physically separable parts, the artistic part constitutes an independent work and enjoys the same long period of protection as ordinary works of art.

2023-04-17

Viewpoint | Qualification for copyright protection of practical works of art: artistic unity, separability or high-class (I)

[Abstract] For the copyright protection of practical art, two theories of artistic unity and artistic separation have been formed. On this basis, three basic standards for the qualification of copyright protection of practical art have emerged: artistic unity, separability or high class. In comparison, the high-class standard deviates from the era of industrial art development and has a tendency to be gradually abandoned; the separable standard has major defects of ambiguity and uncertainty; and the unified art standard is concise and clear, which is more in line with industrial art. The trend of development, more respect for the fruits of intellectual labor, practice has also proved that it can stimulate the development of the practical art industry to a large extent. At present, the protection of practical works of art in China's copyright legislation is not clear; judicial practice is also chaotic, forming a public cognitive standards, separable standards, aesthetic significance of the creation of unified standards and other standards; theoretical circles more advocate the use of separable standards, but lack of sufficient research and demonstration. At present, China has become a big manufacturing country and is transforming into an innovative economy, which provides a material basis for the copyright protection of practical art, and puts forward high requirements for protection. In this context, the revision of China's copyright law is appropriate to choose a unified standard of art and protect the copyright of original practical works of art; at the same time, it compromises with separable and high-class standards, giving a shorter 25-year protection period for general practical works of art, and giving a protection period equivalent to pure works of art for practical works of art with a higher degree of art; no copyright protection is granted to practical works of art whose artistic characteristics are completely or extremely governed by practical functions. Key words: practical art copyright art unity separable high class Presentation of 1. issues Traditional copyright law adopts a strict dichotomy of art and utility, and the object of protection is pure art or works of fine art (works of pure or fine art). This theory may be more appropriate in the early industrial and earlier times, when the separation of practical products and works of art was more obvious; materialistic products that satisfy clothing, food, housing and transportation are not very artistic, such as clothes are coarse linen, lack of exquisite colors, patterns and shapes; spiritual products that satisfy aesthetics have fewer practical functions, such as literature, painting and sculpture. But with the development of modernization, real goods are becoming more and more exquisite; such as mobile phones, which were earlier bulky and bulky models, but now have a variety of shapes, colors and exquisite decorations. With the broad spectrum of art in the practical field, more and more practical products with aesthetic value put forward strong copyright protection requirements, so the copyright law is facing the reform of the protection object. The country that made the earlier legislative change was France. In 1902, it amended the copyright law and clearly stipulated that regardless of the purpose of the work, the carving and design of decorations should be protected. This change is also gradually reflected in international treaties. At the Brussels Congress to revise the Berne Convention held in 1948, works of applied art (works of art) was explicitly included in the object of copyright protection. However, at the Berlin Congress to revise the Berne Convention in 1909, the object qualification of works of applied art was opposed by many members. After 1948, more and more countries of the Berne system included works of applied art in the object of copyright protection. Although the copyrightability of works of practical art has rarely been questioned, the eligibility conditions and protection standards for their copyrights have not been agreed upon in the international community. On the whole, there are three main qualification criteria for copyrightable goods: artistic unity, separability or high class. In our country, the early copyright law did not treat practical works as works. In 1992, with my country's accession to the Berne Convention, my country promulgated the "Regulations on the Implementation of International Copyright Treaties", Article 6 of which stipulates: "The protection period for foreign applied art works is 25 years from the completion of the work. The provisions of the preceding paragraph shall not apply to works of art (including animated designs) used in industrial products." Although the regulation stipulates the copyright protection qualification of practical art works, it is clearly limited to foreign works, and there is no specific judgment standard for practical works. For domestic works of applied art, the qualification of works has not been clear in the legislation. However, in judicial practice, many courts have used the way of expanding interpretation to include practical works of art in the protection of works of art, but the criteria adopted are very confusing. At present, my country is undergoing the third revision of the "Copyright Law". In the "the People's Republic of China Copyright Law (Revised Draft for Review)" issued by the State Council, it is clear that practical art works are regarded as a type of work, and it stipulates: "Practical art works, It refers to toys, furniture, accessories and other flat or three-dimensional plastic art works with practical functions and aesthetic significance". However, the draft does not specify the qualification conditions for practical works of art. So after the passage of the legislation, China is still facing the current judicial practice in the chaotic situation. Therefore, the copyright protection qualification of practical goods is still a subject that needs to be studied in the field of copyright law in China, and it is necessary to put forward a reasonable and feasible standard for copyright protection of practical goods on the basis of the standards of separation, high class and artistic unity, according to the current situation in China. 2. III standard traceability Unified Standard for (I) Art Earlier French law also adhered to the strict distinction between pure art and practical art (applied art). As an industrial art, practical design is not protected by the copyright law of 1793, but by the design law of 1806. French judicial practice has also developed many standards for the distinction between the two. For example, whether the production process of the product is mechanical, if it is a practical work of art, it is not protected by copyright law; Industrial purpose standards, if the purpose is to use industrial designs are not protected by copyright law; The standard of artistic characteristics is judged by the judge through the aesthetic point of view. These standards have many flaws and can easily lead to subjective arbitrariness. For example, products produced mechanically or used for industrial purposes do not mean that they are not artistic. In these objections, the theory of "unity of art" gradually developed, and some representative scholars, such as Eugene Pouillet, thought that it was difficult to draw a clear boundary between beauty and unbeauty, and it was unreasonable to deny the artistry of practical products simply because of their practicality. With the great development of industrial art, the theory of the unification of art gradually gained the upper hand in France. In 1902, the French copyright law was revised to list decorations as the object of copyright protection, regardless of their purpose. It was further amended in 1909 to include all physical designs as objects of copyright protection, regardless of the nature, artistic features and nature of the physical article. Since then, the French copyright law has always adhered to the theory of artistic unity, not only explicitly listing practical works of art as works, but also specifically listing seasonal clothing industrial products as works. However, the unified standard of art in France does not mean that all practical works of art are accepted without conditions. According to French judicial practice, designs that are completely (entirely,exclusively or solely) governed by function (dictate) are excluded from the protection of copyright law. (II) separable standard The separable standard means that the artistic part embodied in the appearance of the real product is physically or conceptually separated from the practical function of the real product, then the appearance of the real product will be protected by copyright law. Separable standards were developed earlier in Italy and later adopted by many countries, and some typical countries are selected below to illustrate the development of the separable standard system. 1. Italian copyright law-the origin of the legislation of separable standards. The theory of separable standard in Italy (the theory of dissociation) is developed in the debate with the French theory of the unification of art. This theory is called the theory of separation of art and utility (the duality of art), and its representative scholar is Piola (Piola-Caselli), which advocates that art and utility are separated, and practical goods cannot be protected by copyright. As early as 1925 in the Italian copyright law, the theory of artistic unification was supported, but in judicial practice, the Italian High Court adopted Piola Caselli's point of view. In 1940, the Italian Design Law made it clear that decorative designs and models could not be protected by copyright law, which strengthened the view that art and practicality were separated. However, the Italian copyright law of 1941 amended it to give copyright protection to the part where the artistic value of practical goods can be separated from the industrial characteristics, which is the Italian separable standard (scindibile). Italy's separability standard includes both physical separability and conceptual separability. For example, the figure statue on the door of Florence's baptistery will still maintain its artistic characteristics even if it is embedded in other media, which is physically separable. The structure of the salt bottle made by Cellini can undoubtedly be used on candy bottles or ink bottles, which is conceptually separable. However, the Italian concept of separability is very narrow, almost all three-dimensional designs are excluded in practice. In 1998, the European Community passed the "Design Legal Protection Directive" (Directive 98/71/EC), which made design copyright protection a mandatory obligation of members and stipulated that designs registered in member states should also be eligible for copyright protection. However, the degree of protection and the conditions of protection are determined by the member states themselves. The latest deadline for implementing the directive is 2001. In order to implement the directive, Italy amended its copyright law in 2001 to remove the separability condition and to include industrial designs with clear innovative and artistic value into the category of works protected by copyright. In terms of artistic value, the standard of artistic quality (artistic quality) has been formed in judicial practice. How to define "artistic quality" has caused a lot of controversy in Italy, and many solutions have been proposed, two of which are followed by case law. The first method is: to judge the purpose of creation, copyright is granted to designs made by artists in the art field of the same trade and practical products can be sold in artistic terms; The second method is that the design should be highly creative, that is, its appearance design is more likely to attract aesthetic evaluation rather than practical functional evaluation. The evidence of its aesthetic evaluation lies in whether the design is quoted in art books or displayed in museums or pavilions. 2. U.S. Copyright Law-The Prosperity of Separable Standards The copyright protection of the United States was first based on its constitution. In 1790, the United States promulgated the first copyright law. Later, after many amendments, the scope of its works became wider and wider. However, until 1909, the object of artistic works protected by its copyright law was limited to fine artistic works. In 1909, the United States copyright law explicitly used the term works of art (works of arts) and deleted the modified word fine (fine). This amendment of the United States copyright law shows the strong demand for copyright protection of industrial works of art. In fact, before this, the United States has begun to recognize that copyright protection can be granted to practical works of art, and should not be limited to fine works of art. During this period, the issue was hotly debated in the American theoretical circle, but the US Copyright Office, as an official institution, refused to provide copyright protection for practical works of art. The emergence of a landmark case to expand the object of copyright protection in 1954 completely changed the situation of serious differences before. This case is the Mazer v. Stein case. One of the main issues in the case was whether the dancer statue made in China was used as a table lamp base for copyright protection. The Supreme Court of the United States held that whether the dancer's statue is eligible for patent protection and whether it is installed on a desk lamp cannot prevent its copyright protection qualification; the intention or actual use of an industrial product cannot prevent its copyright protection qualification. In this case, the opinion of the Supreme Court of the United States completely removed the obstacles to the copyright protection of practical works of art, but the case did not specify the standard of copyright protection of practical works of art. In 1959, after the case, the U.S. Copyright Office issued regulations stipulating that if the shape of the actual product contains features such as artistic statues, curves, and drawings, the work can be registered when these features can be separated and independent as works of art. Since then, American legislation has borrowed the Italian standard of separability to distinguish practical works of art. The 1976 revision of the United States Copyright Act incorporated the contents of the 1959 statute, further clarified the separable standard, and described it in its entirety. Its 101st definition clause stipulates that paintings, graphics and sculptures contain practical works of art; For handicrafts, protect the shape of handicrafts rather than their mechanical or practical aspects; For the appearance design of practical products, if the painting, graphics and sculpture features contained in them can be separated and independent from the practical functions of practical products, the parts that can be separated and independent will be protected. The United States Copyright Act of 1976 establishes the separable standard in the form of an act. In the congressional report of the bill, it is particularly prominent that it is clear that separable includes physically separable (physical separability) and conceptually separable (conceptual separability), as long as one of them is satisfied. Although the United States Copyright Act of 1976 seems to clarify the standard of separability, it is completely impossible to find how to judge the conditions or methods of separability, especially the concept of separability, from the expression of its legislative provisions. Relatively speaking, physical separation is better understood, which means that the part as an artistic feature can be cut from its practical part. Or remove the practical part, the part of the artistic feature can exist independently. For example, the jewelry design on the belt, the separation of the jewelry design from the belt does not damage the practical function of the belt; Another example is the Mazer v. Stein case in 1954, the dancer statue can be cut out of the table lamp. Conceptually separable means that although the artistic features of a practical product cannot be physically separated, it can also be protected by copyright if it can be conceptually separated from the practical function. For example, the pattern carved on the vase can be used on the thermos. Although in many cases the pattern cannot be cut from the vase, it can be conceptually separated and used on other bottles. Relatively speaking, concept separability is a very abstract concept, which often gives us the feeling that we seem to understand its connotation, but when we encounter specific cases, it is vague and specious. For example, the shape of a vase is both beautiful and suitable for flower arrangement. At this time, the shape of beauty can also be applied to other bottles or jars. Generally speaking, it can be separated conceptually, but it is not easy to judge whether it is a concept separable in US copyright law. So far in the United States theory, legislation and judicial circles have not formed a unified concept can be separated to define the standard, but formed a large number of methods. For example, in the new Varsity Brands case in the United States in 2015, the Sixth Circuit Court of the United States summarized nine conceptual separable judgment methods; and scholar Shah Shahani (Sepehr Shahshahani) summarized 10 methods. Comprehensive American reality.

2023-04-14

Mineral Legal Perspective | April 12, Ministry of Natural Resources on Public Solicitation of Opinions on Several Matters Concerning Deepening the Reform of Mineral Resources Management (Draft for Comments)

On April 12, 2023, in order to implement the decisions and deployments of the Party Central Committee and the State Council on the reform of the mining rights transfer system, the reform of the oil and gas system, the strengthening of domestic exploration and development of important energy and mineral resources, and the increase of storage and production, give full play to the decisive role of the market in resource allocation, give better play to the role of the government, deepen the reform of "decentralization, management and service", improve the ability to ensure energy resources, the official website of the Ministry of Natural Resources issued an announcement on the public solicitation of opinions of the Ministry of Natural Resources on deepening the Reform of Mineral Resources Management (draft for soliciting opinions). The draft for soliciting opinions retains the original framework and has been revised on the basis of the opinions of the Ministry of Natural Resources on promoting the Reform of Mineral Resources Management (for trial implementation) (Natural Resources regulations [2019] No. 7). 1. modify background 1. Deepening the reform of mineral resources management is an important measure to implement a series of decisions and deployments of the Party Central Committee and the State Council. The Party Central Committee and the State Council have successively issued the "Overall Plan for the Reform of the Ecological Civilization System", "Several Opinions on Deepening the Reform of the Oil and Gas System", "The Reform Plan for the Mining Rights Transfer System", and "Guiding Opinions on Coordinating the Reform of the Natural Resource Asset Property Rights System." In order to implement the reform requirements of the CPC Central Committee and the State Council, document No. 7, based on the outstanding problems existing in the exploration and exploitation of mineral resources, absorbs some mature and feasible experience of the first trial, and rises to the level of mineral resources management system, so as to accumulate practical experience for the revision and exploration of the mineral resources law. 2. Deepening the reform of mineral resources management is an objective need to strengthen the domestic exploration and development of important energy mineral resources and increase storage and production. The 20th National Congress of the Communist Party of China and the Central Economic Work Conference put forward a series of requirements such as strengthening the domestic exploration and development of important energy and mineral resources, increasing storage and production, promoting the implementation of a new round of prospecting breakthrough strategic actions, and ensuring the security of the energy and resource industry chain supply chain. To implement these requirements, it is necessary to further deepen the reform of mineral resources management, study and solve new situations and new problems in the implementation, continuously improve the level of mineral resources management, and promote the exploration and development of mineral resources. 3. The reform of mineral resources management has achieved positive results. Local and market entities generally reflect that the reform of mineral resources management is strong and operational, which has effectively solved some institutional problems in mining administration for many years and plugged institutional loopholes. All localities have further standardized the transfer of mining rights, the management rights and responsibilities of departments at all levels have become clearer, and the service awareness, service level and approval efficiency have been further improved. It has effectively reduced the burden on market players and further optimized the mining business environment. 2. Amendment Principles On the basis of implementing the decisions and deployments of the Party Central Committee and the State Council on the reform of the mining rights transfer system, the reform of the oil and gas system, strengthening the domestic exploration and development of important energy and mineral resources, and increasing storage and production, the revised principles of this draft for comments are: 1. Adapt to the domestic economic situation and changes in the foreign environment, implement the requirements of the central government on the reform of mineral resources management, strengthen the domestic exploration and development of important energy and mineral resources, and increase storage and production; 2. Follow the rules of geological work and respond to the demands of society and enterprises; 3, in line with the "Mineral Resources Law" (revised draft) guiding ideology and related content; 4, the policy risk is generally controllable, the degree of consensus is high, good operation of the first introduction, see not very accurate, operational difficulties to be in-depth study and demonstration in the future. 3. Modification Highlights On the basis of retaining the framework structure and main contents of the original document, the draft for soliciting opinions focuses on the following aspects: 1. In order to solve the problem that the transfer agreement is too strict, make rational use of resources, and give full consideration to the demands reflected by local departments in charge of natural resources and mining rights holders, scattered resources around the mining rights have been set up, as well as the gap area (except for sand, gravel and soil minerals for ordinary construction) with a distance of about 300 meters between adjacent mining rights belonging to the same subject (safety production distance requirements), allows the transfer of prospecting rights and mining rights to the same subject by agreement (Article 2). 2. In order to strengthen the investment confidence of market entities and solve the problem of large deductions repeatedly proposed by enterprises, the proportion of deductions should be appropriately lowered. First, the deduction base is changed from the area contained in the first license to the area stated in the exploration license at the time of renewal, and second, the deduction ratio is adjusted from 25% to 20% (Article 7). 3. The integration of oil and gas exploration and mining is an innovative system issued by Document No. 7. Combined with the practice in the past three years, it has sorted out and refined the self-reporting integration plan, carried out the integration of exploration and mining work, registered mining rights and other links as well as the management requirements for untransferred mining, and clarified the contents of the "Integration of Oil and Gas Exploration and Mining Plan" (Article 6, Annex 2). Since the implementation of No. 4 and No. 7, more than 60 national standards and industry standards such as the Classification of Solid Mineral Resources Reserves have been completed and issued, and 10 series of mineral resources reserves management reform documents have been issued, and the reserves specified in No. 7 have been fully completed. Management reform tasks. We will continue to promote the reform of the management of mineral resources reserves and implement the new classification standards for mineral resources reserves. (Article 8 9.). 5. In order to reduce the cost of the counterpart's work, on the basis of extending the extension period of the prospecting right, the retention period of the prospecting right shall be extended from 2 years to 5 years (Article 7). 6. The WTI crude oil price, which is the basis for determining the market benchmark price of the proceeds from the transfer of oil and gas mining rights, will be revised to the Shanghai crude oil futures price (Annex 1). 7. In order to ensure the smooth progress of mining rights transactions, promote the use of guarantees or deposits in mining rights transactions and improve the competitive transfer of mining rights. (Article 1) 8. Combined with practical experience, it is clear that the evaluation of the proceeds from the transfer of mining rights shall be organized and carried out by the provincial natural resources authorities (Article 4). 9, with the "mining rights transfer transaction rules" and other documents, simplify or adjust the relevant content expression (first, third). Full text of 4. draft for comments Ministry of Natural Resources on Deepening the Management of Mineral Resources Opinions on reform of certain matters (Draft for Comments) The competent departments of natural resources of all provinces, autonomous regions and municipalities directly under the Central Government, and the Bureau of Natural Resources of Xinjiang Production and Construction Corps: In order to implement the decisions and deployments of the Party Central Committee and the State Council on the reform of the mining rights transfer system, the reform of the oil and gas system, the strengthening of domestic exploration and development of important energy and mineral resources, and the increase of storage and production, give full play to the decisive role of the market in resource allocation and better play The role of the government, deepen the reform of "decentralization, management and service", strictly observe the bottom line of resource security, optimize the spatial pattern, we hereby put forward the following opinions on deepening the reform of mineral resources management. 1. comprehensively promotes competitive transfer of mining rights Except for special circumstances such as agreement transfer, other mining rights shall be transferred through open competition in the form of bidding, auction and listing, and shall be implemented in accordance with the Rules on the Transfer of Mining Rights (Natural Capital Regulation [2023] No. 1). Promote the use of guarantees or deposits in mining rights transactions and explore the establishment of relevant rules to ensure the smooth progress of mining rights transactions. When the oil and gas (including oil, hydrocarbon natural gas, shale gas, coalbed methane, natural gas hydrate, the same below) prospecting right is transferred through competition, the starting price of the oil and gas prospecting right shall be determined according to the market benchmark price standard of the transfer income listed in Annex 1. 2. strictly controls the transfer of mining rights agreement For rare earth and radioactive mineral exploration and mining projects or key construction projects approved by the State Council, the competent department of natural resources may transfer mining rights to specific subjects by agreement. The agreement of the local competent department of natural resources to transfer the mining right shall be submitted to the local people's government at the same level for approval, and the Ministry of natural resources shall first seek the opinions of the people's government at the provincial level. Based on the consideration of mine safety production and rational development and utilization of resources, in the deep or upper part of the mining right, scattered resources around the mining right, and the gap area between adjacent mining rights belonging to the same subject about 300 meters (safety production distance requirements), the original production system needs to be used for further exploration and exploitation of mineral resources (except ordinary construction sand and gravel minerals), the exploration right and mining right can be transferred to the same subject by agreement. Such agreements are no longer reported to the local people's government. 3. actively promote the "net mine" transfer Implement the "net ore" transfer of sand and gravel mining rights, and actively promote the "net ore" transfer of other minerals. Strengthen the preparatory work for the transfer of mining rights, optimize the process of mining rights transfer, and improve service efficiency. According to the mineral resources planning, geological work results and the needs of the main body of the market, the establishment of mining rights transfer project library, in conjunction with the relevant departments, in accordance with the law to circumvent the ecological protection red line and other prohibitions to restrict the exploration and mining area, reasonably determine the scope of transfer, and do a good job with land use sea forest grass and other approval items and management policies, so that after the transfer of mining rights, mining rights holders can legally and regulations for land use for approval procedures, normal exploration and mining work. If the mining right holder is unable to carry out exploration and mining work due to the preliminary work of the transfer of mining rights, the competent department of natural resources may change or terminate the contract according to law, withdraw the mining right, and return all or part of the collected mining right transfer income in accordance with the relevant provisions. 4. implementation of the same mineral exploration right mining right transfer registration at the same level management The Ministry of Natural Resources is responsible for the transfer and registration of mining rights of 14 strategic minerals, including petroleum, hydrocarbon natural gas, shale gas, natural gas hydrate, radioactive minerals, tungsten, rare earth, tin, antimony, molybdenum, cobalt, lithium, potash salt and crystalline graphite; other strategic minerals are controlled by mineral resources planning, and the provincial natural resources department is responsible for the transfer and registration of mining rights. The remaining minerals are the responsibility of the provincial and lower natural resources authorities. The assessment of the proceeds from the transfer of mining rights shall be organized and carried out by the provincial department in charge of natural resources. 5. opens oil and gas exploration and exploitation market Domestic and foreign companies registered in the People's Republic of China with net assets of not less than 0.3 billion yuan are eligible to obtain oil and gas mining rights in accordance with regulations. Engaged in oil and gas exploration and exploitation shall meet the qualification requirements and regulations on safety and environmental protection, and shall have corresponding technical capabilities for oil and gas exploration and exploitation. 6. implementation of oil and gas exploration and production integration system If the oil and gas prospecting right owner discovers the oil and gas resources available for exploitation and decides to continue exploitation after completing the oil (gas) test operation, it can be exploited after submitting the exploration and mining integration plan (Annex 2) to the natural resources authority with registration authority within 30 days. In areas where geological reserves are proven in the course of exploration and mining, a report on mineral resources reserves shall be prepared in a timely manner for review and filing. Within 5 years of reporting the exploration and mining integration plan, the prospecting right owner shall sign a mining right transfer contract and register the mining right in accordance with the law. If the plan for the integration of exploration and mining is reported for more than 5 years and the mining rights continue to be mined without being transferred, it shall be treated as illegal mining. If the prospecting right holder decides not to continue mining after completing the oil (gas) test operation, and if the mining is completed within 5 years or cannot be transferred and the mining is stopped, the mining right registration shall no longer be processed. 7. adjust the term of prospecting right The period of registration for the new establishment, renewal and retention of prospecting rights is 5 years. 20% of the area specified in the exploration license shall be deducted when applying for the renewal registration of the exploration right (except for the deep or upper exploration of the mining right). No deduction shall be made for the scope of submitted resources for non-oil and gas or the scope of submitted proven geological reserves for oil and gas. The oil and gas prospecting right may deduct the same area of other blocks of the prospecting right owner in the same basin, but the newly transferred oil and gas prospecting right shall not be used to deduct the area of other blocks of the prospecting right owner within five years. If there is an agreement in the contract for the assignment of prospecting rights, it shall be executed in accordance with the contract. 8. implementation of new mineral resource reserve classification Mineral resources management and planning, policy formulation, mineral resources exploration and exploitation, resource reserve estimation and evaluation, mineral resources statistics and release, and the formulation of relevant technical standards shall implement the "Solid Mineral Resources Reserves Classification" (GB/T 17766-2020), "Oil and Gas Mineral Resources Reserves Classification" (GB/T 19492-2020) and the current national standards and specifications such as geothermal and mineral water. 9. Strengthening Mineral Resources Reserves Review and Filing The competent department of natural resources shall implement the legal requirements of the state of mineral resources, perform the duties of the owner of mineral resources, review and record the reserves of mineral resources declared by the mining right holder or the project construction unit upon application, and issue review and record documents. The competent department of natural resources may entrust the mineral resources reserve evaluation institution to organize the evaluation and filing work according to the scope and authority of the evaluation and filing, and the relevant expenses shall be included in the financial budget. 10. clarify the scope and authority of review and filing Mineral resources reserves report conforming to relevant standards and specifications shall be prepared if the proven geological reserves of oil and gas minerals during exploration and mining, other minerals accumulatively found significant changes in mineral resources during mining (with changes exceeding 30% or above medium-sized scale), and construction projects overburden important minerals, application for review and filing. No review and filing shall be conducted on the reasons for the retention or change of prospecting rights, the continuation, transfer or transfer of prospecting and mining rights, the closure of mines, and the financing of listing. The Ministry of Natural Resources is responsible for the review and filing of mineral resources reserves for which exploration licenses or mining licenses have been issued at the same level, and the other is the responsibility of the provincial natural resources authority. If the construction project is involved in overlaying important minerals, the provincial natural resources department shall be responsible for the review and filing, except for petroleum, (hydrocarbon) natural gas, shale gas, natural gas hydrate and radioactive mineral resources. XI. Standardizing the geological exploration work with financial contributions The central or local financial-funded exploration projects shall not set up exploration rights, and geological exploration work shall be carried out on the basis of the project task book. If the prospecting right has been established before December 31, 2019, the competent department of natural resources may continue to handle the renewal of the prospecting right and cancel the prospecting right after completing the prescribed prospecting work. This opinion shall be implemented from the date of issuance and shall be valid for five years. If other documents issued before the implementation of this opinion are inconsistent with the provisions of this opinion, this opinion shall be followed.

2023-04-14

Viewpoint... Building a multi-functional bankruptcy case digital platform-to empower bankruptcy case digital platform construction from the perspective of the manager.

Foreword Since the concept of "smart court" was put forward in January 2016, digital reform has been gradually promoted in the field of bankruptcy trial. The National Enterprise Bankruptcy Reorganization Case Information Network (hereinafter referred to as the "Reorganization Information Network") established by the Supreme People's Court has realized the timely disclosure of bankruptcy case trial process information and announcements, legal documents, debtor information and other information related to bankruptcy procedures., So that the work of the trial court and the administrator can be supervised by creditors and debtors in a timely manner. The purpose of the establishment of the reorganization information network is to "improve the transparency and credibility of the trial", which is mainly to enable the trial court and the administrator to publish information in a timely manner, accept supervision, and have the characteristics of "externality. In addition to the reorganization information network, there are also some other bankruptcy case handling digital platforms in the market, such as "bankruptcy cloud" and "breaking easy cloud". These bankruptcy case handling digital platforms are mainly set up with management labor as the main body. At present, the main function is to receive creditor's rights declaration. However, in the process of bankruptcy case trial, besides the court and administrator, it is also inseparable from the participation and support of other social subjects such as debtors, creditors and investors, there is a great deal of communication between these subjects, such as between the administrator and the court, between the administrator and the debtor, between the administrator and the investor, between the court and the debtor, between the court and the creditors, and the interaction between these subjects is "internal". The current reorganization information network and the market bankruptcy case digital platform can not achieve effective communication between these subjects, the communication between the main body is still mainly offline, which undoubtedly increases the cost of communication between the administrator, the court and other parties, reduce the efficiency of bankruptcy case work. The purpose of this paper is to combine the daily practical work needs of the manager, to the manager's perspective for the bankruptcy case digital platform construction to put forward the idea, to build a multi-functional bankruptcy case digital platform. 1. increase the setting of the debtor sector Take the reorganization information network as an example, the current reorganization information network set up the main body of the bankruptcy case for the court, creditors, managers, investors, the lack of the debtor plate set up. The debtor is very important in the trial proceedings of bankruptcy cases. Its main obligation is to "cooperate", which is manifested in the main cooperation with the administrator, the completion of the handover of the financial and business affairs of the bankrupt enterprise, and the investigation and verification of the administrator in the course of performing his duties. Work and so on. Although the debtor is in a "relatively passive" position throughout the insolvency proceedings, the degree of cooperation and participation of the debtor sometimes directly determines the course of the insolvency case. In addition, when the court and the administrator send relevant documents and notices to the debtor enterprise in the bankruptcy proceedings, they can also be sent through the case-handling platform with one click. Therefore, it is reasonable to set up a "debtor" section to increase the transparency of the debtor's participation in the entire bankruptcy case and promote the sound development of the bankruptcy procedure. 2. improve the bankruptcy filing system settings Most of the applications in current bankruptcy cases are made by creditors or debtors submitting written materials to the court offline. When a creditor files a bankruptcy petition, the court needs to notify the debtor whether it objects. If the court accepts the application, it is necessary to serve a ruling on the debtor and require the debtor to submit to the court a statement of property status, a list of debts, a list of claims and other enterprise information materials in the possession of the debtor's enterprise. And these bankruptcy filing materials are also the first-hand information for the later administrator to understand the debtor's business information. In practice, the court issues a decision on the appointment of the administrator, and after the administrator enters the market, he will often copy the relevant bankruptcy application materials to the court at the first time. In the process of digital development of bankruptcy cases, on the premise of increasing the setting of debtor sections, an online filing system for bankruptcy cases is added, so that debtors and creditors can upload filing materials and supplementary materials, the court can send one-click notice to creditors and debtors, and the court can also send bankruptcy application materials to administrators, thus realizing digital operation in each work link, greatly saving working time and providing work efficiency. 3. set up a separate creditor system in the manager's work platform to realize one-click sending of notification information. Sending all kinds of notices to creditors in a timely manner to protect the creditors' right to know, participate and supervise is an important work of the administrator. In the whole process of bankruptcy cases, the general notice to creditors are: notice of claims declaration, notice of creditors' meeting, communication letter of verification of claims, notice of reminder to attend the meeting, etc. In current practice, most managers still send notices to creditors by traditional mail, sometimes due to local technical limitations, and the mailing slips sent to creditors are also handwritten rather than typed. And in order to ensure that creditors receive the relevant notice, the administrator will generally take the mailing bureau to ask for a receipt, their own manual query courier information in order to prove that creditors received the relevant materials. Handwritten mailing, inquiry of express delivery information, and matching of request receipt with mailing information are all aimed at ensuring that the relevant notices sent to creditors can be delivered to creditors in a timely manner and to protect the rights of creditors. If the number of creditors of the debtor's business is in the hundreds, each time the relevant notice is sent to the creditors, these repetitive tasks cost the administrator a lot of human, material and financial resources. If the creditor system can be set up separately and the manager can freely enter creditor information, no matter how many notices are sent, the relevant work can be completed by selecting the creditor and sending it with one click. Whether it is successfully sent and whether creditors receive relevant notices can also rely on technical statistics to fully realize digital development, greatly saving manpower, material resources and financial resources. In current practice, there are also some digital systems, which rely on the relevant information filled in by creditors in the creditor's rights declaration system to realize one-click notification to creditors. This operation can also improve efficiency and save time, but there are still some disadvantages: First, when the court or the administrator (in practice, the court generally entrusts the administrator to send the creditor's rights declaration notice) sends the creditor's rights declaration notice to creditors, creditors do not fill in the creditor's rights declaration system, when the first notice of claim declaration is sent to creditors, the list of creditors is often based on the list of claims provided by the enterprise, coupled with the list of creditors finalized by the administrator after taking over the enterprise through due diligence and other means. When sending the creditor's rights declaration notice for the first time, it cannot be sent by the creditor's rights declaration system. Second, in order to ensure the success of creditor's rights declaration, some creditors often fill in multiple creditor's rights in the system and use the creditor's rights declaration system to send them with one key, which will lead to the problem of repeated sending. Third, due to the limitation of technical level, some creditors often use the traditional on-site declaration or paper mail method to declare claims, at this point, using the claim filing system to send a notice to creditors would omit that part of the creditor. Therefore, the confirmation of the list of creditors should be based on the list of creditors information held and determined by the administrator itself, rather than the information of creditors in the claims declaration system. The notice to creditors should also be based on the creditor information in the administrator's own possession. 4. set up a separate employee system on the manager's work platform to publicize employee claims. Article 48 of the Enterprise Bankruptcy Law stipulates that employee claims are not required to be declared, and a list is made and publicized by the administrator after investigation. If the employee has any objection to the list, he may request the administrator to correct it; if the administrator refuses to correct it, the employee may bring a lawsuit to the people's court. According to this law, although the employee's creditor's rights are not required to be declared, the manager still needs to make public to the employee after investigation, especially if the employee has any objection to the creditor's rights, he can raise an objection, so as to protect the rights and interests of the employee. In practice, after the administrator has completed the investigation of the employee's claim, it will generally notify the employee to post the employee's claim at the domicile of the debtor's enterprise, and if the employee has any objection to the claim, it will be proposed to the administrator that if the employee has no objection to the claim, he will sign a no-objection confirmation form (or not). In bankrupt enterprises, there are often many years of unpaid wages, some employees have long been in a state of resignation, in the new unit, and then let this part of the staff back and forth to confirm the claims for employees there is a certain degree of difficulty. Therefore, the notification and confirmation of employee claims can be realized through the digital platform. Managers send their claims to employees through the platform, and employees also confirm their claims through the digital platform to achieve digital green office. 5. setting up a correlation system between the court and the administrator to realize the submission and approval of documents. In the process of performing the duties of the administrator, based on the needs of the work, some documents need to be approved by the court before they can be effectively implemented, such: on the "Request for Approval of XX Co., Ltd. Reorganization Working Mechanism Plan and Other Systems", "Request for Approval of XX Company's Public Selection of Audit and Evaluation Institutions", "Report on Request for People's Court to Ruling Confirmation of Unchallenged Creditor's Rights", "Request for Request for Extension of Approval to Submit XX Company's Reorganization Plan Draft", etc. In addition, the manager also needs to report to the court on a regular basis, such as: the manager takes over the company's work report, about XX company work briefing. In practice, when the administrator submits documents to the court, he generally makes an appointment with the host judge in advance to submit relevant materials to the court, but sometimes changes the time to submit documents to the court due to temporary matters. After the court approves, the administrator will go to the court to retrieve the relevant documents and repeat them back and forth before completing a job. However, if a correlation system is set up between the administrator and the court, the administrator can directly submit relevant documents to the court through the case handling platform, and the court will review the approval documents and then transmit them to the administrator, which can facilitate the communication between the administrator and the court and improve work efficiency. Conclusion The handling of bankruptcy cases requires the participation of multiple parties, and the construction of the digital platform for bankruptcy cases also requires the participation of multiple parties to gradually improve. The author's idea of a multi-functional bankruptcy case digital platform is only from the perspective of the manager, and puts forward the above ideas from the perspective of the most practical and efficient work. Courts, debtors, investors, and creditors should not be absent from the participation in the construction of the digital platform for bankruptcy case handling, so that the construction of the digital platform tends to be complete, so that the construction of the digital platform is not reduced to "decoration" because of its practicality ".

2023-04-11

Viewpoint... Analysis of the validity of the breach of contract terms of the employment contract of the institution.

Foreword Under the background of the marketization of the allocation of human resources, the flow of staff in public institutions is inevitable. Because public institutions have certain social welfare attributes, the state has made different provisions on the resignation right of staff in public institutions from the Labor contract Law. The "Regulations on Personnel Management of Public Institutions", which came into effect on July 1, 2014, has become the most important legal basis for adjusting the personnel relations of public institutions. Article 17 of the Regulations stipulates: "A staff member of a public institution may terminate the employment contract upon 30 days' written notice to the institution. However, unless the two parties agree otherwise on the termination of the employment contract." This provision has become one of the most controversial legal provisions in the case of the resignation of personnel employed by public institutions. From the perspective of the employing unit, this paper combs the controversial views in judicial practice, and provides ideas for the employing unit in the face of similar situations. Text The employment contract is an agreement between the institution and the employee in accordance with the requirements of relevant national laws and regulations and related policies, on the basis of equality, voluntariness and consensus, to clarify the rights and obligations of the employer and the employed person related to the work. In practice, in order to retain talents and ensure the normal development of work, public institutions often agree with employees on the service period and the corresponding liability for breach of contract in the employment contract. When an employee unilaterally terminates the employment contract in advance in violation of the service period agreement and causes disputes, the employing unit will often require the employee to bear the liability for breach of contract in accordance with the provisions of Article 17 of the Regulations on Personnel Management of Public Institutions and the provisions of the employment contract, but the employee will usually defend against the provisions of Article 25 of the Labor Contract Law in violation of such provisions. However, there are disputes in the judicial practice on the validity of this kind of breach of contract clause, and the standard of judgment varies from place to place. One view is that, according to Article 17 of the "Regulations on Personnel Management of Public Institutions", "However, unless the parties agree otherwise on the termination of the employment contract", the public institution may make a reasonable restriction agreement on the unilateral early termination of the employment contract by the employee. Therefore, the liability for breach of contract can be agreed in the employment contract. For example, in the 2022 typical case of labor and personnel dispute arbitration issued by the Beijing Municipal Bureau of Human Resources and Social Security, in the case of a personnel dispute between a university affiliated middle school and Yao, the Arbitration Commission held that the relevant agreement between a university affiliated middle school and Yao on the termination of the employment contract and the payment of liquidated damages does not violate the mandatory provisions of laws and regulations, and is the true intention of both parties. It is binding on both parties. Therefore, Yao was ruled to pay liquidated damages to a university affiliated high school. Another example is: in the case of a personnel dispute between a university in Shijingshan and a certain person, the court held that: from the content stipulated in Article 17 of the Regulations on Personnel Management of Public Institutions, public institutions can negotiate with their staff on the specific circumstances of the termination of the employment contract and whether to assume corresponding responsibilities. According to the employment contract signed by both parties, if a party terminates the agreement in advance, it shall pay liquidated damages in accordance with the contract. The agreement does not violate the mandatory provisions of laws and regulations and shall be valid. Another example: in the case of a personnel dispute between a university in Huainan and Cheng, the court held that Cheng was a person with full capacity for civil conduct and had a high level of education. He should know the legal consequences caused by signing the contract. The contract was Cheng's choice after weighing the rights and interests of resignation and liability for breach of contract, which was his true intention. Therefore, the contract is the true intention of both parties, does not violate the mandatory provisions of laws and regulations, should be legal and effective, and has legal binding force on both parties. Therefore, Cheng's argument that the breach of contract clause is invalid cannot be established. Another view is that the "Regulations on Personnel Management of Public Institutions" does not provide for liquidated damages, so the provisions of the "Labor Contract Law" should be applied to determine that the relevant employee's unilateral early termination of the employment contract is invalid. For example, in the personnel dispute between Huaiyin Normal University and Wang, the court held that although the two parties agreed on the service period and liquidated damages in the Agreement on the Establishment, Employment and Performance of Senior Professional and Technical Posts, the agreement violated Article 25 of the Labor Contract Law, and the agreement should be invalid, so the court did not support the request according to law. Another example: In a personnel dispute between a college in Hubei and He, the court held that: Regarding the liquidated damages for the service period, although the minimum service period is stipulated in the documents of a college in Hubei and the Agreement on Entrusted Training and Studying for a Doctoral Degree, the service period The liability for breach of contract is not clearly stipulated in laws, administrative regulations or the State Council, so the court does not support the request in accordance with the law. The above two views, the author tends to the first view, that is, institutions can agree with employees in the employment contract to unilaterally terminate the contract of breach of contract, and the agreement has legal effect. The main reasons are as follows: According to Article 96 of the Labor Contract Law and Article 1 of the Reply of the Supreme People's Court on the Application of Laws to Personnel Dispute Cases in Public Institutions (Fa Han [2004] No. 30), the substantive handling of personnel dispute cases shall give priority to the application of personnel laws, administrative regulations or relevant provisions of the State Council. The Regulations on Personnel Management of Public Institutions are administrative regulations and are an important basis for handling personnel dispute cases. They should be applied preferentially. The proviso in Article 17 of the Regulations stipulates that both parties can unilaterally terminate the employment contract in advance. The circumstances and whether to bear the corresponding responsibilities and other issues are negotiated and agreed. At the same time, according to Article 4 of the "Opinions of the General Office of the State Council on Forwarding the Ministry of Personnel on the Trial Implementation of the Personnel Employment System in Public Institutions" (Guo Ban Fa [2002] No. 35), the responsibility for violating the employment contract is one of the provisions that must be included in the employment contract. This opinion belongs to the provisions of the State Council and is also the basis for the handling of personnel dispute cases, and shall be applied on a priority basis. Article 25 of the Labor Contract Law does not apply to employment contracts based on personnel relations. In summary, the employment contract can be agreed on the employee's unilateral early termination of the employment contract breach of contract clause, and the clause should be recognized as a valid clause. Suggestion: in order to avoid disputes and the risk of losing the lawsuit, it is suggested that the public institution should agree on the liability clause for breach of contract when signing the employment contract, and fully negotiate with the employees on the specific liability for breach of contract. The liability clause for breach of contract should be determined after comprehensive consideration of various factors such as the employment cost of the public institution, the service life of the employees, the working position and the economic losses that may be caused by the breach of contract, avoid the legal risk of losing a lawsuit due to failure to agree on liability for breach of contract or being adjusted because the amount of liquidated damages is too high. At the same time, while retaining talents, institutions should look at the rational flow of talents objectively and rationally. In the event of a dispute over liquidated damages due to the resignation of an employee, if it cannot be resolved through independent negotiation, it shall be resolved through arbitration and litigation in a timely manner in accordance with the law. Relevant legal provisions 1. Regulations on Personnel Management of Public Institutions Article 17 A staff member of a public institution may terminate an employment contract by notifying the institution in writing 30 days in advance. However, unless the parties agree otherwise on the termination of the employment contract. 2. Labor Contract Law Article 25 Except for the circumstances specified in Articles 22 and 23 of this Law, the employing unit shall not agree with the laborer that the laborer shall bear the liquidated damages. Article 96 Where laws, administrative regulations or the State Council provide otherwise for the conclusion, performance, modification, dissolution or termination of labor contracts between public institutions and staff members under the employment system, such provisions shall prevail; if no such provisions are made, the relevant provisions of this Law shall prevail. 3. Reply of the Supreme People's Court on the Application of Law and Other Issues in Personnel Dispute Cases of Public Institutions (Fa Han [2004] No. 30) Article 1 of the 1. "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Personnel Dispute Cases by Public Institutions by the People's Courts" (Fa Shi [2003] No. 13) stipulates that "disputes arising from resignation, dismissal and performance of employment contracts between public institutions and their staff shall be handled in accordance with the provisions of the the People's Republic of China Labor Law." Here, "applying the provisions of the the People's Republic of China Labor Law" means that the procedures of the people's court in hearing personnel dispute cases of public institutions apply the relevant provisions of the the People's Republic of China Labor Law. The people's court shall apply the legal provisions on personnel matters to the substantive handling of personnel dispute cases in public institutions, but if the content involving the labor rights of the staff of public institutions is not stipulated in the personnel law, the relevant provisions of the the People's Republic of China Labor Law shall apply. 4. "The General Office of the State Council Forwarding the Opinions of the Ministry of Personnel on the Trial Implementation of the Personnel Employment System in Public Institutions" (Guo Ban Fa [2002] No. 35) Standardize the contents of the employment contract The employment contract shall be concluded in writing by the legal representative of the employing unit or the person entrusted by it and the employed person. The employment contract must have the following clauses: (I) the term of the employment contract; (II) positions and their responsibilities; (III) post discipline; (IV) the working conditions of the post; (V) wages; (VI) the conditions for modification and termination of the employment contract; (VII) liability for breach of employment contract.

2023-04-10

Viewpoint | Knowledge Management-Avoid Loss of Novelty Disclosure

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

2023-04-10