Viewpoint... A preliminary exploration of civil liability for misrepresentation of private equity bonds that can be publicly traded.

摘要：近来，资本市场中可公开交易私募债券虚假陈述案件频频“爆雷”，相关法律法规却鲜有触及责任主体及责任承担比例等问题。虽然最高院于2022年1月出台了《最高人民法院关于审理证券市场虚假陈述侵权民事赔偿案件的若干规定》，但由于私募债券与公募债券或公开发行股票有着本质区别，对于证券种类或性质不同其法律适用应予以区分对待。本文尝试就可公开交易的私募债券涉及虚假陈述的民事责任主体及责任比例进行探讨，并建议尽快制定符合私募债券性质的相关法律法规或司法解释，以符合资本市场的发展。   关键词：可公开交易的私募债券、虚假陈述民事责任   Abstract：The subject and proportion of civil liability for misrepresentation cases of publicly traded private placement bonds in the capital market have rarely been touched upon by relevant laws and regulations. Although the Supreme Court issued several provisions of the Supreme People's Court on the trial of civil compensation cases for misrepresentation infringement in the securities market in January 2022, the definition of the types or nature of securities and their legal application should be treated differently, as private placement bonds are fundamentally different from public offering bonds or public offering stocks. This paper attempts to discuss the subject and size of civil liability for misrepresentation of privately offered bonds that can be publicly traded, and suggests that relevant legal and judicial interpretations in line with the nature of privately offered bonds be formulated as soon as possible to refine the provisions to comply with the development of the capital market.   Key words：publicly traded private placement bonds, civil liability for misrepresentation   一、引言   2022年1月12日起施行的《最高人民法院关于审理证券市场虚假陈述侵权民事赔偿案件的若干规定》（以下简称“若干规定”）虽然明确和细化了证券市场虚假陈述侵权民事赔偿责任的构成要件及追究机制等内容，但没有对公开发行的证券中的股票与债券、公募债券和私募债券等概念进行区分；虽然文义上将适用范围扩大到可公开交易的私募债券等领域，但没有根据私募债券的特点进行细化规定。   “私募”的概念包含于“非公开发行”的范畴之中，在“非公开发行”的定义上我国采取的是“并列规定模式”（或“反向推定模式”），即分别规定公开发行及非公开发行的定义，并在此基础上规定公开发行采取注册制、非公开发行采取备案制及证券发行、交易管理的其他制度，因此在我国关于证券的性质界定及其引发的问题应当是尤为重要的问题。本文将在辨析基础概念的基础上以我国私募债券虚假陈述民事责任法律制度的完善为目的，从梳理、分析立法目的和理论基础为出发点，分析可公开交易的私募债券虚假陈述民事责任制度的法律修订与完善。   二、可公开交易的私募债券概述   （一）可公开交易的私募债券定义   私募债券是指 “在中国境内以非公开方式发行和转让，约定在一定期限还本付息的债券” ， “非公开方式”是指向每期不超过两百人的合格投资者发行且不采用广告、公开劝诱和变相公开方式。实践当中存在“大公募”、“小公募”和“私募”的惯常用法 ，“大公募”和“小公募”均是公开发行，而“小公募”要求向合格投资者发行，“私募”更近一步是指向合格投资者非公开发行。   从法律关系的角度，私募债券不同于股权，持有私募债券代表投资人与发行人之间存在债权债务关系，且其披露文件的作用是供合格投资者判断发行人在经过将来的一段时间后是否还具有还本付息的能力，其风险在于发行人部分或完全丧失还本付息的能力而违约。   根据《公司债券发行与交易管理办法（2021年修订）》，参照2022年《上海证券交易所非公开发行公司债券挂牌交易转让规则（2022年修订）》，非公开发行的债券在已经合法发行之后符合规定完结程序可以在上交所挂牌转让。挂牌转让的交易双方在符合双方皆是合格投资者、转让发生后不会导致债券投资者超过200人、双方协商一致并向交易所申报等规则后即可进行交易，由于交易所有公共平台的性质，本文称之为可公开交易的私募债券。   （二）私募债券的合格投资者制度   合格投资者制度是私募法律制度的核心，我国证券法对投资者设定风险辨识和承担能力门槛并规定合格投资者应当自行承担债券的投资风险，主要借鉴美国的高收益债券的立法经验，其目的是平衡融资便利性和投资者保护，合格投资者在迈入私募债券这种有着更高收益债券的购买门槛的同时，应当承担起相较普通投资者更高的交易注意义务和风险承担能力。合格投资者制度引入，实现对我国证券市场投资者的分类管理，为私募债券等私募证券设置准入门槛，高门槛意味着高风险，高风险中蕴含着高收益，合格投资者应当秉持着善意投资的主观心理进行投资，并且为自己的选择负责。   虽然私募债券中合格投资者承担更高的注意义务与“买者自负”原则，但是这并不意味着虚假陈述民事责任人可以因此免责。   （三）可公开交易的私募证券的交易机制   2022年4月22日上海证券交易所和深圳交易所分别发布《上海证券交易所非公开发行公司债券挂牌规则（2022年修订）》和《深圳证券交易所非公开发行公司债券挂牌规则（2022年修订）》，同时2018年版即时废止。新规没有对挂牌债券的转让规则作出明确规定，参见新规的修订说明，新规完善债券转让机制，重点在于增加原则性规定，同时为后续完善相关规则留出空间。可见有关债券转让机制的详尽立法已经被立法者提上日程。虽然旧规已被废止，但尚没有具体的债券转让机制的规定，旧规仍可以反映可公开交易的私募债券的交易模式。旧规中规定债券转让以协商为主要方式进行，转让双方应当就转让的价格、数量等要素达成一致，应当向交易所提出申报。同时实践当中有关交易需在特定的“固定收益平台”上进行，交易需买卖双方事先确定交易价格、数量后在平台上输入只有他们掌握的特殊编码，才可成功申报。因此虽然可公开交易的私募债券在交易所进行挂牌，但区别于公开发行的债券面向不特定对象交易，其交易模式是典型的在公开交易市场的私下协商交易，双方平等协商的“一对一”交易模式。   （四）可公开交易的私募债券法律适用的困境   1、适用《证券法》的困境   《证券法》没有排除私募证券的法律适用，但是其中仅有第九条、第三十七条和第九十八条规定为有关非公开发行证券的规定，且均在规定中明确“非公开发行”。《证券法》关于信息披露义务的规定，均没有提及“非公开发行”，在第五章信息披露章节中也没有规定非公开发行的债券信息披露规则，则有理由认为《证券法》部分规定仅规范公开发行的债券，或只能在处理非公开发行的债券信息披露时作为参考。   2、适用《若干规定》的困境   2022年1月12日起施行的《若干规定》没有对公募和私募进行区分，规定“信息披露义务人在证券交易场所发行、交易证券过程中实施虚假陈述引发的侵权民事赔偿案件，适用本规定”，且没有进行例外规定。《若干规定》对比2003年《最高人民法院关于审理证券市场因虚假陈述引发的民事赔偿案件的若干规定》中明确规定仅适用于公募证券，文义上拓展了适用范围，扩大到了可公开交易的私募债券等领域。但是非公开发行证券是否应当适用《新虚假陈述若干规定》存在争议。   学者雷继平、王巍、兰朝晖，提出“在证券交易场所发行、交易”的判断标准，或可进一步界定为证券发行、交易“是否使用了证券交易场所的场地和设施”。私募债券在非公开发行阶段由发行人和承销商负责，发行完成后依据相关流程在交易所挂牌，没有使用证券交易场所的场地和设施，不属于“在证券交易场所发行、交易”，同时结合立法目的，认为私募债券不应适用《新虚假陈述若干规定》。   私募债券的可公开交易亦为“一对一”交易，实践当中存在债券发行前就已经约定好交易价格、交易对象和交易时间的“准内部交易”，债券发行和交易均没有使用证券交易所的场所和设施，私募债券对于该等交易的责任分担，应不适用《若干规定》，应在此后的司法解释或法律法规中予以明确。笔者认为，除了上述解释外，私募债券的发行和交易的方式可能存在发行前交易、内幕交易的可能性，故应区分情况以决定是否适用《若干规定》。   三、可公开交易的私募债券虚假陈述民事责任   （一）虚假陈述行为性质   证券市场是一个依赖信息汇集、分析和决策进行交易的场所，其高效健康的运行有赖于高质量的信息披露。在此过程中，投资者不需要支付或仅需支付微小对价即可以获取相关信息。中介机构等信息披露主体非基于同投资者之间的合意，而是基于法律法规、规范性文件规定以及同发行人、上市公司之间的契约关系而进行信息审核，因此投资者追究中介机构虚假信息披露民事责任难以通过以相对性为核心的合同责任。将证券虚假陈述民事责任定义为侵权责任是世界上的大趋势，我国立法和理论都将证券虚假陈述行为定义为侵权行为。证券虚假陈述表面上侵犯的是投资者的获取真实信息权，实质上是侵犯投资者的财产权。根据经济学的“有效市场”假设，在弱势有效市场和半强势有效市场，证券价格难以有效、及时、充分的体现未公开信息，某些未公开信息掌握者可以以信息差获取高额利润，而未掌握信息的投资者会因此受到财产损害。这种针对不确定对象故意或过失损害其绝对权，又依照法律规定承担民事责任的行为，符合侵权行为的定义。采取侵权责任说，可以不受合同相对性限制而追究非证券交易合同主体的责任，更有利于保护投资者并促进行业自律，推动证券市场良性发展。   （二）可公开交易的私募债券纠纷中因果关系探讨   有学者主张推定因果关系的理论基础是“市场欺诈理论”。“市场欺诈理论”巧妙的将投资者对市场定价的信赖与对虚假信息的信赖画等号，桥梁是经济学的“有效市场假设”。由于债券与股票不同，以及收益来源的差异和流通性差异，债券市场恐怕无法归类于强势或半强势有效市场，无法基于“有效市场假设”而成立推定信赖原则。但是除了“市场欺诈理论”还有其他理论可以帮助在私募债券市场成立推定信赖原则。私募债券高度类似合同交易，可公开交易的私募债券对比合同交易主要区别在于合格投资者制度和在公开平台上的信息披露要求。其在公开平台上的信息是经过多方保证真实性、准确性、完整性并在上交所等官方平台上披露的，其信息的可信度远远超出普通合同欺诈

2022-06-08

Viewpoint... How to protect the rights and interests of small shareholders of the shareholder representative litigation system.

Under the modern corporate system, investors tend to believe in capital majority decision, with the primary goal of having more control of the company. However, the problem that follows is that when the interests of controlling shareholders conflict with those of minority shareholders, the interests of minority shareholders are often vulnerable to infringement. This paper will focus on the protection of minority shareholders' rights and interests by means of shareholder representative litigation. The main forms of infringement of the interests of small shareholders in 1.. The fundamental reason for the infringement of the interests of minority shareholders is that the controlling shareholders can essentially control the operation of the company, but the company and shareholders are independent of each other at the legal level, and the property of the company is independent of the property of the shareholders. therefore, when the controlling shareholders make decisions involving the company, they do not proceed from the interests of the company, but encroach on the property of the company through a series of transactions that damage the interests of the company. This will lead to the loss of the company's property and endanger the interests of the company, other shareholders and creditors. If the company were to go bankrupt and liquidate as a result, although the controlling shareholder would have to share the losses with the minority shareholders, the controlling shareholder may have already benefited from the company by using its controlling position to far outweigh the loss of its capital contribution, and the interests of the minority shareholders would not be protected. In this regard, the shareholder representative litigation system directly gives minority shareholders the right to file lawsuits on behalf of the company under certain conditions, which is conducive to protecting the interests of the company and minority shareholders, and investigating the relevant responsibilities of controlling shareholders, directors and supervisors. 2. the subject qualification of shareholder representative litigation. The plaintiff in a (I) shareholder's representative action shall be a shareholder of the company, and the shareholder of a joint stock limited company shall also meet the limit on the period and number of shares held. According to Article 151 of the Company Law, the subject of the shareholder representative action is the shareholder. There are no restrictions on the shareholders of a limited liability company, but the shareholders of a limited liability company have restrictions on the period of holding shares and the number of shares held. The specific requirements are: the shareholders of a limited liability company hold more than 1% of the company's shares for more than 180 consecutive days in order to have the legal qualification to bring a lawsuit. (II) whether the damage to the company occurred before or after the plaintiff obtained shareholder status, it does not affect the right of the shareholder to bring a shareholder representative action. Article 24 of the Ninth Minute provides that "if a shareholder files a shareholder representative action and the defendant defends that the shareholder is not a qualified plaintiff on the grounds that the plaintiff has not yet become a shareholder of the company at the time of the act, the people's court shall not support it". (III) companies should be listed as third parties Since shareholder representative litigation is a dispute arising from the operation of the company, it is to safeguard the interests of the company and involves the entity rights and interests of the company. Therefore, Article 24 of the Judicial Interpretation IV of the Company Law stipulates that the company shall be listed as a third party in the shareholder representative action. Application of 3. shareholder representative litigation According to Article 151 of the Company Law, shareholder representative litigation applies to situations where others infringe on the interests of the company, including the following two types: (I) directors, supervisors and senior executives have caused losses to the company in violation of laws and regulations when performing their duties. This is the most typical situation of filing a shareholder representative lawsuit, directors, supervisors and executives are the actual management personnel of the company, and when they violate the duty of loyalty and diligence and cause losses to the company, they usually have no incentive to file a lawsuit against themselves in the name of the company, and allow the company's property to suffer losses. (II) another person to infringe upon the legitimate rights and interests of the company and cause losses to the company In addition to the previous typical application, the company law expands the scope of application of the shareholder representative litigation system, and any third party (including other shareholders) has room to apply the shareholder representative litigation system as long as it infringes on the legitimate rights and interests of the company. Common scenarios are as follows: 1. Abuse of control by controlling shareholders or actual controllers to infringe on the interests of the company 2. Defective contributions by shareholders 3. The non-performance of the debt of the company's debtor. 4. Misconduct by members of the liquidation team Pre-procedure for shareholder representative litigation in 4.. (I) statutory pre-procedure The main purpose of setting up the pre-procedure is to avoid excessive involvement of judicial factors, to ensure the internal autonomy of the company, and to prevent the abuse of shareholder litigation. According to Article 151 of the Company Law, shareholders are required to perform the legal pre-procedure to file a representative lawsuit, that is, a written request to the board of supervisors, the supervisor of a limited liability company without a board of supervisors, the board of directors, and the executive director of a limited liability company without a board of directors to file a lawsuit. A shareholder has the right to bring a shareholder representative action only if the aforementioned subject refuses to bring a lawsuit, or if the aforementioned subject fails to bring a lawsuit within 30 days from the date of receipt of the request. This requires that before filing a shareholder representative lawsuit, the shareholder must first exhaust the company's internal remedies, and if the plaintiff shareholder does not request the supervisory board, supervisor or board of directors or executive director to file a lawsuit in writing, and there is no sufficient evidence to prove that there is an exception to the pre-procedure in the case, the court will rule to dismiss the lawsuit. Exceptions (II) exemption from statutory pre-procedure 1. In case of emergency According to Article 151 of the Companies Act, shareholders have the right to file a lawsuit directly in case of emergency, I .e. no statutory pre-procedure is required. Examples of emergency situations are as follows: (1) The failure of shareholders to immediately file a lawsuit will result in the expiration of the statute of limitations; (2) The infringer transfers the company's property, and its act of harming the company's interests is continuing, and the company's interests will be irreparable if it does not file a lawsuit immediately. Thus, "urgency" requires urgency to stop the violation, I .e., a real and imminent danger, rather than a remote or speculative one. 2. There is no possibility of litigation by the relevant authorities of the company. Article 25 of the Nine People's Minutes stipulates that "the pre-procedure is aimed at the general situation of corporate governance, that is, when the shareholders submit a written application to the relevant organs of the company, there is a possibility of litigation by the relevant organs of the company. If the relevant facts identified show that there is no such possibility at all, the people's court shall not dismiss the prosecution on the ground that the plaintiff has not fulfilled the pre-procedure". Among them, the case where "there is no possibility of litigation by the relevant organs of the company" is as follows: (1) The company does not have a board of directors, a supervisory board, or a person who has already left the company without serving; (2) The directors or supervisors of the company are under the control of the controlling shareholder who committed the infringement and it is impossible for the directors or supervisors to sue the controlling shareholder; (3) The directors and supervisors themselves have an interest in the act involving damage to the interests of the company, or the directors and supervisors are the defendants in the case. Therefore, "there is no possibility of litigation by the relevant organs of the company", which requires that there is no possibility of performing the pre-procedure objectively. Attribution of interests in 5. litigation Article 25 of the Judicial Interpretation IV of the Company Law stipulates that "in a case where a shareholder directly brings a lawsuit in accordance with the provisions of paragraphs 2 and 3 of Article 151 of the Company Law, the winning interest belongs to the company. If the shareholder requests the defendant to bear civil liability directly to him, the people's court shall not support it". Since in a shareholder representative action, the shareholder is suing to defend the interests of the company, the interest in the shareholder representative action is vested in the company. 6. Summary In general, China's shareholder representative litigation system provides less, but the future application scenario is more extensive, the current should encourage minority shareholders to sue. Before filing a lawsuit, the minority shareholders should self-examine whether the subject is qualified, whether it has fulfilled the pre-procedure, whether it meets the pre-procedure exemption and other preconditions for prosecution, in order to fully protect their rights and interests.

2022-06-08

In the case of the case, if the guarantor is not required to assume the responsibility of the guarantee during the guarantee period, the guarantee liability is exempted.

Recently, a private lending dispute case handled by the author received a second-instance judgment made by the Jinan Intermediate People's Court (hereinafter referred to as the "Jinan Intermediate Court"). The court of first instance in the case ruled that the guarantor of the debt involved in the case was jointly and severally liable for the debt involved in the case. The author filed an appeal on behalf of the guarantor, and the Economic South Intermediate Court heard the trial. The final judgment revoked the first instance judgment, and the guarantor was not required to bear joint and several liability for the debts involved in the case, effectively safeguarding the legitimate rights and interests of the guarantor. Brief of the case On August 20, 2000, a company signed a Repayment (Repayment Guarantee) Agreement with Zheng and Zhang, agreeing that Zheng would lend a loan of 244000 yuan to a company with an annual interest rate of 13% until August 1, 2000. Zhang, as the vice president of the company, signed the agreement as the guarantor of repayment, and promised to "provide unconditional full repayment guarantee for the loan with his family property". At the bottom of the agreement, write "this agreement as an attachment to the original loan contract (No.998060). all parties agree that party B (a company) can repay it in monthly installments at a rate of 10% per month until June 2001", with Zhang's signature attached, but the words "monthly installments at a rate of 10% per month" and "June 2001" have been altered. In August 2021, Zheng filed a lawsuit with a district court in Jinan City, demanding that a company repay the principal and interest, and Zhang bear joint and several liability. Zhang did not appear in court to participate in the proceedings. A district court held that a company should bear the responsibility for repayment in accordance with the contract, and Zhang, as the vice president of the company, promised to provide unconditional full repayment guarantee for the loan with his family property, and should bear joint and several liability with the borrower, and accordingly ruled that Zhang should bear joint and several liability for the debts involved in the case. Zhang refused to accept the judgment of the first instance and entrusted the author to appeal. Grounds of Appeal 1. There are a large number of traces of alteration in the key evidence provided by Zheng in the first instance, and the alteration shall not be used as the basis for the final decision without Zhang's consent; 2, Zhang in this case is joint and several guarantee liability, the agreement did not agree on the guarantee period, and Zheng did not require Zhang to assume the guarantee responsibility within the statutory six-month guarantee period, Zhang's guarantee responsibility has long been exempted; 3, even if the court found that Zhang should bear the responsibility of guarantee, the statute of limitations of the main debt in this case has expired, as a guarantor of Zhang in accordance with the law to enjoy the main debtor's statute of limitations defense, no need to bear the responsibility of guarantee. The focus of the second trial dispute Whether Zhang is jointly and severally liable for the debts involved, I .e. whether Zhang's guarantee has exceeded the guarantee period. case analysis 1. On the issue of altered evidence The handwritten part at the bottom of the agreement, "divided into months at a rate of 10% per month" and "June 2001", was altered without Zhang's consent, and the above altered content is obviously beneficial to Zheng, so it has no legal effect on the above altered. Zhang, as the vice president and guarantor of the company, is deemed to have changed the repayment period of the debt involved in the case, that is, the performance period of the principal debt involved in the case should be "June 2001". 2. The question of whether the guarantee liability has passed the guarantee period. In this case, Zhang assumed joint and several guarantee liability, but the agreement involved in the case did not stipulate the guarantee period. Therefore, the guarantee period for Zhang to bear joint and several liability in this case should be six months after the expiration of the main debt performance period stipulated by law. In this case, Zheng did not provide evidence to prove that he required Zhang to bear the guarantee responsibility within six months from July 1, 2001, and should bear the adverse consequences. Therefore, Zhang's guarantee responsibility has been due to Zheng's failure to make a claim within the guarantee period. Exempt. Referee result After trial, the Jinan Intermediate People's Court revoked the original judgment of first instance that Zhang should bear joint and several liability for repayment, and changed the judgment to reject Zheng's claim against Zhang. Article Link Article 77 of the the People's Republic of China Contract Law "The contract may be changed if the parties agree through consultation. Where laws or administrative regulations stipulate that the modification of a contract shall be subject to approval, registration and other procedures, such provisions shall be followed." Article 78 of the the People's Republic of China Contract Law "If the parties are not clear about the content of the contract change, it is presumed that it has not been changed." Article 24 of the the People's Republic of China Guarantee Law "Where the creditor and the debtor agree to change the main contract, they shall obtain the written consent of the guarantor, and without the written consent of the guarantor, the guarantor shall no longer bear the guarantee liability. If it is otherwise agreed in the guarantee contract, it shall be in accordance with the agreement." Article 26 of the the People's Republic of China Guarantee Law "If the guarantor of joint and several liability guarantee and the creditor have not agreed on the guarantee period, the creditor shall have the right to require the guarantor to assume the guarantee liability within six months from the date of expiration of the period of performance of the independent debt. If the creditor fails to require the guarantor to assume the guarantee liability during the guarantee period agreed in the contract and the guarantee period specified in the preceding paragraph, the guarantor shall be relieved from the guarantee liability." Lawyer Reminder 1, for creditors, in order to avoid the guarantor out of the insurance, it is necessary to claim the guarantee liability to the guarantor or re-sign the guarantee contract within the guarantee period. 2. For the guarantor, the first is the defense that the guarantee period has passed the guarantee liability has been exempted, and the second is to exercise the defense rights of the principal debtor according to law, including the statute of limitations. 3. After the implementation of the Civil Code, the contents of the main creditor's rights and debts contract shall be changed without the consent of the guarantor, and if the debt is reduced, the guarantor shall still bear the guarantee liability for the changed debt, and if the debt is aggravated, the guarantor shall not bear the guarantee liability for the aggravated part. (Author: Zhang Wenhong)

2022-06-08

HR Legal Corner: Is the labor dispatch unit obliged to sign an indefinite labor contract?

Whether the labor dispatch unit should sign an indefinite labor contract with the dispatched workers is a problem often encountered in practice, and this paper will make a brief analysis of the above problems according to the relevant legal provisions and the judicial precedents of Jinan Intermediate People's Court and Shandong Higher People's Court. 1. relevant legal provisions 1. What is an open-ended labor contract? The first paragraph of Article 14 of the "Labor Contract Law" stipulates: "An open-ended labor contract refers to a labor contract in which the employer and the laborer agree that there is no definite termination time." 2. Under what circumstances should an open-ended labor contract be concluded? The second paragraph of Article 14 of the "Labor Contract Law" stipulates: "The employer and the laborer may conclude an indefinite labor contract through consultation. Under any of the following circumstances, if the laborer proposes or agrees to renew or conclude a labor contract, in addition to the laborer's proposal to conclude a fixed-term labor contract, an indefinite labor contract shall be concluded: The (I) worker has worked in the employing unit for ten consecutive years; When an (II) employing unit implements the labor contract system for the first time or when a state-owned enterprise is restructured to re-conclude a labor contract, the employee has worked in the employing unit for ten consecutive years and is less than ten years away from the legal retirement age; The (III) concludes two fixed-term labor contracts in succession, and the laborer does not have the circumstances specified in Article 39 and Article 40, Items 1 and 2 of this Law, and the labor contract is renewed. If the employer fails to conclude a written labor contract with the worker for one year from the date of employment, it shall be deemed that the employer and the worker have concluded an open-ended labor contract." 3. Relevant provisions of labor contract in labor dispatch mode The second paragraph of Article 58 of the "Labor Contract Law" stipulates: "The labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for more than two years, and pay labor remuneration on a monthly basis; the dispatched worker is not working, The labor dispatch unit shall pay it monthly remuneration in accordance with the minimum wage standard set by the local people's government." Focus question: If the dispatched worker meets the conditions of the second paragraph of Article 14 of the Labor Contract Law, should the labor dispatching unit sign an indefinite labor contract with the dispatched worker in accordance with the provisions of Article 14 of the Labor Contract Law? Or should it sign a fixed-term labor contract with the dispatched worker for more than two years in accordance with the provisions of Article 58 of the Labor Contract Law? 2. Court Views 1. Shandong Higher People's Court (2021) Lu Minshen No. 10597 Sun Aiying and Jinan Kaiderong Human Resources Co., Ltd. Labor Dispute Civil Application Retrial Review Civil Ruling Court view: In this case, the respondent signed a labor dispatch agreement with the outsider to send Sun Aiying to work in the outsider's office. The second paragraph of Article 58 of the "the People's Republic of China Labor Contract Law" stipulates that the labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for more than two years and pay labor remuneration on a monthly basis. According to the above provisions, there is no problem of signing an open-term labor contract between the labor dispatch unit and the laborer. Therefore, the applicant claims that the respondent should pay twice the salary of the non-fixed-term labor contract. There is no legal basis. 2. Jinan Intermediate People's Court (2020) Lu 01 Min Zhong No. 11484 Jinan Laiwu Human Resources Development Service Co., Ltd. and Zhang Jiulong and other labor disputes Second Instance (2020) Lu 01 Min Zhong 11484 Judgment Court view: The labor contract signed by Zhang Jiulong and Laiwu Human Resources Company on December 10, 2010 expired on December 9, 2014, and the two parties signed the second labor contract on April 26, 2015. It was more than four months after the expiration of the first contract, and Zhang Jiulong received economic compensation of 20131 yuan. According to this fact, it cannot be concluded that Zhang Jiulong and Laiwu Human Resources Company have entered into fixed-term labor contracts twice in a row. The first instance found that the two parties signed a labor contract with improper continuity. The second paragraph of Article 58 of the the People's Republic of China Labor contract Law stipulates that the labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for more than two years and pay monthly labor remuneration; during the period when the dispatched worker is not working, the labor dispatch unit shall pay monthly remuneration in accordance with the minimum wage standard set by the local people's government. According to this regulation, there is no problem of signing an open-ended labor contract between the labor dispatch unit and the laborer. At the same time, Zhang Jiulong's litigation request is to "continue to perform the labor contract", and the first instance regards it as a proposal to conclude an open-ended labor contract. The requirement of the contract, and based on this, it was ruled that it was improper for both parties to "perform the signing of an open-ended labor contract" and should be corrected. 3. Summary The second paragraph of Article 58 of the Labor contract Law is a special provision on the conclusion of labor contracts by labor dispatch units. Labor dispatch units only need to sign "fixed-term labor contracts of more than two years" with dispatched workers in accordance with this provision, and there is no problem of signing open-term labor contracts.

2022-06-07

Zhongcheng Qingtai. Real estate perspective: construction field identification start-up conditions and identification scope analysis.

1. issues raised Identification is an activity in which the appraiser uses specialized knowledge and skills, supplemented by necessary technical means, to detect, analyze and identify the specialized issues in dispute in the case. In the case disputes in the field of construction, due to the strong professionalism and technicality of the determination of engineering quantity, the calculation of project price, and the acceptance of project quality, when both parties have disputes over the facts of a certain case, they are often accustomed to applying to the people's court. Entrusted appraisal, through the third-party appraisal agency to issue an appraisal opinion to judge the disputed facts. Whether it is necessary to start the appraisal, how to determine the scope of the appraisal and how the court adopts the appraisal opinion is very important to the outcome of the case, and this paper intends to analyze the above problems through five cases. 2. Related Cases and Referee Views The (I) does not need to initiate an appraisal if it is possible to bring the facts to be proved to the standard of proof of "high probability" through other evidentiary materials. Case 1: Dispute over Construction Contract between Ningxia Huaji Biology Co., Ltd. and Zhongwei Roche Decorative Materials Firm and Ningxia Chengzhi Wansheng Biological Engineering Co., Ltd. (Wuzhong Intermediate People's Court of Ningxia Hui Autonomous Region [2020] Ning 03 Min Zhong No. 1007) The court held that the "Wansheng Office Building Reconstruction Project Construction Agreement" and the "Wu Zhong Wansheng Office Building Reconstruction Project List and Quotation" were signed by both parties after the completion of the project on September 23, 2019. As mentioned above, Zhang Wei, on behalf of Chengzhi Wansheng Company, approved the contract price of 278000 yuan, and Huaji Company paid 150000 yuan to the appellee Roche Firm after the agreement was signed, it is fully proved that the project funds involved in the case have been agreed by both parties through negotiation, so there is no need to start the appraisal to confirm the quantities of the appellee's construction, and it is not improper that the appraisal is not allowed in the first instance. As for the application for project cost appraisal submitted again by the appellant in court of the second instance, the court also did not approve the application for appraisal because the agreement and quotation list signed and approved by both parties have reached a fairly high standard of proof for the facts, and the appellant did not submit valid evidence in the second instance to reduce the probative force of the agreement, so the court also did not approve the application for appraisal. (II) the parties agree to settle the project price in accordance with the fixed total price, the people's court shall not support the request of a party to identify the cost of the construction project. Case 2: Qingdao Zhongxing-Shenyang Commercial Building (Group) Co., Ltd. and Shenyang Huiding Runda Technology Co., Ltd. Dispute over Construction Contract (Shenyang Intermediate People's Court of Liaoning Province [2022] Liao 01 Min Zhong No. 2471) The court held that, according to the 12.1 agreement of the contract, the contract was determined by means of a fixed total price, and the total price was not adjusted, except for the increase or decrease of the "project phase item" in the "partial project quantity list", and no adjustment was made to the transaction price under any other circumstances. As for the appellant's claim that there are multiple equipment available for use and the application for appraisal to finally determine the project price, the court believes that the available use is not directly related to the increase or decrease of the project and does not belong to the project involving "increasing or decreasing the project items other than the project items in the partial bill of quantities". it is not improper for the court of first instance to make adjustments according to the fixed total price agreed in the contract, and the court will not accept the appellant's claim. If the parties to the (III) dispute some of the facts of the case, only the disputed facts shall be appraised. Case 3: Ren Fenghua, Baye Construction Group Co., Ltd. and Guangxi Jinchuan Nonferrous Metals Co., Ltd. and Qinghai Branch of Baye Construction Group Installation and Construction Company (Guangxi Zhuang Autonomous Region Fangchenggang City Intermediate People's Court [2021] Gui 06 Min Zhong No. 533) The court held that the amount and cost of the completed project of Ren Fenghua belong to the basic legal facts of the case and should be found out. In this case, because Ren Fenghua and Baye Company had disputes over the quantities of some of the sub-projects involved and failed to reach an agreement, the quantities and cost of the disputed parts of the project should be determined through judicial appraisal. Eight Metallurgical Company appealed that the project involved in the case did not need to determine the project price through cost appraisal, and the court did not support it. (IV) the party with the burden of proof did not apply for appraisal in the first instance litigation, the court applied for appraisal in the second instance litigation. If the court deems it necessary, it shall send it back for retrial and initiate the appraisal. Case 4: Disputes over Construction Contracts of Construction Projects such as China Communications First Public Bureau Group Co., Ltd. and Fujian Boye Construction Group Co., Ltd. (Fujian Longyan Intermediate People's Court [2019] Min 08 Min Zhong No. 1249) The court held that the court should allow the parties to determine the project price through appraisal in the course of litigation, so as to safeguard the legitimate rights and interests of the actual construction. Huang Guosheng submitted appraisal applications after the expiration of the time limit for proof in the first instance and during the second instance of the court. According to Article 14 of the (II) of the Supreme People's Court on the Interpretation of Legal Issues Applicable to the Trial of Construction Contract Disputes, "the party with the burden of proof in the first instance litigation did not apply for appraisal, but did not pay the appraisal fee or refused to provide relevant materials, and applied for appraisal in the second instance litigation, if the people's court deems it really necessary, it shall deal with it in accordance with the provisions of paragraph 1, paragraph 3, of Article 170 of the Civil procedure Law." The case shall be sent back to the court of first instance for retrial and the appraisal procedure shall be initiated. On the basis of the facts of the case, the (V) judge should use the judicial power to review the appraisal opinions, so as to avoid the situation of "trial by reference" Case 5: Civil Ruling of Second Instance on Disputes over Construction Contracts of China Chemical Engineering Ninth Construction Co., Ltd. and Xinjiang Meihuite Petrochemical Products Co., Ltd. (Xinjiang Uygur Autonomous Region Higher People's Court [2021] Xinmin Final No. 340) The court held that the court of first instance did not examine and determine the inferential opinions in the appraisal opinion. In this case, 17 items of inferential opinions with an amount of about 19.7 million yuan are listed separately in the appraisal opinion. The court of first instance only reviewed and confirmed one item and partially accepted the appraisal opinion. For the remaining 16 items, Meihui Company did not submit valid evidence to prove that its objection was established, and all the appraisal opinions were accepted without review and confirmation. The essence of the appraisal opinion is evidence. In addition to reviewing its legality, the people's court should also make full use of the parties' objections and the response of the appraisal agency to review the scientificity, objectivity and rationality of the appraisal opinion, combined with other evidence in the case and the parties' The plea and defense opinions make an accurate determination of relevant specialized issues close to objective facts, so as to avoid using appraisal instead of trial. To sum up, the court of first instance found that the basic facts of the case were unclear. 3. Summary 1, through the above cases, the referee's point of view can be seen, not all controversial matters in the field of construction need to be identified. In view of the long time and high cost of the appraisal of construction projects, unless the facts of the case cannot be ascertained without appraisal and the facts have an impact on the outcome of the case, the appraisal should be used with caution. Article 28 of the "Judicial Interpretation of Construction Projects" "If the parties agree to settle the project price at a fixed price, and one party requests to appraise the construction project cost, the people's court will not support it" and Article 31 "If the parties have disputes over some of the facts of the case, only the disputed facts are appraised, but the scope of the disputed facts cannot be determined, or the parties request to appraise all the facts" is a manifestation of prudent initiation of appraisal. At the same time, it should be noted that "only the identification of disputed facts" is an advocacy provision, which aims to shorten the litigation time and reduce the litigation cost. The proviso of this article reflects the full respect for the opinions of the parties. 2. The "fixed price" stipulated in Article 28 of the Judicial Interpretation of Construction Projects refers to the fixed total price contract signed by both parties and the design changes other than those agreed upon by both parties have not occurred in the performance of the contract. Otherwise, in the case that the existing evidence cannot determine the cost of the change part, the appraisal still needs to be started. In addition, if the parties sign a fixed unit price contract, it is not affected by the above clause, because the fixed unit price only determines the price per unit area, it is necessary to multiply the unit price by the amount of work after determining the amount of work. If the two parties have different opinions on the quantity of work and cannot be determined by the existing evidence, identification is still required. 3. If the party with the burden of proof fails to apply for appraisal in the first instance litigation, and if the court applies for appraisal in the second instance litigation, the court considers it necessary to initiate the appraisal. The "really necessary" here should include two levels: one is that it is necessary to start the appraisal to find out the facts of the case; the other is that it is necessary to start the appraisal for a fair and just trial of the case. 4. Although the appraisal opinion plays an important role in identifying specialized issues in dispute cases, it is only one of the forms of legal evidence. Whether the judge finally accepts the appraisal opinion and uses it as the basis for determining the facts of the case still needs to be fully cross-examined by the parties and comprehensively analyzed and judged in combination with the basic facts of the case and other evidence, so as to effectively avoid the situation of "trial by reference.

2022-06-03

J & T Capital Watch... Foreign natural person shareholders to explore the issue of dividend tax.

At present, with the increasingly strict requirements of IPO audit, the issue of tax payment has been paid more and more attention. In practice, there are situations where the issuer's shareholders are foreign natural persons or where the actual controller is a foreign natural person after penetration verification. This paper intends to start from the issue of paying dividends to foreign natural person shareholders, with a view to discussing with you. 1. related regulations According to the Notice of the Ministry of Finance and the State Administration of Taxation on Certain Policy Issues Concerning Individual Income Tax jointly issued by the Ministry of Finance and the State Administration of Taxation in 1994 (Cai Shui Zi [1994] No. 20): "... 2. the following income shall be temporarily exempted from individual income tax: (viii) Income from dividends and bonuses received by foreign individuals from foreign-invested enterprises." And according to the "Announcement of the Ministry of Finance and the State Administration of Taxation on the Continued Effective Individual Income Tax Preferential Policy Catalogue" (No. 177 of 2018) jointly issued by the Ministry of Finance and the State Administration of Taxation in 2018: "The catalogue of documents involved in the continued effective individual income tax preferential policy includes:... Notice of the Ministry of Finance and the State Administration of Taxation on Certain Policy Issues Concerning Individual Income Tax" (Caishuizi [1994] No. 20)... ". However, in 2013, the State Council issued the "Notice of the State Council on Approving and Transforming the Opinions of the Development and Reform Commission and Other Departments on Deepening the Reform of the Income Distribution System" (Guo Fa [2013] No. 6), which stated: "14. Strengthen the adjustment of personal income tax. Accelerate the establishment of a comprehensive and classified personal income tax system. We will improve the collection, management and punishment measures of personal income tax for high-income earners, bring all kinds of income into the scope of collection, establish and improve the two-way declaration system of personal income and the national unified taxpayer identification number system, and collect all receivables in accordance with the law. Abolish tax incentives such as exemption from personal income tax on dividends and bonus income received by foreign individuals from foreign-invested enterprises." However, since the State Administration of Taxation has not officially issued a document to cancel this tax preference, from the practical point of view of tax collection and management, different regions have different ways of interpreting and implementing the policy. For example, the tax authorities in Shanghai, Fujian, Hubei and other regions, in accordance with the State Council [2013] No. 6, cancel the foreign individuals from foreign-invested enterprises to obtain dividends, dividends income exemption from personal income tax and other tax incentives. However, the tax authorities in Guangdong, Ningbo and Anhui believe that Caishuizi [1994] No. 20 is still valid, and the dividends and bonus income obtained by foreign individuals from foreign-invested enterprises are temporarily exempted from personal income tax. Examples of 2. practical operations In the process of Yingke Xinchuang (Xiamen) Technology Co., Ltd. applying for listing on the Growth Enterprise Market, Shenzhen Stock Exchange issued an examination letter [2021) No. 010929 "examination and inquiry letter on the application documents for initial public offering and listing on the Growth Enterprise Market of Yingke Xinchuang (Xiamen) Technology Co., Ltd.", in which question 22. Regarding dividend distribution, it is stated that the issuer is requested to explain the compliance of previous dividend taxation. The issuer's sponsor issued a response report to the audit inquiry letter, responded to the aforementioned questions and explained the exemption of the foreign natural person shareholder LIANG CHEN from personal income tax as follows: "Note 2: according to the Notice of the Ministry of Finance and the State Administration of Taxation on Several Policy Issues of Individual Income Tax (Caishuizi [1994) No. 20) and the Announcement of the Ministry of Finance and the State Administration of Taxation No. 177 of 2018 on the Continued Effective List of Individual Income Tax Preferential Policies" Announcement "and other relevant regulations, dividends and bonus income received by foreign individuals from foreign-invested enterprises are temporarily exempted from individual income tax; therefore, LIANG CHEN as a foreign natural person in the company to obtain dividends can be exempted from personal income tax." At this time, the intermediary agency adopts the provisions of Caishuizi [1994] No. 20, and foreign natural person shareholders are exempt from paying personal income tax. To sum up, in the IPO process, if you are involved in the issue of paying dividends to foreign natural person shareholders, you should not only fully search the relevant regulations of our country, pay attention to the validity period of the regulations, but also focus on the different tax laws of local tax bureaus. Interpretation and corresponding implementation.

2022-06-01

Zhongcheng Qingtai | HR Legal Corner: What do you think of this sentence?

The resignation document often contains a similar sentence that "there is no labor dispute between the laborer and the employer", which may be the resignation report signed by the laborer, the resignation certificate unilaterally drawn up by the employer, or the labor contract termination agreement jointly signed by both employers and employees, or even the settlement agreement signed by both employers and employees at the stage of labor arbitration. So in practice, how important is the phrase "there is no labor dispute between workers and employers"? Does it have different effects in different forms of documents? This paper briefly combs this. 1. Resignation report signed by the worker The People's Court of Jiefang District, Jiaozuo City, Henan Province (2021) Yu 0802 No. 4003 Minchu, Jiaozuo City Zhongxin Human Resources Service Co., Ltd., Wang Guixia and other civil judgments of first instance in personnel disputes Court view: Because Wang Guixia's resignation application issued to Zhongxin Company clearly stated that she did not have any labor disputes with Zhongxin Company, Wang Guixia, as a person with full civil capacity, can fully identify and control her behavior, and she should issue her own resignation. The report has a full understanding and foresees the relevant consequences that may arise from it. The resignation report involved in the case stated that "I have no labor dispute with Zhongxin Company", which should be regarded as Wang Guixia's punishment of her rights and voluntarily bear the legal consequences arising therefrom. In this case, Wang Guixia's claim in this case is obviously contrary to her promise in the resignation report, and also violates the principle of good faith in civil litigation. Therefore, the court does not support Wang Guixia's above request. Court of second instance The Intermediate People's Court of Jiaozuo City, Henan Province made a judgment (2022) Yu 08 Minzhong No. 610 to support the trial point of the court of first instance and maintain the original judgment. 2. Certificate of resignation signed by the worker Beijing No.3 Intermediate People's Court (2022) Beijing 03 Minzong No. 1047 Civil Judgment of Second Instance on Labor Dispute between Beijing Anlilong Ecological Agriculture Co., Ltd. and Guan Guixia Court view: The focus of the dispute in this case is whether Anlon should pay a one-time disability employment subsidy to Guan Guixia. If Guan Guixia suffered a work-related injury during her employment and left her job for personal reasons, Anlon shall pay Guan Guixia a one-time disability employment subsidy in accordance with the law. Amylon appealed that Guan Guixia signed the resignation certificate to prove that Guan Guixia approved the contents of the resignation certificate. However, the court held that the resignation certificate was unilaterally issued by Amylon, and Guan Guixia's signature could only prove that she had received the resignation certificate, which could not reflect that Amylon and Guan Guixia had negotiated and reached an agreement on the contents of the resignation certificate. On this ground, Anlon refused to pay a one-time disability employment subsidy, which was not supported by the hospital. 3. The employer and the employee sign an agreement to terminate the labor contract. People's Court of Heping District, Shenyang City, Liaoning Province (2021) Meng Fanchun, No. 26208, Liao 0102 Minchu 19587, Beijing Hualian Supermarket Co., Ltd. Shenyang Third Branch Civil Judgment of First Instance on Labor Dispute and Personnel Dispute Court view: The plaintiff Meng Fanchun (Party B) and Changchun Satellite Road Branch of Jilin North Hualian Supermarket Co., Ltd. (Party A) signed the "Agreement on Dissolution of Labor Contract". Article 2 of the agreement stipulates that both parties have completed the settlement of employment matters such as wages, economic compensation, vacation, overtime, social security and provident fund. After the signing of this agreement, all rights and obligations arising from the labor relationship between the two parties have been terminated, and there is no labor dispute between the two parties, and no further disputes or lawsuits may be filed on the labor relationship. After the agreement is signed, Party A shall pay Party B a one-time economic compensation of 23760.90 yuan (already paid). The plaintiff and the employing unit Jilin North Hualian Supermarket Co., Ltd. Changchun Satellite Road Branch have signed the "Agreement on Dissolution of Labor Contract", which has already agreed on annual leave wages and economic compensation for dissolution of labor contract. The plaintiff filled in the "Application for Resignation of Beijing Hualian Employees" and stated that the reason for the dissolution was dissolution by consensus... The plaintiff had received the amount agreed in the dissolution agreement in this case, because the dissolution of the "Labor Contract Dissolution Agreement" had been fulfilled, so the court did not support the plaintiff's two claims. 4. The employer and the worker sign a settlement agreement at the stage of labor arbitration. People's Court of Gangzha District, Nantong City, Jiangsu Province (2020) Su 0611 Minchu No. 430 Liu Zonghong and Nantong Sanming Fashion Co., Ltd. Civil Judgment of First Instance on Labor Dispute The court's view: The agreement reached between the laborer and the employer on the cancellation or termination of the labor contract, the payment of wages, overtime pay, economic compensation or compensation, etc., does not violate the mandatory provisions of laws and administrative regulations, and there is no fraud, Coercion or the situation of taking advantage of people's danger shall be deemed valid. In this case, Liu Zonghong and Sanming Company reached a settlement agreement under the auspices of the Gangzha Arbitration Commission, which did not violate the mandatory provisions of laws and administrative regulations. Liu Zonghong also failed to provide evidence to prove the existence of fraud, coercion or taking advantage of others, so it should be determined that the settlement agreement is legal and effective, and both parties should be bound by the content of the agreement. The settlement agreement stated that the labor relationship between the two parties will be terminated on July 25, 2019, and there will be no labor disputes including the termination of labor relations, labor remuneration, etc. after the payment is agreed. Liu Zonghong also stated again after receiving the payment. There is no labor dispute with Sanming Company. The above facts show that the labor disputes between Liu Zonghong and Sanming Company including the payment of labor remuneration and economic compensation have been fully resolved. Liu Zonghong now requires Sanming Company to pay the salary and economic compensation for July 2019 (actually claiming the salary difference and the expected salary for not providing labor during the labor contract period), which violates the agreement of the settlement agreement. Moreover, Liu Zonghong also fails to provide evidence to prove the fact that Sanming Company actually worked in July 2019 and did not pay the salary and the wage income difference in the previous period, in addition, Sanming Company is required to pay the wages after the termination of the labor relationship, which has no factual and legal basis. Therefore, the court does not support Liu Zonghong's claim. Summary: If the worker is a person with full capacity for civil conduct, voluntarily promises unilaterally, or signs an agreement to terminate the labor contract and a settlement agreement stating that "there is no labor dispute between the worker and the employer", the court's view is that the worker should follow The principle of good faith fulfills the promises and agreements. However, if the laborer only signs the resignation document issued unilaterally by the employer stating that "there is no labor dispute between the laborer and the employer", the court's view is that the signing act cannot prove that the laborer and the employer have negotiated and reached an agreement on this, and can only be regarded as an act of signing.

2022-05-31

Viewpoint. The legal nature and effect of the transfer and repurchase business model of stock income rights.

Introduction In recent years, the use of stock income rights transfer and repurchase as a capital financing model of the case shows an increasing trend, the business model application scenario is usually the financier due to stock restrictions or other reasons, it is not appropriate or can not directly transfer the stock, and instead to the underlying stock corresponding to the stock income rights as the subject, signing agreements on the transfer and repurchase of stock proceeds with funders (usually financial institutions or financial institutions such as trust companies, securities companies, asset management companies), supplemented by security measures such as stock pledges, to achieve the purpose of financing by assuming the obligation to repurchase the underlying stock proceeds at the agreed amount at the agreed time or when the agreed conditions are triggered. At present, China's laws and regulations for the business model has no clear provisions to be stipulated, the lack of a unified standard of identification, there are different views in practice, the author through the search of recent typical cases, a probe into the legal nature and effectiveness of the business model, for the reader's reference. Basic architecture and related elements of the business model (I) basic architecture The basic structure of the stock yield transfer and repurchase business model can be considered to include two stages: 1. Investment stage: the investment direction to the financier to pay the transfer price of the stock income right, the financing direction to the investor to transfer the stock income right; 2. Investment recovery stage: The financing direction buys back the right of return to the investor and pays the repurchase to the investor. (II) other relevant elements According to existing cases, in the stock income right transfer and repurchase business, in addition to the basic elements such as transfer price, repurchase price, investment period, etc., there are usually several other relevant elements, such: 1. Credit enhancement measures: usually a pledge of the underlying stock, as well as joint and several liability guarantees provided by the owner of the stock and its concerted action or related parties, and may also include other forms of security such as real estate mortgages. 2. Liquidated damages: usually based on the total amount of the transfer or overdue payments, multiplied by a fixed daily or annual interest rate. It is worth noting that there are different agreement methods for the amount of repurchase payable by the financier. In simple terms, it can be divided into fixed mode (based on the transfer price, floating according to the fixed repurchase premium rate, and determining the amount of repurchase) and floating mode (including but not limited to: the higher of the fixed premium rate and the average price of the 20 trading days before the repurchase date, or in addition to the fixed repurchase price, the total proceeds of the stock during the transfer of the stock income right shall be owned by the investor, etc.). case analysis Due to the stock income right transfer and repurchase business is in the ascendant, and the current laws and regulations lack of clear provisions, the number of relevant judicial precedents is relatively limited. Through the author's search and analysis, the dispute over the validity of the contract under the business model is relatively small, and the court's views are basically the same, that is, unless there is a violation of relevant laws and administrative regulations (usually in the field of securities capital market), as long as the contract is the true intention of both parties, that is, a positive attitude towards the validity of the contract. However, the court's views on the determination of the legal nature of the contract are different, and the determination of the legal nature has a direct impact on the realization of the purpose of the transaction, such as whether the repurchase premium and liquidated damages are subject to the restrictions on the upper limit of private lending interest rates in the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases. The (I) is based on the principle of penetrating judicial review and is determined to be a loan or loan contract. 1.(2017) Supreme Law Minzong No. 907 (Civil Judgment of Second Instance on Contract Disputes between Beijing Tianyue Investment Development Co., Ltd. and Anxin Trust Co., Ltd.) Transaction Structure: On September 18, 2013, Tianyue Company and Anxin Company signed the Agreement on Transfer and Repurchase of Equity Income Rights, agreeing that Anxin Company shall use its entrusted trust property to transfer the equity income rights corresponding to 100% equity of Tianyue Company held by Tianyue Company at a transfer price of 0.3 billion yuan. The transfer period is from September 18, 2013 to September 17, 2015. Upon the expiration of the transfer period, Tianyue Company shall return all the transfer money and pay the repurchase premium. Premium = base price x 13.5 per cent/year x transfer term start date to transfer expiry date/360. Credit enhancement measures: 1. Wang Junying and Huang Beihai provide joint and several guarantee liability for all debts under the equity income transfer contract; 2. Tianyue Company provides mortgage guarantee for all debts under the above equity income transfer contract with the land use right and construction in progress of Tianyu New Town Building, a farm located in the eastern suburb of Beijing, and has gone through mortgage registration. Validity of the contract: 1. Tianyue Company financed funds by signing the Equity Income Right Transfer and Repurchase Agreement with Anxin Company. The purpose of the contract is legal and does not belong to the contract invalid situation of "concealing illegal purpose in legal form" stipulated in Item 3 of Article 52 of the Contract Law; 2. Tianyue Company's proof is not enough to prove that the case involves malicious collusion, arbitrage of funds from financial institutions and usury on-lending, there is no violation of the provisions of Article 43 of the Commercial Banking Law on banks not to engage in trust investment; 3. It cannot be proved that the business under the "Equity Income Right Transfer and Repurchase Agreement" in this case was established by Shengjing Bank Beijing Branch with the property that is not allowed to establish a trust, thus violating the relevant provisions of the Trust Law; 4. There is also no evidence to prove that the Agreement on the Transfer of Equity Income Rights and Repurchase is invalid in the case of "violation of the mandatory provisions of laws and administrative regulations" as stipulated in Article 52, paragraph 5, of the Contract Law. In summary, the agreements involved in the case are the true intentions of the parties, and they are established in accordance with the law and have legal effect. The nature of the contract: the people's court shall make a comprehensive judgment on the nature of the civil contract according to the true intention of the parties reflected in the terms of the contract, combined with the real purpose of signing the contract and the actual performance of the contract. The "Equity Income Right Transfer and Repurchase Agreement" formally conforms to the "buy-and-sell" model stipulated in the "Measures for the Administration of Trust Companies", but according to the specific terms and the actual performance of the agreement, Anxin Company has no real intention to buy the equity income right involved in the case and bear the corresponding risks. First, Anxin only indirectly obtains the underlying equity income and does not participate in the management of the underlying equity. Second, although the agreement stipulates that Anxin has the right to obtain the equity income of Tianbiao, the agreement also stipulates that Tianyue shall not distribute profits in any form during the performance period, and the fact that the underlying equity is pledged to Anxin also limits the possibility of realizing the income of the underlying equity. Third, there is no proof that the transfer consideration of the underlying equity income right agreed in the agreement is in line with the market value, and the consideration of the return of the underlying equity income right is directly increased by a fixed proportion of the premium on the basis of the purchase consideration paid by it, and Anxin does not bear the risk during the period of buying the underlying equity income right. In summary, the Equity Income Rights Transfer and Repurchase Agreement is not, in essence, a "buy-back" contract as stipulated in the Measures for the Administration of Trust Companies. According to the specific stipulations of the Agreement on Transfer and Repurchase of Equity Income Rights and the fact that Tianyu Company, Wang Junying and Huang Beihai provided guarantee for Tianyue Company to perform the agreement, the main contract purpose of Tianyue Company is to finance the capital from Anxin Company, and the main contract purpose of Anxin Company is to collect relatively fixed capital income from Tianyue Company, the court held that the real purpose of the transaction between the parties was to finance the money in the name of the price by selling and then buying back. Since the "Agreement on Transfer of Equity Income Rights and Repurchase" involved in the case was not a famous contract stipulated in the Contract Law, the first instance judgment was handled according to the nature of the agreement with reference to the relevant provisions of the most similar loan contract in the sub-rules of the Contract Law. 2.(2019) Shaanxi Minzong No. 699 (Zeng Huijing, Cai Sixia, Shaanxi International Trust Co., Ltd. and Zhuang Min, Yu Cuifeng Business Trust Dispute Second Instance Civil Judgment) Transaction Structure: On March 6, 2017, Shaanxi State Investment and Cai Sixia signed the "Stock Income Right Transfer Contract", agreeing that Shaanxi State Investment will transfer the income right of 1.5 million restricted shares of Baoqianli Company held by Cai Sixia with trust funds, and Cai Sixia will pay the income right of the shares as agreed, with an interest rate of 8%/year. Credit enhancement measures: stock pledge, joint and several liability guarantee. Contract validity: The contract is valid. First of all, there is no invalidity of the contract that "covers up illegal purposes in a legal form"; secondly, the Trust Contract of Shaanxi International Investment Corporation confirms that its funds are derived from the trust funds delivered by the Federal Reserve Securities Huixiang No. 1 Collective Asset Management Plan represented by the principal Federal Reserve Securities, and there is no violation of Article 43 of the Commercial Bank Law that banks are not allowed to engage in trust investment. The nature of the contract: the transaction is the trust company after the establishment of the fund trust, to raise the trust funds to transfer the right to the income of specific assets, belongs to the trust company after the funds raised in accordance with the law, the resulting dispute should not be recognized as a business trust dispute. The transaction structure in this case is such that Shaanxi Guotou does not have to bear any risk of stock income rights, even if the income is zero, it can obtain a fixed income through repurchase. In summary, the main purpose of Cai Sixia's contract is to finance funds from Shaanxi Guotou, the main purpose of Shaanxi Guotou's contract is to collect relatively fixed capital income from Cai Sixia, the real purpose of the transaction between the two sides is to finance funds in the name of price by selling and then buying back. The Contract for the Transfer of Stock Income Rights in the Case is not a well-known contract under the Contract Law, and according to the nature of the agreement and the true intention of the parties, it should be handled in accordance with the relevant provisions of the loan contract in the sub-rules of the Contract Law. (II) identified as a trust legal relationship, or clearly defined not as a private lending legal relationship 1.(2016) Supreme Law Minzong No. 231 (Civil Judgment of Second Instance on Business Trust Dispute between Minmetals International Trust Co., Ltd. and Guangxi Nonferrous Metals Group Co., Ltd.) Transaction structure: In 2014, Minmetals Trust and Nonferrous Metals Company signed the Equity Income Rights Transfer and Repurchase Contract, stipulating that the Nonferrous Metals Company will transfer 87.37 of its equity income rights of the recycled metal company to the trust company. The trust company accepts the equity income rights with the trust funds raised under the trust company-Nonferrous Metals Company Equity Income Rights Investment Collective Fund Trust Plan initiated and established by the trust company, the transfer price is RMB 0.5 billion. After the trust company acquires the specific equity income right, the non-ferrous metal company repurchases all the specific equity income right and pays the repurchase price in accordance with the contractual period. Contract validity: The contract is valid. Nature of the contract: According to the trust company-non-ferrous metal company equity income right investment pooled fund trust plan, the trust company and the off-the-case principal formed a trust legal relationship; according to the Repurchase Contract, the trust company and the non-ferrous metal company formed a legal relationship between the equity income right resale repurchase. According to the trust industry regulatory provisions such as the Measures for the Administration of Trust Companies and the Measures for the Administration of Collective Funds Trust Plans of Trust Companies, under specific trust plans, trust companies may adopt trust fund management models such as "buy-and-sell. The trust company manages the trust funds by means of equity income right transfer and repurchase, and issues the corresponding trust plan, which is different from the trust loan business. Article 2.1 of the Repurchase Contract states: "The right to the proceeds of a particular asset acquired by the Trust and all proceeds generated by it are attributed to the trust property." The agreement states that any income generated by a particular asset belongs to the trust company during the period in which the trust company acquires the right to income from a particular asset. Therefore, the trust's income is not fixed income and the repurchase price should be the minimum income. The business content of the contract is the normal business activities of the trust company. After the signing of the "repurchase contract" in this case, the trust company has fulfilled the filing procedures with its supervisory unit, the Qinghai Banking Regulatory Bureau, and the Qinghai Banking Regulatory Bureau has not put forward rectification opinions. The court of first instance found that the nature of the contract in this case was a business trust, which was not improper. The appellant's non-ferrous metals company's appeal that the contract in this case is a business trust is actually a loan cannot be established. In addition, neither the first nor the second instance of this case supported the defense and appeal request of the defendant non-ferrous metal company to adjust the liquidated damages (five ten thousandths of the overdue payment plus 10% of the transfer price). 2.(2020) E Min Zhong No. 524 (Civil Judgment of Second Instance on Disputes over Securities Repurchase Contracts of Tianfeng Securities Co., Ltd. and Foshan Zhongji Investment Co., Ltd.) Transaction Structure: On May 15, 2017, Zhongji Company and Tianfeng Securities signed the Stock Income Rights Transfer Contract, agreeing that Tianfeng Securities will transfer the 17 million shares of Oupu Company (stock code: 002711) held by Zhongji Company with entrusted funds, and Zhongji Company will pay the realization amount of the stock income rights according to the agreed amount within the agreed time, the payment date for the realization of the underlying stock income right is the date when Zhongji Company has paid the purchase price for the underlying stock income right for one year, that is, May 18, 2018. Zhongji Company agrees to pay the realization amount of the underlying stock income right at RMB 183000000 yuan ×(1 + return on stock income right investment [6.2] × actual number of days within the plan period/360). Credit enhancement measures: stock pledge guarantee, joint and several liability guarantee. Contract validity: The contract is valid. Nature of the contract: According to the trust company-non-ferrous metal company equity income right investment pooled fund trust plan, the trust company and the off-the-case principal formed a trust legal relationship; according to the Repurchase Contract, the trust company and the non-ferrous metal company formed a legal relationship between the equity income right resale repurchase. According to the trust industry regulatory provisions such as the Measures for the Administration of Trust Companies and the Measures for the Administration of Collective Funds Trust Plans of Trust Companies, under specific trust plans, trust companies may adopt trust fund management models such as "buy-and-sell. The trust company manages the trust funds by means of equity income right transfer and repurchase, and issues the corresponding trust plan, which is different from the trust loan business. Article 2.1 of the Repurchase Contract states: "The right to the proceeds of a particular asset acquired by the Trust and all proceeds generated by it are attributed to the trust property." The agreement states that any income generated by a particular asset belongs to the trust company during the period in which the trust company acquires the right to income from a particular asset. Therefore, the trust's income is not fixed income and the repurchase price should be the minimum income. The business content of the contract is the normal business activities of the trust company. After the signing of the "repurchase contract" in this case, the trust company has fulfilled the filing procedures with its supervisory unit, the Qinghai Banking Regulatory Bureau, and the Qinghai Banking Regulatory Bureau has not put forward rectification opinions. The court of first instance found that the nature of the contract in this case was a business trust, which was not improper. The appellant's non-ferrous metals company's appeal that the contract in this case is a business trust is actually a loan cannot be established. In addition, neither the first nor the second instance of this case supported the defense and appeal request of the defendant non-ferrous metal company to adjust the liquidated damages (five ten thousandths of the overdue payment plus 10% of the transfer price). 3.(2021) Jingmin Zhongzhong No. 367 (Civil Judgment of Second Instance on Contract Dispute between Shanghai Nuomu Investment Center (Limited Partnership) and Beijing Zhongrong Wenda Asset Management Co., Ltd.) Transaction Structure: On April 17, 2017, Shanghai Nomu and Zhongrong Wanda signed the "Stock Income Right Transfer and Repurchase Contract", which stipulates that Party A's holdings of Metano (stock code: 300038) limited sale period stock pair

2022-05-30

Case statement. Analysis of the impact of the value of the lease on the financial leasing business.

Introduction The value of the lease is the consideration of the legal relationship of the financial lease, in practice, the value of the lease affects the legal relationship of the financial lease, there are two main situations, one is low value high sale, one is high value low sale. Judicial practice on the two forms of financial leasing legal relationship of the determination and default adjustment of the dispute, the legal relationship as a loan will also affect the amount of claims and expand the risk of litigation collection, through a brief analysis of this article. The value of 1. lease affects the legal relationship of financial lease. (I) low value high selling Low-value high-selling means that the purchase price of the lease under the financial lease contract is significantly higher than the value of the lease under the contract. Low-value high-selling does not comply with Article 735 of the Civil Code: "A financial lease contract is a contract in which the lessor purchases the leased property from the seller according to the lessee's choice of the seller and the leased property, provides it to the lessee for use, and the lessee pays the rent." The financial and financing attributes of the legal relationship of the financial lease. In this case, the lessor's choice of lease is not sufficient to secure the rental claim, but rather to attach the security of its claim to the security contract. In practice, the agreement on the valuation, sale and residual value of the leased property in this case violates the rules of the legal relationship of financing, and the situation is mostly recognized as a legal relationship of lending rather than a legal relationship of financial leasing. Reference case 1, Tianjin municipal construction and development co., ltd., Tianjin Shengli hotel co., ltd. financial lease contract dispute second instance civil judgment (2020) supreme law min zong 1154 Referee's view: After-sale lease back refers to the lease itself is owned by the lessee, the lessee in order to achieve its financing purposes, the ownership of the property transferred to the lessor, and then leased back from the lessor of the transaction. In this case, the transfer price of the leased property (Shengli Hotel) under the Lease Back Sales Contract is only 350000000 yuan, which is obviously lower than its actual value of 601728000 yuan. Therefore, the court of first instance found that there is no real financial leasing relationship between Great Wall Leasing Company, Datong Leasing Company and Shengli Hotel, and it is not improper to establish a legal relationship of private lending in essence. The court has no objection to this. (II) high value low buy High-value low-buy is the purchase price of the lease under the financial lease contract is significantly lower than the value of the lease. There is a dispute in judicial practice on whether the high value and low purchase agreed in the financial lease contract establishes the legal relationship of financial lease. Reference case 2, ICBC Financial Leasing Co., Ltd., Tongling Dajiang Investment Holdings Co., Ltd. financial leasing contract dispute retrial civil judgment (2018) Supreme Famin re -373. Referee's opinion: The purchase price of the leased property in the Financial Leasing Contract is much higher than the actual value of the leased property involved in the case. As a professional financial leasing institution, ICBC purchases the leased property at a price more than ten times higher than the market value. Obviously, it deviates from the principle of equivalent exchange of sales contracts, and its rent does not reflect the true value of the leased property. The original trial found that the relationship between ICBC and Warner was an inter-enterprise lending relationship and there was nothing wrong with it. Reference case 3, case name: Jiangsu reinsurance financial leasing co., ltd., Nanjing international leasing co., ltd., Anhui hengshun fangzhou shipbuilding industry co., ltd. ship financial leasing contract dispute second instance judgment case no:(2017) e min zong 1057 Referee's Opinion: Although the cost of the ship involved is 171 million yuan, which is much higher than the price of the Sales Contract of 60 million yuan, the sales contract in the financial lease is different from the sales contract of the general subject matter. The price of the subject matter of the sales contract in the financial lease is usually determined by reference to the financing amount, not the actual value of the subject matter. After the expiration of the lease term and the buyer recovers the full rent, the buyer usually transfers the ownership of the lease to the lessee at a very low nominal price, so the plaintiff in this case purchased the 'Hengshunda 191 'round at a price of 60 million yuan in line with the practice of the financial leasing industry, legal and effective. The judgment point of reference case 2 is different from that of reference case 3. The point of reference case 2 is that low-value and high-value purchase obviously deviates from the principle of equivalent exchange in the sales contract, and the rent stipulated in the financial lease contract cannot obviously reflect the actual value of the leased property. Because the leased property cannot be purchased according to the purchase price of the leased property, it does not conform to the financing property of the financial lease contract and belongs to the legal relationship of borrowing. The point of view of case 3 is that the lease of a financial lease contract is usually determined by reference to the amount of financing, not by reference to the actual value of the subject matter. This paper holds that the lease agreed in the financial lease contract is a guarantee measure for rent claims, and high-value low-buy is common in the after-sale lease back business, according to the Supreme People's Court on the application.<中华人民共和国民法典>有关担保制度的解释》第六十五条“当事人请求参照民事诉讼法“实现担保物权案件”的有关规定，以拍卖、变卖租赁物所得价款支付租金的，人民法院应予准许。”法律允许承租人通过申请评估拍卖租赁物的方式清偿租金债务，出租人未受偿的租赁物处置款归承租人，因此高值低买不违反等价交易的法律原则。另外，租赁物购买价款并非参照租赁物的实际价值，而是根据融资金额确定。租赁物、抵押物等担保措施的抵押率按照市场规律也各不相同，有的动产（设备）、不动产抵押率可以达到30%，因此高值低买不影响认定融资租赁法律关系。   （三）租赁物低值高卖的参考标准   对于是否属于明显高价及如何确定租赁物的价值，根据《融资租赁司法解释》第十二条规定，诉讼期间承租人与出租人对租赁物的价值有争议的，人民法院可以按照融资租赁合同的约定确定租赁物价值；融资租赁合同未约定或者约定不明的，可以参照融资租赁合同约定的租赁物折旧以及合同到期后租赁物的残值确定租赁物价值。承租人或者出租人认为依前款确定的价值严重偏离租赁物实际价值的，可以请求人民法院委托有资质的机构评估或者拍卖确定。另据《最高人民法院关于适用<中华人民共和国合同法>Article 19 of the (II) for Interpretation of Certain Issues (currently invalid) stipulates that for the "obviously unreasonable low price" stipulated in Article 74 of the Contract Law, the people's court shall use the judgment of the local general operator of the transaction, and refer to the transaction At the time of the transaction, the price department guide price or market transaction price, combined with other relevant factors to confirm it. If the transfer price does not reach the guiding price of the trading place at the time of the transaction or the 70% of the market transaction price, it can generally be regarded as an obviously unreasonable low price; if the transfer price is higher than the local guiding price or the 30% of the market transaction price, it can generally be regarded as an obviously unreasonable high price. The adjustment standard of 2. on the liability for breach of contract in the legal relationship of financial leasing in judicial practice. This paper summarizes the adjustment methods of the liability for breach of contract such as interest on overdue rent occupation and default payment in the case of overdue rent repayment by the lessee in practice. Specifically. (I) Jinan Court Financial Leasing Legal Relationship The adjustment method of the lessee's liability for breach of contract such as interest on overdue rent occupation and liquidated damages in the case of overdue rent repayment. 1-Before 2020 Case 1: First Instance of Disputes over Financial Leasing Contracts between Cathay Pacific Leasing Co., Ltd. and Gaoqing Juxin Infrastructure Investment Co., Ltd. (2020) No. 21 Judgment of Lu 01 Minchu The hospital believes that "the overdue rent occupied interest required by Cathay Pacific Company to be paid by Juxin Company is calculated according to the annual lease interest rate of 7%, and the liquidated damages are calculated according to the annual interest rate of 18%. In view of the nature of overdue rent occupied interest also belongs to liquidated damages, the annual interest rate of 25% of the total sum of the two has exceeded the stipulation of 24% of the maximum annual interest rate of the total sum of private financing expenses, therefore, in accordance with the provisions of the first paragraph of Article 29 of the (II) of Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Contract Law, the Court shall adjust the liquidated damages in accordance with the law, and adjust the interest on overdue rent occupation and liquidated damages to 24% of the annual interest rate. As a result, Juxin Company shall pay Cathay Pacific Company a total of 3875771.88 yuan for overdue occupancy interest and liquidated damages as of November 25, 2019. Subsequent overdue rent occupancy interest and liquidated damages shall be calculated from November 26, 2019 to the actual payment date based on 70454294.66 yuan (due unpaid rent 30668574.96 yuan + unexpired rent 39785718.7 yuan + nominal price 1 yuan)." The judgment of the court: 1. Gaoqing Juxin Infrastructure Investment Co., Ltd. shall pay Cathay Pacific Leasing Co., Ltd. all due and unpaid rent of 30668574.96 yuan, undue rent of 39785718.7 yuan and nominal price of 1 yuan within 10 days from the effective date of this judgment, totaling 70454294.66 yuan; 2. Gaoqing Juxin Infrastructure Investment Co., Ltd. shall pay Cathay Pacific Leasing Co., Ltd. a total of 3875771.88 yuan of overdue interest and liquidated damages calculated by Cathay Pacific Leasing Co., Ltd. to November 25, 2019 and subsequent overdue interest and liquidated damages within 10 days from the effective date of this judgment (based on 70454294.66 yuan, at an annual interest rate of 24%, from November 26, 2019 to the date of actual settlement); Case 2: Dispute over Financial Leasing Contracts between Guotai Leasing Co., Ltd. and Ruzhou Transportation Investment and Development Co., Ltd., Ruzhou Education Investment and Development Co., Ltd. (2020) Lu 01 Minchu No. 2210 The Court believes that the "Financial Lease Contract" stipulates that the interest on overdue rent shall be calculated based on the unpaid amount payable, based on the 50% increase in the five-year benchmark loan interest rate of the People's Bank of China during the same period when this contract is overdue and the actual number of days occupied until the date of full payment. The liquidated damages shall be calculated based on the amount of unpaid amount payable by the overdue days multiplied by five ten thousandths of the unpaid rent until the date until the date, as the standard for calculating interest and liquidated damages for overdue rent occupancy significantly exceeds the standard of 24% of the annual interest rate, the unpaid rent due as of June 17, 2020 is calculated as $35087475, and the liquidated damages and interest for overdue rent occupancy calculated at 24% of the annual interest rate is calculated as $3228948, the court ruled that the defendant Ruzhou Transportation Investment Development Co., Ltd. should pay rent 114818276.15 yuan, liquidated damages and interest on overdue rent to the plaintiff Guotai Leasing Co., Ltd. within 10 days from the effective date of this judgment (liquidated damages are based on 114818276.15 yuan, calculated at the standard of 5/10000 per day from June 18, 2020 to the actual payment date; The interest on overdue rent is based on 114818276.15 yuan, from June 18, 2020 to the actual payment date, calculated at a 50% increase in the quoted market rate for five-year loans published by the LIBOR, and the amount of the above two combined is limited to the standard rate of 24% per annum) The above two judgments adjusted the starting point of interest on overdue rent occupancy and liquidated damages to the lessee's overdue date, adjusting the standard annual interest rate of 24%. 2 After 2021 Case 1, Jinding Leasing Co., Ltd., Daqing Jiachang Jingneng Information Materials Co., Ltd. and other financial lease contract disputes civil first instance civil judgment (2021) Lu 01 Minchu 1444 After the signing of the contract, Jinding Leasing Company fulfilled its obligation to pay the financing funds in accordance with the contract, and Jiachang Jingneng Company failed to fulfill its obligation to pay the rent in full and on time in accordance with the contract, which constituted a breach of contract. Jinding Leasing Company requires Jiachang Jingneng Company to pay the outstanding rent of 38.46 million yuan and the total amount of interest and liquidated damages for overdue rent up to May 31, 2021 of 27222065.45 yuan, which is in line with the contract and legal provisions, and our hospital supports it. Subsequent late payment interest and liquidated damages shall be based on 38.56 million yuan and shall continue to be calculated and paid from June 1, 2021 to the date of actual payment at four times the quoted interest rate of the loan market published by the National Interbank Lending Center. Jinding Leasing Company, without providing evidence to confirm its actual losses, demanded that the interest on overdue payments and liquidated damages be calculated at an annual interest rate of 30 per cent, which was obviously too high, the court does not support ...... The court ruled that the defendant Daqing Jiachang Jingneng Information Materials Co., Ltd. should pay the plaintiff Jinding Leasing Co., Ltd. the rent of 38.46 million yuan within 10 days from the effective date of this judgment, and the overdue payment interest and liquidated damages temporarily calculated to May 31, 2021 totaling 27222065.45 yuan; the subsequent overdue payment interest and liquidated damages shall be based on 38.46 million yuan from June 1, 2021 to the actual payment date, continue to calculate and pay according to four times the quoted interest rate of the loan market published by the National Interbank Funding Center; Case 2, Minsheng Financial Leasing Co., Ltd., Li Laiping Financial Leasing Contract Dispute Civil First Instance Civil Judgment (2021) Lu 0104 Minchu 8539 During the trial, the plaintiff made the second claim clear as 70187.76 yuan, which was composed as of February 27, 2022, with a penalty interest of 26945.77 yuan, a penalty of 43041.99 yuan and a retained purchase price of 200 yuan. In this regard, the Court believes that the amount of penalty interest and liquidated damages, both of which fall within the scope of liability for breach of contract, should be considered together. Combined with the situation of this case, the two are combined and calculated, taking into account many factors such as the actual performance of the contract, the car payment, the hard loss of people's livelihood finance, etc., it is determined as appropriate to take the date of the defendant's last repayment (that is, December 24, 2021) as the starting point, based on the rent still owed of 215209.95 yuan, and calculated according to 4 times the one-year loan market quotation interest rate published by the National Interbank lending Center in November 2020. As for the retained purchase money of 200 yuan claimed by the plaintiff, the plaintiff did not provide evidence to prove his claim, so this court does not support it... "The court ruled that 1. Li Laiping should pay the rent of 215209.95 yuan owed by Minsheng Financial Leasing Co., Ltd. within ten days from the effective date of this judgment; 2. Li Laiping to pay the economic losses of Minsheng Financial Leasing Co., Ltd. within ten days from the effective date of this judgment (based on the rent still in arrears of 215209.95 yuan, from December 24, 2021 to the date of actual payment, according to 2020 Calculated at 4 times the quoted interest rate of the one-year loan market announced by the National Interbank Lending Center in November); Overdue rent occupancy after 2021</中华人民共和国合同法></中华人民共和国民法典>

2022-05-25

Viewpoint | A brief analysis of the crime of illegally absorbing public deposits

The case of the crime of illegally absorbing public deposits is currently one of the most "hot" crimes in the field of criminal crimes, coupled with the "Criminal Law Amendment (11)" and the "Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising" With continuous attention, the intention of cracking down and warning is obvious. This crime has various manifestations, from traditional private lending and cooperative investment to an innovative financial form integrated into the "Internet". Various models involving fund-raising may touch the legal red line of the crime of illegally absorbing public deposits. In judicial practice, it has been expanded to a "pocket crime" of illegal fund-raising crimes ". Combined with the practical experience of the crime of illegal absorption of public deposits, the author summarizes the common defense ideas for reference. 1. subjective argument Evaluation of (I) subjective intention The subjective aspect of the criminal suspect and defendant of the crime of illegally absorbing public deposits can only be constituted by direct intent. As long as the perpetrator has a profit-making purpose, it is not necessary to ask whether the benefit is actually obtained. According to the first paragraph of Article 4 of the opinions on handling criminal cases of illegal fund-raising in 2019, it can be seen that: "to determine whether the criminal suspect or defendant has the criminal intention of illegally absorbing public deposits, it shall be based on the evidence of the criminal suspect or defendant's employment, professional experience, professional background, training experience, administrative punishment or criminal investigation for similar acts, as well as the way of absorbing funds, publicity and promotion, contract materials, business processes, etc, combined with its confession, a comprehensive analysis and judgment." Although the above opinions have identified the key points of review that should be focused on, once combined with complex actual cases, the specific review will still become one of the focal points of controversy in practice. For defense lawyers, the assessment of subjective intent should be based on the performance of objective behavior, but also to avoid the error of purely objective attribution of loss results. The author believes that the following aspects should be judged: 1. Focus on examining the commonalities and differences of verbal evidence between the perpetrator and other suspects, witnesses and victims in the same case, and compare the contradictions to determine whether they have direct intent; 2. Conduct a comprehensive review of the perpetrator's past experience and background to determine his or her level of awareness of the act and infer whether the perpetrator knew or should have known; 3. Review the actor's job position and content to determine whether it can recognize the possibility of illegally absorbing public deposits; 4. Conduct a comprehensive analysis of the actor's post-event behavior and performance to confirm the subjective aspect of the behavior at the time from the side. Determination of (II) subjective purpose Because the amount of crimes involved in illegal fund-raising cases is particularly huge, in practice, there will be a qualitative dispute between the prosecution, defense and trial for the crime of fund-raising fraud and the crime of illegally absorbing public deposits, which is faced with many times in the cases handled by the author. The upper limit of the statutory sentence for the crime of fund-raising fraud is life imprisonment, while the upper limit of the statutory sentence for the crime of illegally absorbing public deposits is 15 years. In order to effectively protect the legitimate rights and interests of the defendant, the defender should accurately grasp the nature of the act-whether it has the purpose of illegal possession. Article 7 of the interpretation of the Supreme People's Court on Several Issues concerning the specific application of law in the trial of criminal cases of illegal fund-raising, which came into effect on March 1, 2022, is to stipulate the authenticity of project financing, the legitimacy of the use of funds, the certainty of the flow of funds, the legality of fund-raising methods, the attitude of return and the non-fraud of related acts. The author believes that the defender should focus on excluding the following situations: 1. Whether most of the funds involved in the case have not been used for production and operation activities, or whether they have been put into production and operation in name but have been withdrawn or transferred through various means; 2. The cost of using the funds is so high that there is no realistic possibility of paying all the principal and interest; 3. After receiving the funds, whether the actor is extremely irresponsible in making decisions on the use of the funds, resulting in a large funding gap; 4. The return of principal and interest is mainly done by borrowing new and repaying the old. The Debate of 2. Subject (I) Attaches Importance to Unit Crime The distinction between unit crime and individual crime (including natural person joint crime) is one of the important defense strategies in illegal fund-raising cases. For illegal fund-raising cases that may constitute unit crimes, the defender can establish the defense direction of unit crimes in a timely manner according to the needs, and according to the duration and number of illegal fund-raising carried out by the unit, the scale of funds, the flow of funds, the frequency, the investment of manpower and material resources, the proper operation of the unit, the impact and consequences of criminal activities and other factors, and realize the defense of light crime or innocence by legal means. Of course, the defender should pay attention to the fact that the new judicial interpretation has blurred the boundary between unit crime and individual crime, and the intention of this move should be specifically grasped. Distinction between (II) master and accomplice In the case of the crime of illegally absorbing public deposits, the status and role of each person in the case must be distinguished in order to reflect the adaptation of crime and punishment in sentencing. Generally speaking, the organization, planner, and leader of illegal fund-raising criminal activities, the main implementer and the main profit-takers, should be identified as the principal offender; for the secondary implementer who accepts the arrangement and instigation of others to carry out illegal fund-raising activities, or only provides The helper of the backstage support behavior, or the "fund-raising intermediary" who is driven by interests to help illegal fund-raising and collects commissions and other fees can be recognized as an accessory according to law. In practice, for positions such as financial personnel, business personnel, administrative personnel and technical personnel, it is necessary to make specific judgments in combination with the circumstances of specific cases to determine their criminal status. In particular, attention should be paid to personnel in financial and business departments. They should often contact the core business of non-smoking behavior, and the focus of punishment in this crime is also on the capital and business ends, with a higher risk of being identified as the principal offender. Thus, the modesty of criminal law limits the scope of criminal accountability to organizational planners and active participants, and whether the specific persons involved in the case need to fall within this scope and the identification of the principal and accessory has become one of the focuses of attention. 3. objective argument Identification of Non-suction Four Characteristics of (I) The four characteristics that constitute the crime of illegally absorbing public deposits are "illegality, openness, inducement, and non-specificity". In my opinion, we can focus on "illegality" and "non-specificity". Because this crime overlaps with private lending, the difference is mainly reflected in the above two points, and "illegality" is highly abstract. How to define it does not have obvious practicality in practice. Some "private lending" itself does not have clear legal provisions, which belongs to the scope of contract autonomy and does not require the legal permission of relevant departments. Therefore, it is impossible to distinguish the difference between illegal absorption of public deposits and private lending. With regard to "non-specificity", the crime of illegally absorbing public deposits requires an unspecified object, while legal private lending is an act of establishing a creditor's rights and debt relationship with a specific object, and the two are different. However, how to characterize the behavior of raising funds from a sufficient number of specific objects? Whether it constitutes the crime of illegally absorbing public deposits remains controversial. However, it should be noted that the 2019 Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Handling of Criminal Cases of Illegal Fund-raising stipulates: "In the process of absorbing funds from relatives and friends or internal personnel of the unit, knowing that relatives and friends or unit Internal personnel absorb funds from unspecified objects and indulge; for the purpose of absorbing funds, absorb social personnel as internal personnel of the unit, and absorb funds from it; publicize to the public, and at the same time absorb funds from unspecified objects, relatives and friends, or internal personnel of the unit", the above three situations will still be recognized as absorbing funds from the public. Determination of the amount of (II) crime The amount of the crime is one of the important bases for the conviction and sentencing of the perpetrator in the case of the crime of illegally absorbing public deposits. Due to the variety of business models, the large number of people involved, and the different uses of funds, the crime of illegally absorbing public deposits is complicated in practice. Therefore, the determination of the amount of crime by the public prosecutors and defense lawyers is often controversial. The author believes that the following aspects should be deducted and paid attention: 1. The amount of investment by family members or internal personnel of the unit shall be deducted. Funds invested in the name of the defendant's family members (wife, husband or minor children) should generally be deducted from the amount absorbed, as the aforementioned invested money is usually the common property of the family or the defendant invested in the name of family members. At the same time, if the defendant first absorbs funds from family members, relatives and friends, and internal personnel of the unit, and then absorbs funds from other unspecified objects, in view of the fact that the behavior of the actor in the previous stage of absorbing funds is still difficult to identify as social, the amount of absorption should generally be deducted. 2. The amount absorbed independently by the offline personnel shall be deducted. This situation is a specific distinction between the type of actor and the specific behavior, which requires a detailed analysis by the defender, such as the amount of illegal fund-raising carried out independently by the development of the offline personnel after the illegal fund-raising personnel leave the unit, should not be included in the amount of their absorption. 3. Determination of the amount of rolling investment The amount of illegal or disguised absorption of public deposits shall be calculated on the basis of the full amount of funds absorbed by the perpetrator. If the one-time investment funds are not withdrawn, and the principal and interest due are used to roll the investment, the amount of the crime shall be calculated according to the principal of the one-time investment. 4. On the determination of the amount of evidence Regarding the determination of the criminal amount of the crime of illegally absorbing public deposits, there are two main reference bases: one is the judicial accounting appraisal report; the other is the summary of the amount of the investor's report materials. There may be a gap between the amount of audit and the amount reported, and how to review and identify has become one of the focuses of debate. The first way-the summary of the amount of reported materials by investors, the most common problem is that there will be a large number of unreported persons, resulting in the statistical amount being far lower than the actual amount of crimes, or investors reporting cases one after another, resulting in procrastination in handling cases and long-term consumption of judicial resources; The second way-judicial accounting appraisal report, the biggest practical problem that may exist is that the legality of the appraisal report is questionable and cannot be used as a basis for the decision. In view of the disadvantages of the above two methods, lawyers should not only focus on reviewing the documentary evidence such as investor report records, verbal evidence and related contracts, bank account transaction records, fund receipt and payment vouchers, but also pay attention to the "three characteristics of evidence" in the judicial accounting appraisal report, and pay full attention to whether each evidence can form a complete chain of evidence to determine the amount of crime and eliminate reasonable doubts. The Argument of 4. Object The object of a crime is one of the essential elements of a crime and is a social relationship protected by criminal law and infringed by criminal acts. However, the object of crime is complex and abstract. Therefore, the object of the defense is the focus of criminal lawyers in the defense, but also the difficulty. It is generally believed that the criminal law provides for the crime of illegally absorbing public deposits to protect the national financial order. In the author's opinion, three issues need to be specifically clarified, namely, what is the financial order? What does the financial order specifically mean? Does the behavior involved in the case violate the financial order? If the behavior of the actor's borrowing is only controlled within a specific range, the circulation of funds does not infringe the credit monopoly of financial institutions, does not destroy the existing financial order, it is not the behavior of illegally absorbing public deposits denied by the criminal law, and the funds borrowed by the actor are not used for high-risk or high-yield behaviors such as stock investment and lending, but normal production and operation activities, it will not have serious consequences for the country's credit order. In this case, in order to strive for the point of defense, the defender should not only review the relevant evidence on file, but also pay attention to the investigation and collection of evidence on the source and whereabouts of the funds to prove the defense point of view.

2022-05-17