Viewpoint. The path selection and analysis of the lessor's priority compensation right to the lease price in the financial lease.

Introduction There is a widespread situation of "self-mortgage" in the financial leasing business, that is, under the structure of the financial leasing transaction, the lessor is the owner of the leased property, and at the same time, in order to guarantee the realization of the creditor's rights under the financial leasing contract, the lessor and the lessee sign a mortgage contract, agreeing to mortgage the leased property under the financial leasing contract to the lessor as collateral, that is, the lessor is, the mortgagee. In judicial practice, there are many disputes over the determination of whether the lessor enjoys the priority right of compensation in the case of "self-property mortgage", and the results of the court decisions are not uniform. The Supreme People's Court on the application<中华人民共和国民法典>Article 65 of the Interpretation on the Guarantee System (hereinafter referred to as the Interpretation on the Guarantee System of the Civil Code) stipulates that the lessor has the right to "receive compensation" with the proceeds from the auction and sale of the leased property, but it is not clear whether it has priority. After searching the relevant cases, the application of the rules on the payment of the leased property by the lessor is not uniform, and there are also disputes over the determination and judgment standards of the lessor the priority of the lessor the right of the lease price of the lease price. 1. the determination of the priority right of payment of the lease price under the situation of "self-property mortgage". There has always been controversy in the theoretical and judicial practice about the validity of "self-mortgage" in the financial leasing business. Part of the view is that the "self-property mortgage" is invalid because it violates the statutory rules of property rights, and the lessor already enjoys ownership of the leased property, it cannot also enjoy the mortgage on the leased property, so the lessor has no right to claim priority compensation for the price of the leased property in the case of "self-property mortgage. Another view is that the lessor's ownership and mortgage rights to the leased property can coexist, and in the case of the lessor and the lessee agreeing to use the leased property as collateral and having gone through the mortgage registration procedures in accordance with the law, the lessor should be deemed to have the right to exercise the mortgage on the leased property and to receive priority compensation for the price of the proceeds from the auction and sale of the leased property. The provisions of Article 9 of the interpretation of the Supreme People's Court on the application of legal issues in the trial of financial lease contract disputes (hereinafter referred to as the judicial interpretation of financial leasing) issued by the Supreme People's court in 2014 recognize the effect of "self property mortgage" to a certain extent, that is, "the lessee or the actual user of the leased property shall transfer the leased property or establish other real rights on the leased property without the consent of the lessor, if the third party acquires the ownership or other real right of the leased property in accordance with the provisions of Article 106 of the Property Law, and the lessor claims that the third party's right is untenable, the people's court shall not support it, except for one of the following circumstances: ...... (II) the lessor authorizes the lessee to mortgage the leased property to the lessor and register the mortgage right in the registration authority according to law", according to the provisions, the lessor right to which, and can be registered by the mortgage against a bona fide third party. This provision provides a certain legal basis for the application of "self-property mortgage", but the Judicial Interpretation of Financial Leasing issued by the Supreme People's Court in 2020 has deleted the above-mentioned content, which seems to further hinder the lessor's path of priority compensation for the subject matter of the lease in accordance with the "self-property mortgage" claim. The author tends to believe that, from the perspective of maintaining financial leasing transactions and guaranteeing financial leasing claims, without prejudice to the legitimate rights and interests of the lessee and third parties, the lessor should be recognized as having the right to give priority to the payment of the lease price of the "self-mortgage. 2. the path of the lessor's priority compensation for the price of the lease under the system of the Civil Code and the Interpretation of the Civil Code Guarantee System. The Supreme People's Court on the application<中华人民共和国民法典>Article 65 of the Interpretation of the Guarantee System (hereinafter referred to as the Interpretation of the Guarantee System of the Civil Code) stipulates that the lessor has the right to pay the price of the financial lease, that is, "in the financial lease contract, the lessee fails to pay the rent as agreed, but still fails to pay within a reasonable period after being urged, and the lessor requests the lessee to pay all the remaining rent and pays the price from the auction or sale of the lease, the people's court shall support it; if the parties request to pay the rent by auction or sale of the leased property with reference to the relevant provisions of the Civil Procedure Law" cases of realization of security interests ", the people's court shall allow it." It should be noted that the provision only provides for "compensation at the price of the proceeds of the auction or sale of the leased property", but there is no expression of "priority. Therefore, on the basis of this provision alone, the lessor is not yet able to claim the right of priority compensation in respect of the price of the leased property. With regard to the issue of the right to priority compensation for the price of the leased property, the Supreme People's Court held in the book "Understanding and Application of the Judicial Interpretation of the Civil Code Guarantee System" that "whether the lessor can claim priority compensation for the price of the proceeds from the auction and sale of the leased property depends on whether the lessor's ownership of the leased property has been registered. According to Article 745 of the Civil Code, if the lessor's ownership of the leased property is not registered, it shall not oppose a bona fide third party. Therefore, when the lessor's ownership of the leased property is not registered, the people's court shall not support the lessor's request for priority compensation with the proceeds from the auction or sale of the leased property, but only support the request for compensation with the proceeds from the auction or sale of the leased property." From this, it can be seen that the lessor has registered the ownership of the financial lease on the premise that the price of the proceeds from the auction and sale of the lease has been paid first. Therefore, even if the lessor claims the priority compensation path for the mortgage of the leased property under the situation of "self-mortgage" may be blocked, according to the relevant provisions of the Civil Code, the Interpretation of the Civil Code Guarantee System and the views of the Supreme People's Court, the lessor should be able to obtain the priority compensation right for the price of the leased property by registering the ownership of the financial leased property. But at the same time, it should be noted that the applicable rules of the right of priority compensation of the lease price are not clearly stipulated by law, and the opinions of the courts in practice are not uniform. 3. relevant referee rules According to the above analysis, whether it is the "self-property mortgage" or the rule of payment of the lease price, there is some controversy as to whether the lessor can enjoy the priority right of payment of the lease price. After searching the relevant cases, the judicial practice of the lessor's priority right of compensation in the legal relationship of financial leasing mainly includes the following: 1. The act of "self-property mortgage" is invalid and the lessor does not have the right of priority compensation for the price of the leased property; 2. The lessor is not only the owner of the lease, but also claims that the exercise of the mortgage on the lease is in contradiction with the nature of the transaction, and it should not be recognized that it has a priority right to pay the price of the lease; 3. The act of "self-property mortgage" is valid, and if the mortgage registration procedures have been completed, the lessor shall have the right to exercise the mortgage on the leased property and may give priority to the auction and sale price of the leased property; 4. According to the provisions of the Interpretation of the Civil Code Guarantee System, if the lessor has registered the ownership of the leased property, it shall be determined that the lessor shall have priority in the payment of the auction and sale price of the leased property. 5. The Interpretation of the Civil Code Guarantee System only provides that the lessor has the right to be paid for the auction and sale price of the lease, and there is no basis for the lessor to claim priority compensation. 6. According to the provisions of the Interpretation of the Guarantee System of the Civil Code, the lessor has the right to be paid in respect of the lease, and if the mortgage of the lease has been registered, the lessor shall be deemed to have the right of priority to be paid. The relevant cases are as follows: <案例一>: Dispute over Financial Lease Contract between Maotai Town Maotai Liquor Industry Co., Ltd. and Zunyi Rongxin Real Estate Development Co., Ltd., renhuai city, Guizhou Province [Supreme People's Court (2016) Supreme Law Minzong No. 540]] The court held that the collateral of the "Mortgage Guarantee Contract" No. 0106-3-4 (2014) involved in the case was the lease of the financial lease contract involved, and Article 4-1 of the Lease Back Sale Contract stipulated that after the contract was signed and came into effect, the ownership of the leased property involved was transferred to Great Wall Guoxing Company. Article 34 of the the People's Republic of China Security Law provides that the mortgaged property is the right to use the movable or immovable property owned by the mortgagor. The company will not belong to its lease as collateral, in violation of the law, is an invalid contract. According to the Mortgage Guarantee Contract, Great Wall Guoxing Company claims that the request for priority compensation for the leased equipment provided by Maoxiang Spring Wine Company is not valid. <案例二>: China Youth Travel Industry Development Co., Ltd. and Jinyin Financial Leasing Co., Ltd. Financial Leasing Contract Dispute [Supreme People's Court (2019) Supreme Law Minchong No. 222]] The court held that, according to the selection clause in Article 4 of Part I of the Financial Lease Contract, the ownership of the four Lingbi stones involved in the case belonged to Jinyin Company before the judgment came into effect. Combined with the first instance litigation request of Jinyin Company, it proposed to exercise the mortgage right on the collateral (four Lingbi stones) owned by Suzhou Jingsi Garden Company and deposited in Suzhou Jingsi Garden, which contradicts the nature of the transaction involved in the case. <案例三>: Jiaohe Kaidi Green Energy Development Co., Ltd. and Kaidi Ecological Environment Technology Co., Ltd. Financial Lease Contract Dispute [Supreme People's Court (2019) Supreme Law Minzhong No. 547]] The court held that the question of whether Datang Leasing Company's request for preferential compensation for the price of the mortgage under the Maximum Mortgage Contract enjoyed by Jiaohe Energy Company should be supported. In this case, Datang Leasing Company signed the Maximum Mortgage Contract with Jiaohe Energy Company, and Jiaohe Energy Company mortgaged its biomass power generation equipment to Datang Leasing Company, and registered the mortgage with the Jiaohe Market Supervision and Administration Bureau, so Datang Leasing Company already enjoyed the mortgage right to the biomass power generation equipment. Now Jiaohe Energy Company and Kaidi Ecological Company are unable to perform their contractual obligations and comply with the contract to realize the mortgage. Datang Leasing Company requires the exercise of the mortgage on the biomass power generation equipment provided by Jiaohe Energy Company, which complies with the contract and legal provisions. Should be supported. <案例四>: Guotai Leasing Co., Ltd. and Qinghai Pingan Gaojing Aluminum Co., Ltd. have disputes over financial leasing contracts [Shandong Higher People's Court (2019) Lu Minchu No. 76]] The court held that on the issue of whether Cathay Pacific Leasing Company has the priority to be paid for the collateral involved, Cathay Pacific Leasing Company and Qinghai Aluminum Company signed a "mortgage contract" on September 25, 2017, agreeing to use the leased property as collateral to guarantee the realization of all claims of Cathay Pacific Leasing Company under the financial lease contract. On the same day, Cathay Pacific Leasing Company and Qinghai Aluminum Company registered the movable property mortgage with Cathay Pacific Leasing Company as the mortgagee, during the trial, Qinghai Aluminum Company also recognized the claim of Cathay Pacific Leasing Company. Therefore, the Court supports the claim of Cathay Leasing Company. <案例五>: Puyin Financial Leasing Co., Ltd. and Hanbang (Jiangyin) Petrochemical Co., Ltd. have disputes over financial leasing contracts [Shanghai Financial Court (2020) Hu 74 Min Chu 3458]] The main dispute in this case is whether the plaintiff has the right to auction, sell and give priority to the lease. Article 65 of the Judicial Interpretation of the Guarantee System stipulates that in a financial lease contract, if the lessee fails to pay the rent in accordance with the agreement and fails to pay it within a reasonable period of time after being urged, the lessor requests the lessee to pay all the remaining rent and pay the price of the proceeds from the auction or sale of the leased property, the people's court shall support it. According to the provisions of the new law, the lessor's ownership of the leased property in a financial lease has a guarantee function. If the lessee still fails to pay the rent within a reasonable period of time after being urged, the lessor requests the lessee to pay all the unpaid rent through litigation. Under the condition that the compensation of the proceeds from the auction and sale of the leased property is more conducive to the repayment of the debts of both parties, and does not violate the reasonable expectations of the contract parties. Thus, the provisions of the Civil Code and the Judicial Interpretation of the Security System on "payment of the proceeds from the auction and sale of the leased property" may be retroactively applied to the Financial Lease Contract in this case. As for whether the lessor can enjoy the priority of compensation, the court held that according to Article 745 of the Civil Code, "the lessor's ownership of the leased property shall not be opposed to a bona fide third party without registration"; and Article 63 of the Judicial Interpretation of the Guarantee System, "In atypical guarantees, if the parties fail to register in the legal registration agency in accordance with the law and claim that the guarantee has the effect of real rights, the people's court will not be supported, the lessor enjoys the right of priority compensation on the premise that the financial lease contract and the lessor's ownership of the lease have been registered, and the corresponding registration has the effect of public trust. ...... The court held that the registration of the financial lease contract and the leased property in question should be effective in rem from January 1, 2021, and that the priority of the plaintiff in the disputed leased property could also be determined according to that point in time. <案例六>: Pioneer International Financial Leasing Co., Ltd. and Xiao Peng Financial Leasing Contract Dispute [Beijing Chaoyang District People's Court (2021) Beijing 0105 Minchu No. 31084]] Regarding whether Pioneer Company can claim the priority of compensation for the auction and sale price of the leased property, the first paragraph of Article 65 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code stipulates that in a financial lease contract, if the lessee fails to pay the rent as agreed and still fails to pay within a reasonable period after being urged, the lessor requests the lessee to pay all the remaining rent, if the price of the proceeds from the auction or sale of the leased property is paid, the people's court shall support it; if the parties request to pay the rent by the price of the proceeds from the auction or sale of the leased property by reference to the relevant provisions of the Civil Procedure Law, the people's court shall allow it.... According to the provisions of the above judicial interpretation, Pioneer Company has the right to request the payment of the proceeds from the auction and sale of the leased property within the scope of the creditor's rights in this case, because the vehicles involved in the case have been mortgaged and registered in the name of Pioneer Company, so Pioneer Company claims to give priority to the payment of the proceeds from the auction and sale of the vehicles involved in the case, which is supported by this court. <案例七>: Ping An International Financial Leasing Co., Ltd. and Mo Yujian Financial Leasing Contract Dispute [Tianjin Pilot Free Trade Zone People's Court (2021) Jin 0319 Min Chu No. 10567]] The Supreme People's Court on the application<中华人民共和国民法典>The first paragraph of Article 65 of the interpretation of the relevant guarantee system stipulates that in the financial lease contract, if the lessee fails to pay the rent in accordance with the agreement and still fails to pay within a reasonable period of time after being urged, the lessor requests the lessee to pay all the remaining rent and pay the price from the auction or sale of the leased property, the people's court shall support it. In this case, the defendant failed to pay the rent on time, the plaintiff requested that the lease involved in the case and the defendant agreed to discount or auction and sell the lease, and the proceeds were used to pay off the defendant's above-mentioned debts with factual and legal basis, so the Court supported it. If the proceeds are not sufficient to pay off the above-mentioned debts, the shortfall shall continue to be paid by the defendant; if the proceeds exceed the above-mentioned debts, the excess shall belong to the defendant. The plaintiff's request for priority settlement of the above-mentioned debts on the proceeds has no clear legal basis, so the Court does not support it. 4. epilogue At present, in judicial practice, there are disputes over the determination of the priority right of payment of the lease price under the system of "self-property mortgage" and "Civil Code" and "Civil Code Guarantee System Interpretation", and no unified rule of judgment has yet been formed. From January 1, 2021, the People's Bank of China will be registered.</中华人民共和国民法典></案例七></案例六></案例五></案例四></案例三></案例二></案例一></中华人民共和国民法典></中华人民共和国民法典>

2023-03-03

Viewpoint... "Land Expropriation Social Stability Risk Assessment" business development and operational guidelines.

1. Law and Policy Provisions on Risk Assessment of Social Stability in Land Expropriation In May 2010, the General Office of the State Council issued the "Emergency Notice on Further Strict Management of Land Acquisition and Demolition and Effectively Safeguarding the Legal Rights and Interests of the People" (hereinafter referred to as the "Notice"), requiring that experts should be organized to demonstrate before the land acquisition and relocation project is established, and all sectors of society should be widely solicited. The opinions of the requisitioned people are to conduct a risk assessment of land acquisition and social stability. Since then, the land acquisition risk assessment system has been formally incorporated into the land acquisition system. Article 12 of the regulations on Housing expropriation and compensation on State-owned Land issued in January 2011 stipulates: "before the people's governments at the municipal and county levels make decisions on housing expropriation, they shall conduct a risk assessment of social stability in accordance with the relevant provisions." The promulgation of the regulations further regulates the development of social stability risk assessment of housing expropriation on state-owned land. The newly revised Land Administration Law, promulgated in January 2020, stipulates in its 47th chapter: "Where the State expropriates land, the local people's government at or above the county level shall, after approval in accordance with legal procedures, make an announcement and organize its implementation. Where the local people's government at or above the county level intends to apply for land expropriation, it shall carry out a survey of the current situation of the land to be expropriated and a risk assessment of social stability." Thus, the "social stability risk assessment" work as a necessary procedure in the process of land expropriation is determined in the form of legislation. The Market Prospect of 2. "Land Expropriation Social Stability Risk Assessment" and the Prospect of Government Standard Guidelines The future "land expropriation social stability risk assessment work, issued" land expropriation social stability risk assessment report "will be a large service market. And for the land expropriation market, which often reserves tens of billions of dollars, the remuneration for work in this area will also be expensive, and the market prospect is self-evident, so I won't repeat it. After the promulgation of the new land management law, local government departments have attached great importance to it. Many cities and prefectures have issued normative documents such as "Measures for Social Stability Assessment of Land Expropriation" in accordance with the provisions of the new land management law. On March 27, 2020, the people's Government of Zibo City issued the "Measures for Social Stability Risk Assessment of Land Expropriation in Zibo City" Zi Zheng Ban Zi [2020] No. 36, the Jinan Municipal Government issued the "Jinan City Major Issues Social Stability Risk Assessment and Resolution System" in accordance with the central government's "proposed work idea of" moving forward "to resolve conflicts and disputes", combined with its own actual situation, and proposed that "it is easy to cause conflicts. Introduce a risk assessment mechanism before major projects and decisions". In 2012, the "Opinions on Further Improving and Improving the Social Stability Risk Assessment and Resolution Mechanism for Major Issues" was issued again, using social stability assessment work to predict the hidden dangers of instability that may affect social stability caused by major projects and decision-making, so as to accurately Analyze the social stability situation and the root causes of risks after the implementation of the project, and through early intervention and early work, strive to resolve conflicts and disputes in the bud and initial state. Preventing and resolving social contradictions has become the top priority of the work of party committees and governments at all levels, and conducting social stability risk assessment on major issues has become an important measure for risk management in various localities in recent years. Feasibility Analysis of 3. Law Firms Involved in "Land Expropriation Social Stability Risk Assessment" Under the current legal provisions and policies, there are no mandatory or clear requirements on qualifications. Generally speaking, engineering consulting units, law firms with social stability risk assessment business, social stability risk assessment companies/centers established in individual places, and some environmental assessment agencies are all engaged in this work. As the most important legality review and rationality review in the assessment content, the law firms of other institutions have more authority and advantages in the aspects of investigation and evidence collection and risk resolution in risk assessment work. The natural legal attributes of law firms and lawyers determine that their participation in the social stability risk assessment of land acquisition is better than other intermediaries. In addition, land acquisition according to law is also a part of administration according to law. As a local government, lawyers engaged in government legal services and land acquisition laws are more likely to participate in the social stability risk assessment of land acquisition projects, put forward relevant opinions or suggestions, and participate in the preparation of risk assessment plans and the identification of risk levels. Therefore, the participation of law firms and lawyers in the social stability risk assessment of land acquisition is also the need of the government's administration according to law. The work of "land expropriation social stability risk assessment" has a fixed template and process, which is not complicated. Lawyers are involved in the work field of "land expropriation social stability risk assessment", which has broad prospects and will make great achievements! 4. Law Firm's Market Development for "Land Expropriation Social Stability Risk Assessment" In practice, the stability maintenance office of the local government is generally the government department in charge of "social stability risk assessment". Some places have begun to establish a database of social stability risk assessment institutions to register and manage social stability risk assessment institutions. The "Zibo City Land Acquisition Social Stability Risk Assessment Measures" stipulates that under the leadership of the district and county government, the town (street) where the land acquisition project is located is the main body of the assessment, and is responsible for the social stability risk assessment of land acquisition. And issue a social stability risk assessment report; natural resources, letters and visits, public security and other departments and units, as well as the town (street) and village (residential) where the land acquisition project is located, implement the social stability risk assessment of land acquisition within the jurisdiction; the natural resources department of each district and county shall be responsible for supervising the implementation of the social stability risk assessment of land acquisition. The unit applying for land use shall submit the social stability risk assessment report to the natural resources department and report to the political and legal committee of the district and county in a timely manner. The ''Jinan City Major Events Social Stability Risk Assessment and Resolution System'' stipulates that the joint offices at all levels, the Stability Maintenance Office, and the Letters and Calls Bureau, as the filing agencies, perform the filing management responsibilities, and resolve the social stability risk assessment and resolution of major events at the same level and the next level Supervise and guide the filing work. Operational Guidelines for 5. Lawyers to Conduct "Social Stability Risk Assessment of Land Expropriation" The social stability risk assessment of land expropriation refers to the systematic investigation, scientific prediction, analysis and evaluation of the factors that may affect social stability before the land expropriation project is formulated, implemented or approved, and the risk response strategies and plans are formulated, so as to effectively avoid, prevent and control the social stability risks that may arise during the implementation of the land expropriation project, and ensure the smooth implementation of the land expropriation project. Basic Principles of Social Stability Risk Assessment for (I) Land Expropriation The social stability risk assessment of land requisition shall adhere to the principles of "people-oriented, administration according to law, territorial management, hierarchical responsibility and scientific decision-making. Main Contents of Social Stability Risk Assessment of (II) Land Expropriation 1) Legality. Whether the decision-making and implementation of land acquisition projects comply with the the People's Republic of China Land Management Law and its supporting administrative regulations, local regulations and rules, whether they comply with the normative documents and other policy documents formulated by the state and the province, whether they comply with legal procedures, and whether the declaration requirements are complete, true and effective. 2. Reasonableness. Whether the decision-making and implementation of land acquisition projects are in line with Xi Jinping's new era of socialism with Chinese characteristics, whether they are in line with the short-term and long-term plans for economic and social development in the region, land and space planning (overall land use planning, urban and rural planning) and special plans, whether they will lead to comparisons between different regions, industries and groups, and whether they reflect the wishes of the majority of the people and whether they follow the principles of openness, fairness and justice, whether or not to take into account the immediate and long-term interests of the masses. 3. Feasibility. Whether the decision-making and implementation of land acquisition projects have undergone strict feasibility studies, whether the matters required by the masses for hearings have been heard, whether the measures have been perfected, whether the decision-making plan has fully considered the acceptance of the masses, whether it exceeds the affordability of the majority of the masses, and whether It is accepted and supported by the majority of the masses. 4-Security. Whether the preparations for the land acquisition project are sufficient, whether the compensation and resettlement fees for land acquisition have been raised and implemented, whether the publicity of the compensation and resettlement policies for land acquisition is in place, and whether the resettlement channels for land-expropriated farmers can be implemented. 5. Controllability. Whether the decision-making and implementation of the land acquisition project has caused mass incidents and seriously affected social stability, whether the implementation of the land acquisition project will cause serious dissatisfaction among the land-expropriated farmers, surrounding residents and relevant rights holders, whether the potential contradictions affecting stability are within the controllable range, whether measures to prevent and resolve social contradictions and corresponding emergency response plans have been formulated, and whether the publicity, explanation and public opinion guidance are sufficient. Risk Assessment Procedure for Social Stability of (III) Land Expropriation 1, accept the stability of the commission. Communicate with the project unit, collect project data and various approval procedures; In-depth analysis of the preliminary survey and summary of the project submitted by the project unit, preliminary sorting out the known stability-related problems of the project, and formulating the Work Plan; 2. Review the documents and approvals required for the project and check the legality risks of the project. 3. Carry out on-site inspection to find out the situation around the project, understand the land involved along the project, the specific location of the land, and the ground attachments of the expropriated land, etc., and obtain first-hand information on stability. 4, posting publicity, visits and other forms of work. Post announcements and publicity in the project area and surrounding crowded areas. The main contents of publicity: project collection scope, evaluation unit, publicity time, contact information, etc. The publicity period shall not be less than 30 days, and relevant stakeholders shall be informed of the implementation of the project as much as possible; To conduct risk factor investigation on the project to be implemented, and to solicit the demands and opinions of the investigated by means of on-site questionnaire survey, visiting survey and forum; The Social Impact Questionnaire is issued to investigate the support of the main items, the main concerns, etc. Visit and investigate the village committees and governments of grass-roots organizations to collect opinions and suggestions. Understand whether to support the implementation of the project and whether to actively cooperate with the superior department to deal with the problems arising from the project in a safe manner. For land acquisition projects that are highly controversial among the masses and require hearings, hearings shall be organized in accordance with the Provisions on Land and Resources Hearings (Order No. 22 of the Ministry of Land and Resources) to provide accurate and reliable first-hand risk prediction data for the social stability risk assessment of land acquisition. 5, analysis and judgment. The results and problems collected from the above work are sorted out, analyzed and judged separately, and the main stability-related factors that may occur during the implementation of the project are excluded. Sort out and analyze the opinions collected from all parties, verify the approval procedures of the proposed project, compare the unstable events caused by similar projects, and comprehensively investigate the possible risk factors of the proposed project; 6. Formulate measures to resolve and prevent. In view of the main stability-related problems in the investigation, we will work with the responsible unit of the project to formulate practical and feasible measures to resolve and prevent the stability-related factors to a large extent and reduce the intensity of the stability-related factors to a large extent. For major, complex and difficult matters, the opinions and suggestions of the competent department at a higher level shall be solicited as appropriate. 7, predict the risk level. On the basis of the previous work, the stability-related risks of each stability-related risk factor after taking mitigation and preventive measures are evaluated and predicted, the risk level of project implementation is assessed, and the project "Social Stability Risk Analysis Report" is formed. The risk level is divided into three categories: high risk, medium risk and low risk. Land-expropriated farmers, surrounding residents and relevant rights holders who have objections to the project and have particularly strong reactions, which may lead to large-scale mass incidents or individual extreme events, are of high risk; those who have objections and have relatively strong reactions, which may lead to conflicts, are of medium risk; individual objections are of low risk. 8, submitted for review. Submit the Social Stability Risk Analysis Report to the relevant competent government departments for review, and further improve the report based on the review results. 9. Filing. Send the improved Social Stability Risk Assessment Report to the relevant government authorities for the record, and deliver the final assessment report to the project unit. 6. Land Acquisition Social Stability Risk Assessment Report (Template) Basic information of (I) land acquisition projects It mainly includes the name and overview of the land acquisition project; the implementation unit of the land acquisition project; the organization and implementation of the land acquisition social stability risk assessment, the main person in charge and contact information. Analysis of Social Stability Impact of (II) Land Expropriation Project 1) Legality. First, whether the decision-making and implementation of land acquisition projects comply with the "the People's Republic of China Land Management Law" and its supporting administrative regulations, local regulations and rules; whether they comply with the normative documents and other policy documents formulated by the state and the province. Second, whether the land acquisition project conforms to the legal procedures. Third, whether the requisition project declaration requirements are complete, true and effective. 2. Reasonableness. First, whether the decision-making and implementation of land acquisition projects are in line with the short-term and long-term plans for the economic and social development of the region, land and space planning (overall land use planning, urban and rural planning) and special plans. second, whether the land requisition project reflects the will of the majority of the masses. Third, whether the land acquisition project follows the principles of openness, fairness and impartiality. Fourth, whether the land acquisition project can take into account the real interests and long-term interests of the masses. 3. Feasibility. First, whether the decision-making and implementation of land acquisition projects have undergone strict feasibility studies. Second, whether the matters that need to be heard or the masses require a hearing have been heard, whether the measures are perfect, and whether they are accepted and supported by the majority of the masses. 4-Security. First, whether the preparations for the land acquisition project are adequate. Second, whether the compensation and resettlement fees for land acquisition have been raised and implemented. Third, whether the publicity of land acquisition compensation and resettlement policy is in place. Fourth, whether the resettlement channels for land-expropriated farmers can be implemented. 5. Controllability. First, the decision-making and implementation of land acquisition projects, whether there are problems that cause mass incidents and seriously affect social stability. Second, whether the implementation of land acquisition projects will cause serious dissatisfaction among land-expropriated farmers, surrounding residents and relevant rights holders. Third, whether the hidden dangers of contradictions that may affect stability are within the controllable range. Fourth, whether there are countermeasures to deal with possible unstable factors. Problems Found in (III) Risk Assessment and Resolution Emergency plan for sudden mass incidents in (IV) 1. Organization and leadership (including name, unit, position, contact information, etc.) 2. Division of responsibilities 3. Disposal work plan Conclusion of Social Stability Risk Assessment of (V) Land Expropriation (VI) Special Notes

2023-03-03

"Construction enterprises" in the field of construction engineering administrative punishment risk (III)-safety production

In order to regulate the behavior of various subjects in the field of construction engineering in Shandong Province, the Department of Housing and Urban-Rural Development of Shandong Province issued the ''Administrative Penalty Discretion Bench'' of the Department of Housing and Urban-Rural Development of Shandong Province., Within the scope of the types and ranges of administrative penalties stipulated by laws and regulations, depending on the severity of the violations and the impact of the consequences, reasonably divide different levels of illegal situations, determine specific administrative penalty standards. The first two articles mainly describe the risks of administrative penalties that may be involved in the construction qualification, subcontracting, construction standards, etc. that "construction enterprises" pay attention to in the production and operation activities in the field of construction engineering: 1. construction enterprises do not take measures to eliminate the hidden dangers of construction safety accidents 2. the construction unit has not established a safety production management organization, equipped with full-time safety production management personnel, or has no full-time safety production management personnel on-site supervision during the construction of partial projects. The main person in charge, project leader, full-time safety production management personnel, operation personnel or special operation personnel of the 3. construction unit shall engage in relevant work without safety education and training or unqualified assessment. 4. The construction unit fails to set up obvious safety warning signs at the dangerous parts of the construction site, or fails to set up fire-fighting passages, fire-fighting water sources, fire-fighting facilities and fire-fighting equipment at the construction site in accordance with relevant national regulations. 5. The construction unit fails to provide safety protection equipment and safety protection clothing to the operators. 6. The construction unit shall use the technology, equipment and materials that endanger the construction safety that are eliminated or prohibited by the state. 7. the construction unit did not make a detailed description of the technical requirements for safe construction before construction. 8. the construction unit fails to take corresponding safety construction measures at the construction site according to different construction stages and changes in the surrounding environment, seasons and climate, or fails to implement closed enclosure at the construction site of the construction project in the urban area 9. The temporary buildings erected by the construction unit at the construction site do not meet the requirements for safe use 10. The construction unit fails to take special protective measures for adjacent buildings, structures and underground pipelines that may be damaged due to the construction of the construction project. Eleven, the construction unit safety protection equipment, mechanical equipment, construction machines and accessories before entering the construction site without inspection or inspection unqualified that put into use Twelve, the construction unit in the construction organization design did not prepare safety technical measures, construction site temporary electricity plan or special construction plan Thirteen, the construction unit to obtain the qualification certificate, reduce the safety production conditions Fourteen, the construction unit to obtain the safety production license to reduce the safety production conditions Fifteen, construction enterprises did not set up safety production management institutions in accordance with the provisions; Not in accordance with the provisions of full-time safety production management personnel; More dangerous parts of the project construction did not arrange full-time safety production management personnel on-site supervision; "safety management personnel" did not obtain the safety production assessment certificate and other illegal acts 16. Decoration and decoration enterprises violate the relevant national safety production regulations and safety production technical regulations, fail to take necessary safety protection and fire protection measures in accordance with the regulations, use open flame operations and carry out welding operations without authorization, or fail to take measures to eliminate the hidden dangers of construction safety accidents.

2023-02-24

Civil and Commercial Perspective... Can children claim maintenance during marriage?

2023-02-22

Viewpoint | Analysis of the prerequisites for the continued implementation of liability insurance liability

Basic case In 2021, the insured (application executor) company a enforced a case due to a private loan dispute with the executed person Guo mou. during the execution process, the outsider Cao mou claimed ownership of the property and garage located in a residential area of wenshang county under the name of the executed person Guo mou and filed an objection to the execution, resulting in the suspension of the execution of the case. on June 2, 2021, the insured (application executor) company a applied to the court for continued execution, and purchase continuing liability insurance from the insurance company. In the case of Cao's objection to the execution of the application, the court made a civil judgment on September 10, 2021, and the house involved in the case was not allowed to be executed. The intermediate court made a final judgment to reject the appeal and uphold the original judgment. On September 2, 2021, the court made an enforcement ruling that the ownership of the property in question under Guo's name belonged to the buyer, Fan. The ownership of the property involved is irreversible. Cao sued the court and requested the insurance company and the executor to compensate for his losses. Court decision results Defendant A Company shall compensate Cao for the loss of XX yuan within 10 days after the judgment comes into effect. The defendant's insurance company shall be liable to Cao for the debts determined in the first item of this judgment, within the scope of XX yuan for the part that cannot be performed in the legal enforcement of the property of defendant a company. Referee Points 1. In this case, Cao raised an objection to the execution of the property involved. During the trial of the outsider's execution of the objection, after Company A insured with a qualified insurance company, the insurance company issued a policy guarantee to the court, and the court continued to execute the property involved in the case in accordance with the law, and the property involved in the case has now been executed. According to the final judgment of the outsider's execution of the objection, Company A applied to continue to execute the house mistake involved in the case. Company A requested the court to continue to execute the mistake and caused losses to Cao, and should be liable for compensation for Cao's losses. 2. Judging from the guarantee letter of the continued execution of the liability insurance policy issued by the insurance company and the compensation conditions specified in the policy, the insurance company shall judge the economic compensation liability of the insured in the people's court for the loss of the continued execution error in accordance with the law. If the insured fails to make compensation, the insurance company shall be liable for compensation within the compensation limit according to the agreement of the insurance contract. Legal basis The Supreme People's Court on the application<中华人民共和国民事诉讼法>Interpretation of Several Issues in the Implementation Procedure Article 16 During the trial of a lawsuit against an outsider's objection to execution, the people's court shall not punish the subject matter of execution. Where the executor of the application requests the people's court to continue the execution and provide a corresponding guarantee, the people's court may grant permission. If an outsider requests the lifting of the seizure, seizure or freezing, or if there is an error in the application for execution, causing losses to the other party, compensation shall be made. Lawyer's opinion The continued implementation of liability insurance does not reflect the premise of the principle of attribution of fault liability of the insured. Not only the terms of the insurance contract signed between the insurer and the insured do not reflect the principle of this rule, but after searching the court case, there is only one case involving the continued implementation of liability insurance at this stage, and the judgment made by the court is also based on the premise of execution error, regardless of whether the insured has subjective fault. Therefore, once the execution is wrong, the insured is very likely to bear the liability. In this case, is the insurer bound to bear the liability? According to the continued execution of the liability insurance clause and the continued execution of the liability insurance policy guarantee issued by the insurer to the court, the insurer must have the insurance liability at the same time: 1. The insured requests the court to continue the execution with errors, causing losses to the objector; 2. There should be an effective legal document to determine that the insured shall bear the economic compensation liability for the objector; 3. The insured fails to perform the compensation liability or fails to perform the compensation liability after the compensation liability after the execution procedure, at this time, the insurance talent is responsible for compensation within the compensation limit according to the insurance contract. Extended reading Litigation property preservation liability insurance means that the applicant signs an insurance product contract with the insurance company (insurer), and the insurance company uses the insurance product as collateral to guarantee the property preservation behavior of the litigant (insured). When the insured applies for error and should bear the economic compensation liability according to law, the insurer shall be responsible for compensation or advance payment according to the agreed compensation limit, Then realize the purpose of litigation preservation guarantee. Continued enforcement liability insurance is an insurance that specifically provides service protection for the executor in an enforcement case to continue to enforce the liability. The applicant for enforcement shall provide a policy guarantee issued by an insurance company approved by the court, and after examination by the court, the outsider shall continue to dispose of the property without suspending the execution procedure at the same time as the execution objection or the execution objection, so as to ensure that the legitimate rights and interests of the parties are fulfilled in a timely manner. The insurance is a new type of insurance, which was first born in Beijing Haidian Court on May 24, 2019. This is Beijing's first and the first insurance industry to prevent delays in the implementation of judicial liability insurance products. Litigation property preservation liability insurance and continued execution liability insurance are both an insurance contract signed between the policyholder and the insurance company, and then the two sides establish an insurance contract relationship. They are insurance companies to the court to provide policies or letters of guarantee as proof of security, from the form of the policy guarantee, with some of the characteristics of the guarantee guarantee, but in essence is not a guarantee guarantee relationship. First, the insurer does not appear as a guarantor, and the nature of the insurance policy guarantee payment expenses belongs to insurance claims; second, the insurance contract of this kind of insurance generally has a large number of exemption clauses, which conflict with the promise of unconditional liability in the insurance policy guarantee and do not meet the basic requirements of guarantee guarantee; third, if the insurance policy guarantee is regarded as the guarantee provided by the insurance company, however, if the guarantee does not comply with the current law, because according to the law, the provision of the guarantee requires the authorization or resolution of the shareholders' meeting or the board of directors, but in reality, there are no relevant documents authorized or resolved by the shareholders' meeting or the board of directors in the relevant cases. The insurance liability of litigation property preservation liability insurance is that during the insurance period, if the respondent suffers losses due to the wrong application of the insured's litigation property preservation, the compensation liability borne by the insured according to the judgment of the court shall satisfy at the same time: 1. The property preservation respondent has indeed suffered losses; 2. There is a causal relationship between the loss of the property preservation respondent and the error of the insured's litigation preservation application; 3. The loss of the property preservation respondent was confirmed by the court judgment in force to confirm the specific amount of the loss. In this case, the insurer is responsible for compensation in accordance with the insurance contract. The insurance liability for the continued execution of liability insurance is that during the insurance period, due to the insured's error in requesting the people's court to continue the execution, causing losses to the person subject to execution, interested parties or outsiders, the people's court shall be in accordance with the People's Republic of China laws (excluding Hong Kong, Macao and Taiwan Regional laws, the same below) determine that the insured shall bear the economic compensation liability, and the insurer shall be responsible for compensation in accordance with the insurance contract. Continued enforcement of liability insurance In the policy guarantee submitted to the court, it is further clarified that the insurance liability is that during the enforcement process, the objector files an objection to the enforcement of the subject matter, resulting in the suspension of the enforcement. The insured applies to the people's court for continued enforcement and requests The people's court continues to execute the subject matter. If there is an error in the insured's request to the people's court to continue execution, causing losses to the objector, if the people's court decides in accordance with the law that the insured shall bear the economic compensation liability and the insured fails to pay compensation, the insurer shall be responsible for compensation in accordance with the insurance contract. Litigation property preservation liability insurance liability is based on the principle of attribution of fault liability of the insured, that is, the insurer's liability needs to have at the same time the subjective fault of the insured, the illegality of the insured's behavior, the existence of the fact of damage, the insured's illegal behavior and the damage consequences of the causal relationship between the four constituent elements. In practice, the case of the court after searching shows that the compensation for the liability of property preservation in litigation is based on the causal relationship between the insured's preservation behavior and the loss and the subjective intention or gross negligence of the insured to the property preservation as the elements and premise of the insurer's liability for damages. In the course of litigation, the parties submit an application for property preservation in accordance with the provisions of the Civil procedure Law, which is a manifestation of exercising their litigation rights granted by the law. It is not appropriate to simply judge whether the application is wrong on the basis of the final trial result of the case. The key is to see whether the insured has fulfilled the reasonable duty of care and whether the litigation request filed by the insured is legal and reasonable. The continued implementation of liability insurance does not reflect the premise of the principle of attribution of fault liability of the insured. Not only the terms of the insurance contract signed between the insurer and the insured do not reflect the principle of this rule, but after searching the court case, there is only one case involving the continued implementation of liability insurance at this stage, and the judgment made by the court is also based on the premise of execution error, regardless of whether the insured has subjective fault. Therefore, once the execution is wrong, the insured is very likely to bear the liability. In this case, is the insurer bound to bear the liability? According to the continued execution of the liability insurance clause and the continued execution of the liability insurance policy guarantee issued by the insurer to the court, the insurer must have the insurance liability at the same time: 1. The insured requests the court to continue the execution with errors, causing losses to the objector; 2. There should be an effective legal document to determine that the insured shall bear the economic compensation liability for the objector; 3. The insured fails to perform the compensation liability or fails to perform the compensation liability after the compensation liability after the execution procedure, at this time, the insurance talent is responsible for compensation within the compensation limit according to the insurance contract. Because the continued implementation of liability insurance is a new type of liability insurance, the time is short, the judicial jurisprudence is also very few, therefore, the liability insurance liability preconditions should be based on the principle of fault liability attribution, there is a lot of controversy, to be further discussed with the increase in the number of cases.</中华人民共和国民事诉讼法>

2023-02-21

Point of view... A brief analysis of the practical treatment of social security claims when bankrupt enterprises do not open social security accounts for employees.

Foreword Social insurance is at the core of the social security system, and the state also gives employers the legal obligation to pay social insurance for their employees in the form of legislation. In the case of enterprise bankruptcy, the enterprise will usually default on social insurance due to the pre-debt crisis, which leads to the inability to pay social insurance for employees in time, and usually the social security institutions will also protect the rights and interests of employees in the form of social security claims. However, some bankrupt enterprises have not opened social security accounts for their employees since the date of production and operation, and social security institutions are unable to declare claims because they have not opened accounts, and there is no express provision on how to deal with social security claims. The purpose of this paper is to analyze the practical treatment of social security claims when bankrupt enterprises do not open social security accounts for employees. 1. what is social security claims The expression of social security claims does not appear directly in the Enterprise Bankruptcy Law and the judicial interpretation of the Bankruptcy Law, but in the second paragraph of Article 113 of the Enterprise Bankruptcy Law, the expression "social insurance expenses owed by the bankrupt in addition to the provisions of the preceding paragraph" appears, which is the provision of social security claims. Social security claims are formed in social insurance costs, but social security claims and social insurance costs cannot be completely equated. According to Article 113 of the Enterprise Bankruptcy Law, social security claims are closely related to employee claims. Therefore, the scope of social security claims can be determined by employee claims. The calculation formula of social security claims can be expressed as follows: social security claims = social insurance fees payable by the unit (excluding the unit's withholding of the individual's contributions)-the social insurance fees paid by the unit shall be included in the basic old-age insurance and basic medical insurance fees of the employee's personal account. Thus, the social security claim can be understood as the social insurance fee paid by the unit into the co-ordination account. The significance of 2. enterprises to pay social insurance. The first paragraph of Article 58 of the "Social Insurance Law" stipulates that the employer shall apply to the social insurance agency for social insurance registration for its employees within 30 days from the date of employment. If the social insurance registration is not completed, the social insurance agency shall approve the social insurance premiums that it should pay. Article 72 of the "Labor Contract Law" stipulates that the social insurance fund shall determine the source of funds according to the type of insurance, and gradually implement social pooling. Employers and workers must participate in social insurance and pay social insurance premiums in accordance with the law. It can be seen that the employer's payment of social insurance for employees in accordance with the law is a legal obligation of the employer, which is mandatory. This obligation is not exempted for any reason, and it is not changed according to the wishes of the parties. The promise made by the employee to the employer not to pay social insurance is also invalid due to violation of mandatory legal provisions. Taking basic old-age insurance as an example, the first paragraph of Article 10 of the Social Insurance Law stipulates that employees shall participate in basic old-age insurance, and employers and employees shall jointly pay basic old-age insurance premiums. The first paragraph of Article 11 of the "Social Insurance Law" stipulates that the basic pension insurance shall be combined with social pooling and individual accounts. The first paragraph of Article 12 of the "Social Insurance Law" stipulates that the employer shall pay the basic pension insurance premiums in proportion to the total wages of its employees as prescribed by the state, and record them in the basic pension insurance pooling fund. The second paragraph stipulates that employees shall pay basic old-age insurance premiums in proportion to their wages as prescribed by the State, which shall be credited to their personal accounts. The social insurance fee paid by the employer has a double significance. On the one hand, part of the social insurance fees paid by employers are transferred to the individual accounts of employees, which is "private"; on the other hand, part of the social insurance fees paid by employers are transferred to the overall planning account, which is uniformly allocated and managed within a certain range. to achieve regional adjustment, protect social and public interests, with "mutual aid". It can be seen that social insurance has the function of social security. Employers pay social insurance, which is not only a way to realize the social security needs of employees, but also a way for the state to protect the basic human rights of all people through social risk sharing. The payment of social insurance by enterprises has dual significance. It has both corporate responsibilities and social responsibilities. It is conducive to resolving the contradiction between the rich and the poor in society, ensuring the basic living standards of the people, truly realizing people-oriented, and building a harmonious socialist society. The practical analysis of social security claims when the 3. bankruptcy enterprise does not open a social security account for its employees. The Enterprise Bankruptcy Law stipulates that employers should pay social insurance for their employees, which is a mandatory obligation. In a bankrupt enterprise, when the bankrupt enterprise fails to open a social security account for its employees during the normal production and operation period, it has violated the law. When the enterprise goes bankrupt, the bankrupt enterprise should pay the social security for the employees and safeguard the legitimate rights and interests of the employees. However, in practice, the bankrupt enterprise has been in a state of insolvency, has obviously lack of solvency, the lack of funds available to the enterprise, especially in the face of many creditors, how the enterprise fair settlement of claims, to protect the legitimate rights and interests of each creditor has become a top priority. However, social security claims are only one of the many types of claims, and there is no uniform standard for the payment of social security claims in practice. Below, I will comb the face of bankrupt enterprises did not open social security accounts for employees, the administrator (or liquidation group) of the practical path choice. Path 1: When a bankrupt enterprise does not open a social security account for its employees, it cannot pay social insurance for its employees. Case 1: Due to the bankruptcy of the enterprise did not open a social security account for employees, do not support the payment of social security. In Huang Wuchun and Yingshan County Zhongneng Real Estate Co., Ltd., the civil judgment of the second instance of the dispute over the confirmation of employees' bankruptcy claims ((2020) Sichuan 13 Minzong No. 2139, Nanchong Intermediate People's Court of Sichuan Province) stated: ...... Zhongneng Company has not opened a medical insurance account in the medical insurance department and is now unable to repay the employees' medical insurance expenses to the medical insurance institution...... Case 2: Due to the bankruptcy of the enterprise did not open a social security account for employees, do not support the payment of social security for employees, but support compensation for losses. In the civil judgment of first instance on the dispute over the confirmation of bankruptcy claims of employees of Yang Ping and Mianyang Antelai Chemical Co., Ltd. ((2018) Sichuan 0792 Minchu No. 1971, Sichuan Mianyang High-tech Industrial Development Zone People's Court), it is stated:... The defendant Antelai Company failed to handle the social basic pension insurance premiums for the plaintiff from January 2013 to September 2014, which is illegal and should be paid according to law. However, after writing to the relevant social security department, the court learned that because the defendant did not open a social security account for the employees, and it has been many years since then, the social security department has been unable to complete the social insurance procedures for the plaintiff. Accordingly, in accordance with Article 118 of the General Principles of the People's Republic of China Civil Law, "Civil subjects shall enjoy claims in accordance with the law. Creditor's right is the right of the obligee to request a specific obligor to act or not to do a certain act due to contract, tort, unjust enrichment and other provisions of the law, and Article 1 of the (III) on the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of labor dispute cases, if a dispute arises over a claim for compensation from the employer, the people's court shall accept it." The plaintiff Yang Ping asked the defendant Antelai Company to give corresponding compensation, the court to support..... Case 3: Although the bankrupt enterprise has not opened a social security account for its employees, it confirms the basic old-age insurance and basic medical insurance that should be transferred to the employee's personal account. In Zheng Qishu and Kaili Economic Development Zone Baoheng Real Estate Development Co., Ltd. employee bankruptcy creditor's rights confirmation dispute first instance civil judgment ((2019) Qian 26 Minchu No. 122, Guizhou Qiandongnan Miao and Dong Autonomous Prefecture Intermediate People's Court) stated:... On whether Baoheng Housing Development Company should deposit endowment insurance and medical insurance for Zheng Qishu. The Social Insurance Law stipulates that employees shall participate in social insurance, and employers and employees shall jointly pay basic old-age insurance premiums and basic medical insurance premiums in accordance with state regulations. Therefore, Baoheng Housing Development Company for the company's employees Zheng Qishu to pay basic old-age insurance premiums, basic medical insurance premiums is its legal obligation. Because Baoheng Housing Development Company did not go to the social insurance department to open a personal insurance account for Zheng Qishu and pay insurance premiums, Zheng Qishu requested to confirm that Baoheng Housing Development Company enjoys the basic pension insurance premiums and basic medical insurance premiums that should be transferred to the personal account, Should be supported...... Case 4: The bankrupt enterprise has not opened a social security account for its employees and cannot confirm the basic old-age insurance and basic medical insurance that should be transferred to the employee's personal account. The civil judgment of the second instance of the dispute over the confirmation of bankruptcy claims between Gao Ruifeng and Weihai Chengxin Medical Science and Technology Development Company ((2014) Weimin San Zhong Zi No. 160, Weihai Intermediate People's Court of Shandong Province) states: ...... On the personal issue of whether the basic old-age insurance and basic medical insurance expenses that should be transferred to the employee's personal account should be paid to the appellant Gao Ruifeng, Article 48, paragraph 2 of the Bankruptcy Law stipulates, the wages and medical, disability subsidies, and pension expenses owed by the debtor to the employees, and the basic pension insurance and basic medical insurance expenses that should be included in the employee's personal account, shall be listed and publicized by the administrator after investigation. This article determines that the basic old-age and basic medical insurance expenses owed by the bankrupt enterprise that should be transferred to the employee's personal account shall be the employee's claim, but the amount shall be transferred to the employee's personal account and not directly paid to the employee himself. Therefore, the appellant Gao Ruifeng's request to pay the money directly to his personal lack of legal basis, the original trial on this basis to reject his claim is not improper, should be maintained in accordance with the law. What the author needs to explain is that the above path 1 occurred before, and each place issued a one-time pension insurance premium policy (taking Shandong Province as an example, on December 31, 2019, Shandong Provincial Department of Human Resources and Social Security, The Shandong Provincial Department of Finance jointly issued the "Notice on Improving the Basic Pension Insurance Payment Policy for Employees" (Luren Social Regulation [2019] No. 13), stipulating that bankrupt enterprises owe pension insurance premiums, it shall be paid off in accordance with the provisions in the income from the realization of the assets of the bankrupt enterprise. If there are still arrears after the assets are realized and paid off, for the part of the arrears that cannot be paid off, after the employee's personal payment and the enterprise's payment should be transferred to the employee's personal account (including interest), the bankrupt enterprise liquidation team can hold the court's bankruptcy ruling, The enterprise's assets and liabilities statement and other materials, apply to the social insurance agency in the insured place to write off the basic pension insurance premiums in arrears...) When the bankrupt enterprise has not opened a social insurance account for employees, A one-time payment of basic old-age insurance can be made. Path 2: When a bankrupt enterprise does not open a social security account for its employees, it can pay back pension insurance for their employees, but cannot pay back medical insurance. 1. Since the implementation of the "Notice on Improving the Basic Pension Insurance Payment Policy for Employees" (Luren She Gui [2019] No. 13), when a bankrupt enterprise has not opened a social security account for its employees, it can make a one-time payment of pension insurance. The basic approach is: If the basic pension insurance is paid as an employee of the unit, the unit generally submits a written application and provides proof materials that can prove the labor relationship between the employee and the unit, such as labor contracts, employee rosters, wage payment vouchers, etc., employee identification documents, etc. Among them, if the one-time payment exceeds three years, legal documents issued by the people's court, the audit department, the administrative department implementing labor supervision or the labor and personnel dispute arbitration committee shall be provided. According to this provision, when the bankrupt enterprise does not open a social security account for its employees, it can pay back the old-age insurance. 2. At present, there is no relevant policy to support bankrupt enterprises to pay back medical insurance for employees when they have not opened medical insurance accounts for employees. After the author consulted a number of medical insurance institutions, medical insurance institutions feedback in the bankrupt enterprises did not open medical insurance accounts for employees, can not pay medical insurance for employees. Concluding remarks It is the legal obligation of the employer to pay social insurance for its employees in accordance with the law, and it shall not be exempted because the employer is in any situation. Under the current one-time supplementary pension insurance system, employers should open social security accounts for employees in a timely manner, pay social insurance, protect the legitimate rights and interests of employees in a timely manner, and avoid the problem of later payment of arrears and late fees.

2023-02-21

Viewpoint | Choice of SOE Procurement

Procurement is an important link in the business activities of state-owned enterprises, and it is also a key link in risk-prone. The special status and role of state-owned enterprises in China's national economy make them have the characteristics of commercial and public welfare at the same time, and the procurement of state-owned enterprises also has the dual attributes of enterprise procurement and public procurement. Fairness and efficiency are important aspects that should be considered in the procurement of state-owned enterprises. The second paragraph of Article 18 of the interim measures for the Administration of State-owned Capital and Finance of Enterprises (Caiqi [2001] No. 325) stipulates: "the procurement of bulk raw and auxiliary materials or commodity materials, the purchase and construction of fixed assets, and the construction of projects shall generally be carried out in accordance with the principles of openness, fairness and fairness, and shall be carried out by way of bidding," which points out the basic principles that should be followed in the procurement of state-owned enterprises. With the development of the times and the increasing internal demand of enterprises to improve quality and efficiency, the procurement of state-owned enterprises should not only ensure fairness and justice, effectively prevent risks, but also reduce procurement costs and improve procurement efficiency. Among them, according to the specific situation of procurement and the characteristics of different procurement methods, flexible selection of appropriate procurement methods is one of the procurement strategies, but also in the procurement of state-owned enterprises to achieve fairness and efficiency in the coordination of an important way. Relevant documents 1. the procurement of state-owned enterprises A prominent problem in the field of state-owned enterprise procurement is the lack of applicable laws and regulations. The "Tendering and Bidding Law" and the "Government Procurement Law" do not fully cover the procurement activities of state-owned enterprises. The administrative regulations of the department on the procurement of state-owned enterprises are relatively general and the operability is not strong. In this case, the China Federation of Logistics and Purchasing, together with several research institutions and state-owned enterprises, has successively formulated the "State-owned Enterprise Procurement Operation Specification" (T/CFLP 0016-2019) and the "State-owned Enterprise Procurement Management Specification" (T/CFLP 0027-2020). The former stipulates the procurement process and general requirements of state-owned enterprises, as well as the general conditions and procedural rules of various procurement methods, the latter stipulates the management structure, procurement implementation, performance evaluation, supervision and management of state-owned enterprises. The two complement each other and are used together to form the system guidelines for the procurement management and operation of state-owned enterprises, and fill the state-owned enterprise procurement regulations. Blank. Contents and Methods of Procurement of State-owned Enterprises in 2. According to the Code of Practice for Procurement of State-owned Enterprises (T/CFLP 0016-2019) and the Code of Management for Procurement of State-owned Enterprises (T/CFLP 0027-2020), the procurement of state-owned enterprises includes project procurement and operational procurement. Project procurement refers to the procurement activities implemented to achieve the established objectives of enterprise project management, which is an important part of project management, such as engineering projects, technical transformation projects, equipment and facilities projects, one-time operation and maintenance projects of enterprises and other procurement activities. Its characteristics are one-time and systematic. Operational procurement refers to the repetitive procurement activities implemented to meet the objectives of enterprise operation and management and maintain daily business activities, which is an important part of enterprise operation and management. Operational procurement can be further divided into operational procurement directly related to production and operational procurement indirectly related to production. The former such as enterprise raw materials, accessories procurement, parts, components, assembly procurement, daily production maintenance and other procurement activities. The latter such as consulting services, labor services, information services, warehousing services and other procurement activities. The procurement methods of state-owned enterprises mainly include bidding procurement, bidding procurement, consulting procurement, cooperation negotiation, competition negotiation, competition negotiation, single-source direct procurement and multi-source direct procurement. For different procurement content, the applicable procurement methods are also different. Article 7.3.1 of the "State-owned Enterprise Procurement Management Code" stipulates the principle of selecting procurement methods, that is, enterprises should choose the corresponding procurement methods according to the characteristics of the project. The Choice of Purchasing Methods of 3. State-owned Enterprises (I) bidding procurement 1. Compulsory bidding system Since bidding procurement can enable many bidders to participate in fair competition, encourage tenderers to obtain the best goods, projects or services at the lowest or lower price, ensure the reasonable and effective use of state-owned funds and other public funds, and improve economic and social benefits, certain types of procurement projects within the scope of the law, or procurement projects that reach a certain scale, must be purchased through bidding. The relevant legal provisions of the compulsory bidding system mainly include the "Tendering and Bidding Law", "Regulations on the Implementation of the Tendering and Bidding Law", "Provisions on Projects that Must Be Tested", "Provisions on the Scope of Infrastructure and Public Utilities Projects That Must Be Tested", etc. The above provisions delineate the scope of application of compulsory bidding procurement from the dimensions of procurement object, project type, source of funds, procurement scale, etc. (1) Purchase object dimension The procurement object of compulsory bidding is the construction project. According to Article 2 of the Regulations on the Implementation of the Bidding and Bidding Law, construction projects refer to projects and goods and services related to project construction. The project refers to the construction project, including the new construction, reconstruction, expansion of buildings and structures and related decoration, demolition, repair, etc.; the goods related to the construction of the project refer to the equipment and materials that constitute an integral part of the project and are necessary for the realization of the basic functions of the project; the services related to the construction of the project refer to the survey, design, supervision and other services required for the completion of the project. According to the second paragraph of Article 2 of the "Regulations on the Quality Management of Construction Projects", construction projects refer to civil engineering, construction projects, pipeline and equipment installation projects and decoration projects. (2) Item Type Dimension The provisions on the scope of compulsory bidding from the project type dimension are mainly reflected in the Provisions on the Scope of Infrastructure and Public Utilities Projects that must be tendered. According to the regulations, energy infrastructure projects, transportation infrastructure projects, communication infrastructure projects, water conservancy infrastructure projects, urban rail transit and other urban construction projects are related to social public interests and public safety, and must be tendered in accordance with the law. (3) Funding source dimension From the perspective of the source of funds, all or part of the use of state-owned funds investment or state financing projects and the use of international organizations or foreign government loans, aid funds projects must be tendered in accordance with the law. The provisions of Article 2 of the "Regulations on Engineering Projects that Must Invest in Bidding" are further refined. Projects that use state-owned funds or state financing in whole or in part refer to projects that use budget funds of more than 2 million yuan and the funds account for more than 10% of the investment. Projects in which state-owned enterprises and institutions have funds that hold a controlling or dominant position. Projects using loans and aid funds from international organizations or foreign governments refer to projects using loans and aid funds from international organizations such as the World Bank and the Asian Development Bank, as well as projects using loans and aid funds from foreign governments and their institutions. (4) Procurement scale dimension The provisions on the scope of compulsory bidding from the dimension of procurement scale are mainly reflected in the Provisions on Projects that Must Be Tested. The estimated price of construction single contract is above 4 million yuan, the estimated price of procurement single contract for important equipment, materials and other goods is above 2 million yuan, the estimated price of procurement single contract for survey, design, supervision and other services is above 1 million yuan, and the procurement of survey, design, construction, supervision and important equipment and materials related to engineering construction can be combined in the same project, if the total estimated contract price meets the standards specified in the preceding paragraph, bidding must be conducted. 2, may not bid the statutory circumstances In the presence of statutory circumstances, even if the project falls within the scope of the compulsory bidding system, it may not be tendered in accordance with the law. According to the Law on Tendering and Bidding, the Regulations on the Implementation of the Law on Tendering and Bidding, and the Measures for Tendering and Bidding for Construction Projects, it mainly includes the following situations: (1) Special projects involving national security, state secrets, emergency rescue and disaster relief; (2) It belongs to special circumstances such as the use of poverty alleviation funds to implement work-for-work relief and the need to use famous agricultural workers; (3) The need to adopt irreplaceable patents or know-how; (4) The purchaser can construct, produce or provide on its own according to law; (5) The franchise project investors who have been selected through bidding can build, produce or provide on their own in accordance with the law; (6) It is necessary to purchase works, goods or services from the original winning bidder, otherwise it will affect the construction or functional supporting requirements; 3. Special provisions for invitation to tender Where there are statutory circumstances, projects that should be subject to public bidding in accordance with the law may be invited to tender. According to the "Regulations on the Implementation of the Bidding Law" and the "Measures for Bidding and Bidding for Construction Projects", the following situations are mainly included: (1) Technical complexity, special requirements or limited by the natural environment, only a small number of potential bidders to choose from; (2) The cost of using the open tender method accounts for an excessive proportion of the project contract amount; (3) Construction projects involving national security, state secrets or emergency rescue and disaster relief are suitable for bidding but not for public bidding. 4. Voluntary bidding Due to the positive role of bidding in promoting fair competition, regulating transaction behavior, and enhancing economic benefits, the purchaser can voluntarily choose bidding as a procurement method for projects that are not required by law. It is applicable to procurement projects with clear procurement requirements, competitive conditions for the subject matter of the procurement, permitted procurement time, open procurement costs, and reasonable bidding transaction costs. (II) bidding inquiry ratio procurement 1. Bidding procurement Competitive procurement refers to the procurement needs are clear, the purchaser in accordance with the established rules and methods of one or more price comparisons to finalize the procurement of the contract counterpart. Competitive procurement is applicable to procurement with clear procurement needs, uniform specifications and models, sufficient supply, stable price or clear price formation mechanism. Among them, the procurement that allows one quotation shall be the procurement of goods that are not individually customized or provided to the purchaser, and the value of the existing fixed market is not high and the frequency is not high; the procurement that allows multiple quotations also includes the procurement of goods or services with competitive conditions customized for the enterprise. The purchaser shall, to the extent feasible, purchase relatively low-value procurement items from as many suppliers as possible through competitive bidding. State-owned enterprises need to pay attention to the differences between the bidding (inquiry) procedures stipulated in the Government Procurement Law: First, the purchaser can form a review team according to the complexity and technical requirements of the project, and whether it is necessary to hire experts from the enterprise advisory expert committee to participate in the review team is decided by the purchaser; Second, state-owned enterprises can require suppliers to quote once and cannot change the quotation, or can allow multiple quotations according to regulations; third, the receipt of only one or two quotations without exceeding the procurement budget cannot be considered invalid. 2. Inquiry and procurement Inquiry procurement refers to a procurement method in which the procurement requirements are clear and the purchaser allows the bidder to quote multiple times in accordance with the established procedures and finally determine the contract counterpart after evaluation. If one of the following conditions is met, the inquiry-based procurement method can be adopted:(1) projects, goods and services that have clear procurement requirements but do not meet the bidding conditions, including small and medium-sized projects that are not subject to bidding within the enterprise, a few projects with strong confidentiality that are not suitable for public bidding or invitation to bid, and projects that are located in remote areas and few construction units come to bid. (2) small and medium-sized simple projects after the failure of the tender. The characteristics of inquiry ratio procurement are that it has certain flexibility on the basis of maintaining competitiveness, and the procedures are simpler and more efficient. In the process of inquiry ratio procurement, the purchaser inquires, compares, communicates and negotiates with suppliers on various procurement factors and content details, and can also modify non-substantive terms and require suppliers to re-quote to maximize their own interests. 3 The difference between the two For example, both methods require clear procurement requirements and apply to standardized, simple and low-value procurement projects. The difference is that competitive procurement is more suitable for low-value goods with a higher degree of standardization and less frequent procurement, and that the requirements for standardization of the subject matter are lower than those for competitive procurement, and are generally applicable to works, goods and services. In addition, the focus of competitive procurement is on "price", that is, price competition on the premise of meeting demand; the focus of inquiry procurement is to select the best solution through dialogue and comparison, and to compete on this basis. Negotiate procurement (III) consultation 1. Negotiations on cooperation Cooperative negotiation refers to the procurement method in which the procurement needs are clear but the bidding conditions are not available, and the contract for goods or services can only be signed with the supplier through negotiation and the strategic partnership can be established. The cooperative negotiation procurement method can be adopted if one of the following conditions is met:(1) Procurement that requires long-term stable supply and cannot be met by bidding or other procurement methods. (2) Need to communicate face-to-face with specific suppliers to negotiate long-term cooperation in procurement. Cooperative negotiation is the main way of enterprise strategy negotiation. Generally applicable to the procurement of strategic materials, bottleneck materials or supply chain needs. Especially when it comes to strategic materials, bottleneck materials or negotiations with the only supplier, the purchaser's position is at a disadvantage, at this time should pay attention to prevent procurement risks, such as limiting the contract share of the largest supplier, establishing a long-term mechanism for material reserves, and actively formulating emergency plans to find alternative partners. Especially for state-owned enterprises, there are many external unstable and uncertain factors such as global epidemics, economic and trade policy adjustments in major countries, and even political conflicts in some countries, which have a great impact on the import customs clearance and logistics of key raw materials and important parts of enterprises. Under the background of the era, supply chain thinking should be used to strengthen procurement management and improve work, prevent procurement risks, and ensure the safety and stability of the supply chain. 2. Competition negotiations Competitive negotiation means that the purchaser negotiates with qualified suppliers on the procurement of projects, goods or services with clear procurement functional requirements and certain competitive conditions, the suppliers submit response documents and final quotations in accordance with the requirements of the negotiation documents, and the purchaser determines the procurement method of the transaction person from the candidates proposed by the negotiation team. Competition negotiation can be adopted if one of the following conditions is met:(1) there is an urgent need for the subject matter of procurement, and it is difficult to meet the production and operation needs of the enterprise by bidding or other procurement procedures, and the urgent need is not caused by the delay or predictability of the purchaser;(2) it is difficult to meet the needs of the purchaser by bidding or other procurement procedures for catastrophic events or favorable business opportunities;(3) the purchaser determines, other procurement methods are not suitable for protecting the basic national security or the core interests of the enterprise. Competition negotiation, a procurement method, is mainly used to solve problems such as time-critical and urgent needs. Unlike cooperative negotiations, competitive negotiations require certain competitive conditions and strict procedures. 3. Competition consultation Competitive negotiation refers to the complex projects with vague procurement requirements or requiring suppliers' opinions and certain competitive conditions. The purchaser and qualified suppliers discuss and negotiate on the procurement of projects, goods and services, and finally improve and determine the procurement documents and contract terms. The purchaser conducts financial negotiations with suppliers in turn according to the negotiation report and negotiation order submitted by the consultation group after evaluation, the first supplier to reach an agreement is the supplier's procurement method. Meet one of the following conditions

2023-02-20

Viewpoint... Cross-border financing observation-the new rules on foreign debt take effect tomorrow, where are the changes? (I).

On January 5, 2023, the National Development and Reform Commission issued Order No. 56, officially promulgating the "Administrative Measures for the Examination and Registration of Medium and Long-term Foreign Debt of Enterprises" (hereinafter referred to as the "Measures"). The "Measures" will come into effect on February 10, 2023. Since its implementation in 2015, the "Notice of the National Development and Reform Commission on Promoting the Reform of the Registration System for the Registration of Foreign Debt Issued by Enterprises" (hereinafter referred to as "Document No. 2044") will be invalidated and abolished at the same time, marking a new era in the supervision of corporate foreign debt issuance. The Measures have six chapters and 37 articles. Compared with Document No. 2044, it reflects the policy guidance of improving the management system, improving the quality and level of management, and effectively preventing foreign debt risks, improving the management of overseas bond issuance, and strengthening monitoring and risk early warning. While strongly supporting enterprises to use global resource elements to expand domestic and foreign business, it has also played a positive role in optimizing the maturity structure of full-caliber foreign debt and effectively preventing foreign debt risks. This paper compares some of the highlights of the Measures with Document 2044 and attempts to make a brief analysis. 1. "notice" becomes "method" The nature of document No. 2044 is a "notice" and a normative document, while the National Development and Reform Commission clearly defined the "measures" as departmental regulations in answering reporters' questions on the "measures for the examination and Registration of medium-and long-term Foreign debts of Enterprises," and its effectiveness has been improved. 2. "record registration" adjusted to "audit registration" Document No. 2044 adopts the "record registration system management" for the issuance of foreign debt of enterprises, while the "measures" implement the "examination and registration management" for the foreign debt of enterprises that meet the conditions ". The difference between the term and the legal nature is different: "record registration" is not an administrative license, but only an act of administrative organ registration for reference; while the "examination and registration" in the "measures" is an administrative license (the annex to the notice of the General Office of the State Council on the comprehensive implementation of the list of administrative license items issued by the State Council No. 2 [2022] clearly lists "examination and approval of medium-and long-term foreign debt borrowing by enterprises" as an administrative license items). Nevertheless, both the "filing" of document No. 2044 and the "examination and registration" of the "measures" have set conditions for substantive examination. The audit criteria for "examination and registration" in the measures have become stricter, coupled with the impact of the rising cost of overseas financing caused by the continuous interest rate hike of the Federal Reserve, on August 26, 2022, after the National Development and Reform Commission issued the measures for the examination and Registration of medium-and long-term Foreign debts of Enterprises (draft for soliciting opinions), the number of overseas debt issuance and the scale of financing decreased significantly in the second half of 2022. 3. audit principles put more emphasis on "risk prevention" Document No. 2044 proposes to implement scale control of foreign debt issued by enterprises in accordance with the principle of "controlling total amount, optimizing structure, and serving entities", strengthen supervision during and after the event, and effectively prevent risks; the "Measures" increase the principle of corporate foreign debt review and registration management to "Control total amount, optimize structure, serve entities, and prevent risks", and delete the expression "expand the scale of corporate foreign debt" in Document 2044. In 2022, a total of 43 entities and $57.6 billion of bonds defaulted, up 95 per cent and 61 per cent respectively from the same period last year; 97 per cent of these were material defaults, 2.5 per cent were technical defaults and 98 per cent were concentrated in the real estate sector. With the country's vigorous rectification of the property market, real estate enterprises limited financing channels, superimposed on the epidemic caused by the property market downturn, the industry is facing severe debt pressure. Rongchuang, Greenland, Shimao, Baolong, Yuzhou, Rongxin, Zhengrong, Xuhui, Zhongliang, Fuli, Longguang, Aoyuan, Hejing Taifu, Jingrui, Hongyang, Sino-Ocean Capital, Jiayuan, Jinke and many other leading real estate enterprises in the US dollar debt default, have taken debt extensions, exchange offers and other ways to save themselves. It is foreseeable that the principle of "risk prevention" will become an important guiding principle for the examination and registration of foreign debt in the future. At present, the main issuers of foreign bonds are concentrated in financial institutions, urban investment and real estate enterprises, unlike real estate enterprises, so far, the credit situation of urban investment dollar bonds is still good, and showing a trend of regional differentiation. In 2022, Zhejiang, Jiangsu and Shandong, the three eastern coastal developed provinces, are the three major urban investment overseas bond issuing provinces, accounting for about 16%, 15% and 14% respectively, accounting for more than 45% in total. The net financing amount has reached more than 100 billion yuan, and the overseas bond issuance market shows a certain concentration trend; while the regions with the largest net repayment scale are Gansu, Guizhou and Yunnan. Substantial change in 4. review conditions: bonds can also be issued in the event of a default. According to Article 3 of Document No. 2044, the issuance of foreign debt by an enterprise shall meet the following basic conditions: a good credit record and no default on the bonds or other debts issued. It has good corporate governance and foreign debt risk prevention and control mechanism. Good credit standing and strong solvency. The "Measures" added the requirement of "having a reasonable demand for foreign debt funds", which reflects the guiding principle that corporate foreign debt should focus on the main business and service entities; deleted the requirement that "issued bonds or other debts are not in default". "With strong solvency" was changed to "with solvency", giving enterprises more room to borrow foreign debt to save themselves, it reflects the important positioning of the National Development and Reform Commission that "corporate borrowing of foreign debt, especially medium and long-term foreign debt, is an important part of my country's effective use of foreign capital and expansion of two-way opening up. However, it is foreseeable that for companies that have defaulted, the National Development and Reform Commission will conduct a more stringent review of the company's creditworthiness and use of funds. In addition, the "Measures" also added that "the enterprise and its controlling shareholders, and actual controllers have not committed criminal crimes of corruption, bribery, embezzlement of property, misappropriation of property, or disrupting the order of the socialist market economy in the past three years, or are suspected of crimes or major violations of laws According to the requirements of" violations ", the follow-up due diligence of foreign debt issuance intermediaries should increase the relevant scope, relevant sections shall be added to relevant transaction documents and legal documents. 5. scientific delineation of the scope of management, reduce regulatory blind spots 1, clear "indirect borrowing of foreign debt abroad" audit registration. The Measures clarify that these Measures apply to domestic enterprises' indirect borrowing of foreign debt abroad, and also clarify the definition of indirect debt issuance: domestic enterprises' indirect borrowing of foreign debt abroad refers to enterprises whose main business activities are in the country, in the name of enterprises registered overseas, based on the equity, assets, income or other similar rights and interests of domestic enterprises, issuing bonds or borrowing commercial loans abroad. It can be seen that the Measures adopt a more general expression for the supervision of the structure of "indirect bond issuance", which not only brings the indirect bond issuance of red chips and VIE structure into the supervision, but also expands the scope of indirect borrowing of foreign debt that needs to be reviewed and registered to a certain extent, and the transaction structure that meets the characteristics of "indirect bond issuance" is included in the supervision. As for the understanding of "the main business activities are in China" and "based on the equity, assets, income or other similar rights and interests of domestic enterprises", it is necessary to further explain through the government service platform of the national development and Reform Commission to issue the "work guide" and frequently asked questions matching the "management measures". We will also pay close attention to it. 2. Clarify the audit and registration of the issuance structure of overseas SPV and other subsidiaries as issuers. In practice, it is very common for domestic parent companies to set up SPV and other subsidiaries abroad as the issuance structure of overseas bond issuers, and there is no doubt about the filing and examination of this structure. However, the Measures further clarify this: Article 2 of the Measures defines the foreign debts that need to be examined and registered as debt instruments of more than one year borrowed by "domestic enterprises and their controlled overseas enterprises or branches, and the definition of" control ":" the control referred to in these measures refers to the direct or indirect ownership of more than half of the voting rights of the enterprise, or although it does not have more than half of the voting rights, but can control the operation, finance, personnel, technology and other important matters of the enterprise." 6. Application Procedure Optimization 1. Application subject optimization: no longer distinguish between group headquarters and local enterprises According to Article 11 of the Measures, the "headquarters of domestic holding enterprises" shall apply to the examination and registration authority. The distinction between group headquarters and local enterprises is no longer made in accordance with article 2044. To a certain extent, the new regulations are conducive to the unified management of enterprise groups and promote the further optimization of the foreign debt management of the NDRC. 2. The audit time limit was extended from 7 working days to 3 months The "Measures" extend the time limit for issuing a registration certificate from 7 working days after acceptance to 3 months from the date of acceptance (the time taken to complete the review and registration materials is not counted in the time limit for review and registration). It should be noted that at present, there are two time points for foreign debt registration of safe. First, as required on page 8 of the operational guidelines for the administration of foreign debt registration, foreign debt registration procedures shall be handled at the local foreign exchange bureau within 15 working days after the signing of the foreign debt contract; second, as stipulated in Article 10 of the notice of the people's Bank of China on matters related to macro Prudential Management of full caliber cross-border financing, the enterprise shall, after the signing of the cross-border financing contract but no later than 3 working days before the withdrawal, file the signing of the cross-border financing with the capital project information system of the State Administration of Foreign Exchange. Under the condition that the "Measures" clearly require the "Audit Registration Certificate" for foreign exchange registration, the three-month audit period may have problems with the handling of SAFE procedures. The timing of the issuance is worthy of the attention of relevant entities, and the timetable should be planned in advance. 7. strengthens the management of the use of foreign debt funds, and makes the use of foreign debt funds more flexible. The new regulations put forward a positive orientation and negative list of the use of foreign debt, and focus on guiding enterprises to use foreign debt funds from both positive and negative aspects. As an answer to the old regulation, item 47 points out that the use of foreign debt funds should meet the following conditions:(1) do not violate China's laws and regulations;(2) do not threaten or harm China's national interests and economic security;(3) do not violate China's macroeconomic control objectives;(4) do not violate China's relevant development plans and industrial policies;(5) shall not be used to make up for losses and non-productive expenditures;(6) Except for banking financial enterprises, they may not lend to others ". In this regard, the "Notice" has made many adjustments:(1) For the requirement that financial enterprises other than banks are not allowed to lend to others, if "the relevant information has been stated in the application materials for foreign debt review and registration and approval", they can lend. However, the extent to which enterprises need to explain whether such lending constitutes a major change in the use of raised funds and triggers the change application obligation stipulated in Item (II) of Article 18 of the measures still needs to be explored in practice;(2) delete the requirement of "not to be used to make up for losses and non-productive expenditures" and add the requirement of "not to be used for speculation, speculation and other acts". On the whole, the new regulations not only allow to make up for losses, the scope of "speculation and speculation" is also smaller than that of "non-productive expenditure", and the use of enterprise funds is more flexible;(3) the provision of "no new hidden debts of local governments" is added, once again, it is clearly stated that the state has repeatedly emphasized in many documents, such as Guofa [2014] No. 43, Guobanfa [2015] No. 40, FGFFEI [2018] No. 706, FGFEI [2019] No. 666, FGFEI [2018] No. 27, and FBC [2021] No. 15, who borrows and pays back the debts of state-owned enterprises, the local finance is not guaranteed, and the local government is only limited. Guiding Principles of Responsibility. Compared with document No. 2044, on the basis of repeatedly emphasizing the encouragement of foreign debt funds to flow to national key strategies and key projects, the new regulations emphasize that "enterprises can make independent decisions to apply foreign debt funds at home and abroad according to their own credit situation and actual needs." it defines the basic attitude of regulators on the free use of foreign debt funds within the legal scope, which can be mutually confirmed with the content of the new regulations mentioned in this article to expand the scope of capital lending. The 8. clearly states that foreign exchange registration requires a Certificate of Audit and Registration. Document No. 2044 only requires enterprises to go through relevant procedures such as inflow and outflow of foreign debt according to regulations on the basis of the filing registration certificate, but does not clearly specify the registration of foreign debt. Article 17 of the Measures specifies that foreign exchange registration must be handled by means of the Examination and Registration Certificate: enterprises shall go through relevant procedures such as foreign exchange registration, account opening, fund receipt and exchange, and fund use according to regulations on the basis of the Examination and Registration Certificate. For enterprises that fall within the scope of management of these Measures but have not obtained the "Examination and Registration Certificate", the relevant departments will not handle the relevant procedures, and financial institutions will not handle the relevant business. 9. takes information disclosure as the core and compacts the main responsibility of all parties. Document No. 2044 stipulates that "within 10 working days after the end of each issue, the issuance information shall be submitted to the National Development and Reform Commission", and the "Measures" greatly enriched the requirements for information disclosure: First of all, the time and content of the post-event submission are clarified. The enterprise shall, within 10 working days after borrowing each foreign debt, submit the information of borrowing foreign debt to the examination and registration authority through the network system, including the main business indicators of the enterprise and the situation of foreign debt borrowing, etc.; within 10 working days after the expiration of the validity period of the examination and registration certificate, the corresponding foreign debt borrowing situation shall be submitted. The term "after borrowing foreign debt" refers to the exercise of the right of the enterprise to withdraw foreign debt funds (the completion of the delivery of foreign bonds or each withdrawal of commercial loans); Secondly, a reporting system for major events has been added, and for major situations that may affect the normal performance of debts, such as domestic and foreign debt repayment risks or major asset restructuring, enterprises should promptly report relevant information and take risk isolation measures to prevent spillover and cross-default risks of domestic bond default risks; Third, a new periodic reporting system has been added. Enterprises should report to the examination and registration authority through the network system the use of foreign debt funds, the payment of principal and interest, the planned arrangement, and the main business indicators within five working days before the end of January and July each year; Fourth, the obligation of overseas investigation and reporting has been increased. If enterprises or relevant intermediary agencies need to cooperate with overseas regulatory agencies for inspection or investigation due to borrowing foreign debts, and involve national security or public interests, they should report to the relevant domestic authorities in advance. 10. Enhance Change Regulation According to the "Measures", after the completion of the foreign debt review and registration, if the currency of the foreign debt to be borrowed or the type of debt instrument changes, the use of the raised funds changes significantly, or other circumstances that require major adjustments to the relevant content of the "Review and Registration Certificate" occur, the enterprise shall apply to the review and registration authority for changes before the relevant circumstances occur; and Document 2044 only stipulates, "When there is a large difference between the actual situation of the issuance of foreign debt by an enterprise and the registration of the record, it shall be explained when the information is submitted". 11. Other changes in the Measures In addition to the above changes, the Measures have also made many changes to the external debt audit and registration process, such as the addition of a mechanism for the completion of audit materials, the parallel submission of network systems and paper materials, the refinement of the content of debt instruments, the enhancement of the responsibilities of enterprises and intermediaries, etc., which we will discuss in subsequent articles. Conclusion: winter and spring, looking ahead to the bond market in 2023 In 2022, a total of about $104.8 billion million of Chinese dollar-denominated debt will be issued, down 57% from 2021; Bloomberg Chinese Dollar-denominated Debt Investment Grade Index, Bloomberg Chinese Dollar-denominated Debt High Yield Index

2023-02-10

Professional perspective | Shareholders writing off a company without liquidation may not be jointly and severally liable for the company's debts

Brief case] A mechanical and electrical Co., Ltd. (hereinafter referred to as "mechanical and electrical company") was established in 2010 with a registered capital of 10 million yuan. Among them, shareholder Zhang holds 30% and shareholder Li holds 70%. In 2018, the mechanical and electrical company ceased operations after being sued for an external debt of 5 million yuan, and the court ruled that it was finally executed because it had no property to enforce. After the shareholders, shareholders Zhang and Li wrote off the mechanical and electrical company without liquidation. Later, the creditors demanded that the shareholders Zhang and Li be liable for compensation on the grounds that the shareholders were "idle in fulfilling their liquidation obligations. focus of controversy] If a limited liability company meets the conditions for liquidation, should the shareholders be liable for liquidation if they cancel the company without liquidation (neglecting to fulfill their liquidation obligations)? legal analysis] ▶Article 183 of the Company Law stipulates that "...... the liquidation group of a limited liability company shall be composed of shareholders, and the liquidation group of a joint stock limited company shall be composed of directors or persons determined by the general meeting of shareholders", and the Supreme People's Court's Rules on the Application<中华人民共和国公司法>Article 18 of the (II) on Certain Issues stipulates that "the shareholders of a limited liability company, the directors and the controlling shareholders of a joint stock limited company fail to set up a liquidation group to start liquidation within the statutory time limit, ...... the shareholders of a limited liability company, the directors and the controlling shareholders of a joint stock limited company fail to perform their obligations ......", and the liquidation obligor of a limited liability company is "shareholder", the liquidation obligors of a joint stock limited company are "directors and controlling shareholders". According to the Supreme People's Court's Application.<中华人民共和国公司法>Article 18 of the (II) on Certain Issues stipulates: "The shareholders of a limited liability company, the directors and the controlling shareholders of a joint stock limited company fail to establish a liquidation group within the statutory time limit to start liquidation, resulting in the devaluation, loss, damage or loss of the company's property. If the creditor claims that it is liable for compensation for the company's debts within the scope of the loss caused, the people's court shall support it in accordance with the law. If the shareholders of a limited liability company, the directors and controlling shareholders of a limited liability company fail to perform their obligations, resulting in the loss of the company's main property, account books, important documents, etc., and the liquidation cannot be carried out, and the creditors claim that they are jointly and severally liable for the company's debts, the people's court shall support it in accordance with the law." referee gist] (2021) Lu Min Zhong No. 1937 The shareholders of a limited liability company are negligent in fulfilling their liquidation obligations and are jointly and severally liable for the company's debts: (1) The shareholders are negligent in fulfilling their obligations; (2) The company's main property, books, important documents, etc. are lost and cannot be liquidated; (3) There is a causal relationship between the failure of shareholders to perform their obligations and the inability to liquidate the loss of the company's main property, books, important documents, etc. In this case, there is a causal relationship between the non-payment of the creditor's claim and the fact that the electromechanical company has no property to enforce. Even if the liquidation and cancellation procedures of the electromechanical company are flawed or even illegal, it cannot be concluded that there is a causal relationship between the non-payment of the creditor's claims involved and the failure of the shareholders of the electromechanical company to fulfill their liquidation obligations. Creditors should be well aware that even if the shareholders of the electromechanical company fulfill their liquidation obligations or they receive the liquidation notice of the electromechanical company and they declare their claims in accordance with the law, it will be difficult to be paid off. Therefore, in the absence of the element of causality, creditors claim that shareholders Zhang and Li should be liable for the debts owed by the mechanical and electrical company, without factual and legal basis. Lawyer Advice] When there is a reason for dissolution of a limited liability company, the shareholders fail to set up a liquidation group in time, resulting in devaluation, loss, damage or loss of the company's property, loss, damage or loss of the company's main property, account books, important documents, etc., and the liquidation cannot be carried out, the shareholders abuse the independent status of legal person and the limited liability of shareholders to seriously infringe the interests of creditors, creditors can pierce the legal person veil and require shareholders to bear joint liability for the company debts. However, if there is no causal relationship between the loss of the company's property or the company's inability to pay off its debts and the failure of the shareholders to set up a liquidation group in time and to fulfill their liquidation obligations, the shareholders may not be liable for compensation. Recommendations: A shareholder of a limited liability company shall, in order to avoid being claimed, do the following in the event of a dissolution of the company: 1. Establish a liquidation group in time; 2, to protect the company's property, to avoid the loss of company property; 3, after the establishment of the liquidation group to actively fulfill the liquidation obligations; 4, save the company's books, important documents; 5, shall not take advantage of the power to accept bribes or other illegal income, shall not embezzle the company's property; 6. If the company's property is found to be insufficient to pay off its debts, it shall apply to the court for bankruptcy in accordance with the law.</中华人民共和国公司法></中华人民共和国公司法>

2022-06-16

Administrative Litigation Vision (VI) | Administrative Litigation Evidence

Foreword Determined by the nature of administrative litigation, the ultimate fact that the evidence of administrative litigation is to prove is the legality of the accused administrative act. Under normal circumstances, the defendant bears the legal burden of proof to prove the legality of the accused administrative act. Throughout the proceedings, the defendant and his agent shall not collect evidence from the witnesses and the plaintiff on their own. The plaintiff may also request the people's court to collect evidence if it is difficult to collect evidence. 1 Types and Characteristics of Evidence in Administrative Litigation Administrative litigation evidence is all the facts that can prove the true situation of administrative cases. According to Article 33 of the the People's Republic of China Administrative Procedure Law (hereinafter referred to as the "Administrative Procedure Law"), administrative litigation evidence includes the following categories: (I) documentary evidence. It is an instrument recorded or expressed in words or symbols to prove the facts to be proved. (II) physical evidence. Refers to an article that uses the appearance, characteristics, quality, etc. of the article to explain part or all of the facts to be proved. (III) audiovisual materials. It refers to the factual materials related to the case recorded by means of audio or video recording. Audio tapes, videotapes and other items belong to the carrier, and the contents of their records belong to the audio-visual materials in the evidence. The audiovisual materials may be provided by the parties concerned, and the people's court may also, on its own initiative, request or copy them from the units or individuals concerned. (IV) witness testimony. Refers to the statement of the facts of the case made by the witness to the people's court orally or in writing. Except for those who are mentally or physically defective and cannot correctly express their will and the litigation agent of the case cannot be a witness in the case, any citizen and organization has the obligation to testify. Witnesses should generally appear in court in person to testify. If there are special circumstances that cannot appear in court, they may testify in the form of written testimony with the permission of the people's court. (V) the parties' statements. It refers to the statement of the facts of the case and the circumstances proving these facts submitted to the people's court by the person directly interested in the case. The statement of the parties is an important clue to find out the facts of the case, but the parties may adapt the objective facts for their own interests, so the people's court should conduct a comprehensive review in combination with other evidence in the case. (VI) identification conclusion. It refers to the technical conclusions made by appraisers with professional and technical expertise on special issues related to the case by using special instruments and equipment. Including medical identification, document identification, technical identification, accounting identification, chemical identification, physical identification, etc. (VII) inspection records and on-site records. The record of inspection refers to the records made by the staff of the administrative organ or the judicial personnel of the people's court for the investigation, inspection, measurement, drawing and photographing of the scene or articles related to the administrative case. On-site transcripts refer to the written records made by the staff of administrative agencies on the on-site conditions related to administrative cases and their handling in the course of administrative management. Evidence in administrative litigation should have three characteristics, namely, objective authenticity, relevance and legitimacy. Objective authenticity means that litigation evidence must be an objective fact that can prove the truth of the case and does not depend on subjective consciousness. Relevance means that the fact as evidence is not only an objective existence, but also has a logical connection with the facts to be found out in the case, so as to explain the facts of the case. Legitimacy means that the evidence must be provided by the parties in accordance with legal procedures, or by statutory authorities, statutory personnel in accordance with the statutory procedures for investigation, collection and review. Evidence that does not meet the above requirements cannot be used as the basis for the court to determine the facts to hear the case. Regardless of the form of the above seven kinds of evidence, the people's court examines its authenticity and legality, and at the same time examines the interrelation between the various kinds of evidence and the relationship with the facts to be proved. Burden of Proof in 2. Administrative Litigation The system of burden of proof is an important part of administrative litigation, and its specific meaning is that the parties who claim the existence of facts in litigation should bear the burden of proof, that is, "who claims, who gives evidence". In order to balance the unequal status of the parties in administrative litigation, the rule of the allocation of the burden of proof in administrative litigation in our country is that the defendant bears the burden of proof in principle, and in exceptional cases, the plaintiff bears the burden of proof, or the court investigates the evidence. (I) the defendant bear the burden of proof Article 34 of the Administrative Procedure Law stipulates: "The defendant shall bear the burden of proof for the administrative act he has committed, and shall provide the evidence for the administrative act and the normative documents on which it is based. If the defendant fails to provide or fails to provide evidence without justifiable reasons, it shall be deemed that there is no corresponding evidence." Therefore, the defendant, that is, the administrative organ, should bear the corresponding burden of proof to prove the legitimacy of its administrative act. "If the defendant fails to provide evidence or fails to provide evidence within the time limit without justifiable reasons, it is deemed that there is no corresponding evidence", which is mainly applicable to the profit and loss administrative act made by the administrative organ against the administrative counterpart, because according to the principle of obtaining evidence before ruling, the administrative organ must have collected sufficient and conclusive evidence when making a profit and loss administrative act, and the administrative organ fails to provide evidence or fails to provide evidence within the time limit without justifiable reasons in litigation, it is difficult for the people's court to support the administrative act. However, when the administrative action involves the legitimate rights and interests of the third party, the simple application of this rule is to transfer the adverse consequences to the third party. This shows that the evidence of administrative litigation should not only be provided by administrative organs, and all legal evidence that can prove the facts of the case can become the basis for the final decision of administrative litigation. In the course of litigation, subject to the rule of "obtaining evidence first, ruling later", the evidence provided by the defendant to prove the legality of the administrative act can only be limited to the evidence that he has already collected when he made the administrative act. If the accused administrative act is made in the absence of evidence or insufficient evidence, the administrative act has been illegal. (II) the plaintiff bear the burden of proof Although the defendant bears the burden of proof for the legality of the administrative act, this principle of distribution of proof does not mean that all the facts to be proved in the administrative litigation shall be proved by the defendant. The plaintiff shall prove whether the conditions for prosecution are met, whether the accused administrative act exists and is implemented, the facts that have been applied for when prosecuting inaction, and the damage suffered in the case of administrative compensation. 1. Eligible for prosecution. Article 4 of the "Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation" (hereinafter referred to as the "Provisions on Evidence") stipulates: "When citizens, legal persons or other organizations file a lawsuit in the people's court, they shall provide corresponding evidence materials that meet the conditions for the lawsuit." Whether the conditions for prosecution are met shall be provided by the citizen, legal person or other organization, that is, it is necessary to prove that it is the counterpart of the administrative act or a person who has an interest in the administrative act, otherwise the people's court will rule not to file the case or dismiss the prosecution after filing the case. 2. The existence and implementation of administrative acts. When the defendant has the burden of proof for the administrative act, he should provide the evidence and the normative documents on which the administrative act is based. It does not mean that the defendant needs to bear the burden of proof for all the facts of the accused administrative act. When the accused administrative act is an act, according to the above-mentioned legal provisions on the burden of proof, the defendant needs to prove that the administrative act he made has factual and legal basis and is a legal administrative act, as to whether the administrative act has been made and who is the subject of the administrative act, it should be proved by the plaintiff. Otherwise, it will make it difficult for the defendant who claims negative facts to fulfill the corresponding burden of proof in the trial of the case. In the case of (2016) Supreme Law Application No. 2907, the Supreme Court held that the plaintiff should obviously prove whether the alleged administrative act exists and whether the administrative act was carried out by the defendant. This is the factual basis for the plaintiff to accuse the administrative organ of having committed an administrative act that infringes its legitimate rights and interests, and also the substantive reason for the establishment of the litigation request, it is not to shift the burden of proof of the illegal administrative act to the plaintiff. 3. The fact that an application has been filed. When the accused administrative act is a failure to perform statutory duties or an omission as an administrative act, the plaintiff should generally prove that it has applied to the defendant, unless there are special provisions. The first paragraph of Article 38 of the Administrative Litigation Law stipulates: "In a case where the defendant is sued for failing to perform his statutory duties, the plaintiff shall provide evidence of his application to the defendant. However, one of the following circumstances is excluded; (I) the defendant should take the initiative to perform his statutory duties ex officio; (II) the plaintiff is unable to provide evidence for legitimate reasons." Therefore, the plaintiff's burden of proof for the performance of the application is not absolute. In the above two cases, even if the plaintiff fails to provide evidence, it will not bear the adverse consequences of the inability to provide evidence. 4. Administrative compensation and compensation cases. According to the second paragraph of Article 38 of the Administrative Litigation Law: "In a case of administrative compensation or compensation, the plaintiff shall provide evidence of the damage caused by the administrative act. If the plaintiff is unable to provide evidence due to the defendant's reasons, the defendant shall bear the burden of proof." The first paragraph of Article 47 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Administrative Procedure Law (hereinafter referred to as the "Application Interpretation") stipulates: "According to the provisions of the second paragraph of Article 38 of the Administrative Procedure Law, in administrative compensation In a case of compensation, if the plaintiff is unable to prove the damage due to the defendant's reasons, the defendant shall bear the burden of proof for the damage." Article 5 of the "Evidence Regulations" stipulates: "In administrative compensation litigation, the plaintiff shall provide evidence of the fact that the specific administrative act being sued has caused damage." According to the above-mentioned provisions, for the fact and amount of damage caused by administrative acts, in principle, follow the rule of proof of who claims who gives evidence, and the plaintiff gives evidence. However, this rule of proof is also not absolute and there are exceptions. In the case of (2016) Supreme Law Administration No. 791, the plaintiff was unable to prove the specific loss due to the defendant's reasons. The Supreme Court held that when Huashan District government organized the demolition of the applicant's house, it failed to register and preserve the articles in the house according to law, and failed to make a list of articles and submit it to the applicant for signature confirmation. As a result, the applicant could not prove the damage to the articles, so whether the loss existed and the specific loss, according to law, the respondent Huashan district government shall bear the burden of proof. In the case that the Huashan District government failed to provide sufficient evidence, the court of second instance, referring to the reasonable market price and in accordance with the principle of "high is not low", supported the applicant's reasonable claim for compensation for indoor goods, which has fully protected the applicant's rights. However, in the administrative compensation litigation, if the plaintiff is unable to provide evidence due to the defendant's reasons, the plaintiff is not automatically exempted from the burden of proof to prove the existence of the loss and the scope of the loss. In the case of (2017) Supreme Law Xing Shen No. 26, if the Supreme Court considers that the plaintiff's proof of the loss is obviously unreasonable, the people's court may determine the corresponding amount of compensation in accordance with the law in the light of the objective facts found after the trial. Although in principle, the defendant bears the burden of proof in administrative litigation, this does not mean that the plaintiff cannot prove the facts of his claim, but that the plaintiff does not bear the consequences of the inability to prove, nor does it of course exempt the defendant from the burden of proof. Article 37 of the Administrative Procedure Law stipulates: "The plaintiff may provide evidence to prove that the administrative act is illegal. If the evidence provided by the plaintiff is not tenable, the defendant shall not be relieved of the burden of proof." In addition, according to Article 46 of the applicable interpretation, if the plaintiff or a third party does have evidence to prove that the evidence held by the defendant is beneficial to the plaintiff or the third party, it may apply in writing to the people's court to order the administrative organ to submit it before the hearing. If the reasons for the application are established, the people's court shall order the administrative organ to submit it. If the administrative organ refuses to submit it without justifiable reasons, the people's court may presume that the facts claimed by the plaintiff or a third party based on the evidence are established. In such a case, even if the plaintiff or a third party does not prove the facts claimed by him, the court still presumes that the facts claimed by him are established and the defendant bears the adverse consequences. (III) people's court to conduct investigation and collect evidence Although the burden of proof and the consequences of the failure of proof shall be borne by the original defendant, under certain circumstances, the people's court may, ex officio, require the parties to provide evidence, collect evidence on their own, or obtain evidence on the application of the plaintiff or a third party. 1. Ex officio. In order to protect the legitimate rights and interests of the State, society and others, the people's court may require the parties to provide and supplement evidence. Article 39 of the Administrative Procedure Law stipulates: "The people's court has the right to require the parties to provide or supplement evidence." Article 37 of the applicable interpretation further explains: "according to the provisions of Article 39 of the administrative procedure law, the people's court may order the parties to provide or supplement relevant evidence if there is no dispute over the parties, but the facts involve the national interests, public interests or the legitimate rights and interests of others." At the same time, the court has the right to investigate and collect evidence on its own. Article 40 of the Administrative Litigation Law stipulates: "The people's court shall have the right to obtain evidence from the relevant administrative organs, other organizations and citizens. However, it shall not obtain, for the purpose of proving the legality of an administrative act, evidence that was not collected when the defendant took the administrative act." Article 22 of the "Evidence Regulations": "According to the second paragraph of Article 34 of the Administrative Litigation Law, the people's court has the right to obtain evidence from relevant administrative agencies, other organizations, and citizens under any of the following circumstances: (1) The determination of facts involving national interests, public interests, or the legitimate rights and interests of others; (II) involving procedural matters such as adding parties ex officio, suspending litigation, terminating litigation, and withdrawal." It can be seen that the court is also bound by the rule of "taking evidence first, ruling later" in the process of obtaining evidence. This provision is not only a requirement of doctorism, but also a requirement of the principle of neutrality. (2017) In the Supreme Law Application No. 2926 case, the Supreme Court held that the court could neither accept the evidence that the defendant did not collect when he made the administrative act, nor obtain the evidence that the defendant did not collect when he made the administrative act in order to prove the legality of the administrative act. 2. Upon request. Article 41 of the Administrative Litigation Law: "If the plaintiff or a third party cannot collect the following evidence related to this case on its own, it may apply to the people's court for access: (1) Evidence kept by state agencies and must be obtained by the people's court; (II) evidence involving state secrets, trade secrets, and personal privacy; (III) other evidence that cannot be collected by itself due to objective reasons." In civil proceedings, if the plaintiff and the defendant are unable to collect evidence on their own for objective reasons, they may apply to the court to obtain evidence. In administrative litigation, the defendant, as an administrative organ, has a higher ability to obtain evidence than the plaintiff and the third party, so the law stipulates that only the plaintiff and the third party have the right to apply to the court for investigation and evidence collection. 3. epilogue Compared with civil litigation, the rule of proof in administrative litigation has its particularity, based on the fact that the status of the plaintiff and the defendant is not equal, it is necessary to ensure the equality of the litigant's litigation status through the distribution of the burden of proof, so the traditional rule of proof of "who claims, who gives evidence" is not fully applicable to administrative litigation. In judicial practice, courts often allocate the burden of proof reasonably on the basis of legal provisions according to the ability of both parties to prove the case, combined with the facts of the case.

2022-06-10