State-owned supervision... Do state-owned enterprises need to enter the market to transfer their share of property in a limited partnership?

Recently, we have been entrusted by the consultant unit to issue a legal opinion on the 20% property share of a limited partnership enterprise to be transferred. Among them, regarding the transaction method of the target share transfer, that is, whether the state-owned enterprise needs to enter the market to transfer its property share in the limited partnership enterprise, after inquiring about relevant laws and regulations, the website of SASAC and consulting with the State-owned Assets Supervision and Administration Commission of Shandong Provincial People's Government, it is preliminarily believed that the transfer of the share of the property of a limited partnership held by the state-owned advisory unit in that country does not need to be made public with the property rights trading institution. However, in practice, due to the lack of clear legal provisions, it is controversial whether the transfer of limited partnership property shares by state-owned enterprises is subject to the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (Order No. 32 of the Ministry of Finance of the State-owned Assets Supervision and Administration Commission of the State Council) and whether it is necessary to enter the market for transactions. I. Controversies and main points in practice [Viewpoint 1]: State-funded limited partnerships are not subject to Decree 32, and the transfer of shares of limited partnership property by state-owned enterprises does not need to enter the transaction. The main reasons for holding this view are as follows: The legislative basis of Decree No. 1.32 does not include the Partnership Law, so state-funded limited partnerships are not regulated and bound by it. 2. The State-owned Assets Supervision and Administration Commission of the State Council has made it clear in its response to a question on its official website on May 27, 2019 that "the scope of application of Decree 32 is for corporate enterprises established under the the People's Republic of China Company Law. The supervision and management of the transfer of shares of limited partnerships by state-owned enterprises shall be stipulated separately.", As a result, partnerships established under the the People's Republic of China Partnership Act are not subject to Decree 32, and the transfer of shares of limited partnership property by state-owned enterprises does not require a market entry transaction. [Viewpoint 2]: The transfer of the share of limited partnership property by state-owned enterprises shall be subject to Decree No. 32 and shall be carried out publicly in property rights trading institutions. The main reasons for holding this view are as follows: 1. From the definition of the concept of state-owned assets of enterprises and state-owned enterprises and enterprises, the provisions of the State-owned assets Law of Enterprises and Decree No. 32 on "state-funded enterprises", "state-owned and state-controlled enterprises, enterprises funded by state-owned enterprises" and "various forms of capital contribution to enterprises" do not exclude "partnership enterprises, the share of limited partnership property held by a state-owned enterprise belongs to the state-owned assets of the enterprise, so the transfer of the share of limited partnership property by a state-owned enterprise shall be made public in the property rights trading institution. 2. The reply to the question made by the State-owned Assets Supervision and Administration Commission of the State Council on its official website on May 27, 2019, that is, "The scope of application of Decree No. 32 is for corporate enterprises established in accordance with the the People's Republic of China Company Law. The supervision and management of the transfer of shares of limited partnerships by state-owned enterprises is separately stipulated" is not a formal document, which has no legal effect, and the reply also indicates that the opinion is for reference only. 3. On February 7, 2020, the State-owned Assets Supervision and Administration Commission of the State Council issued the Interim Provisions on the Registration of State-owned Rights and Interests of Limited Partnership Enterprises, Article 1 of which states that its purpose is "to strengthen the registration and management of state-owned rights and interests of limited partnership enterprises and to reflect the status of state-owned rights and interests of limited partnership enterprises in a timely, accurate and comprehensive manner, in accordance with the" State-owned Assets Law of the People's Republic of China Enterprises "," the People's Republic of China Partnership Enterprise Law "," Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises "(State Council Order No. 378) and other relevant laws and regulations, these regulations are formulated". It can be seen from the promulgation of these regulations that the supervision The department has begun to strengthen the supervision of the state-owned rights and interests of limited partnerships. At present, although there are no laws and regulations to make clear provisions on the transfer of state-owned shares of partnership enterprises, the introduction of this provision to a certain extent releases a signal that the disposal of state-owned rights and interests of limited partnership enterprises may be clearly regulated in the future. Two relevant laws and regulations 1. Law on State-owned Assets of the People's Republic of China Enterprises (hereinafter referred to as the Law on State-owned Assets of Enterprises) Article 2: "The state-owned assets of enterprises (hereinafter referred to as state-owned assets) referred to in this Law refer to the rights and interests formed by the state's various forms of capital contributions to enterprises." Article 5 The term "state-funded enterprises" as mentioned in this Law refers to wholly state-owned enterprises and wholly state-owned companies, as well as state-owned capital holding companies and state-owned capital shareholding companies. Article 30 Major matters such as merger, division, restructuring and listing of state-funded enterprises, increase or decrease of registered capital, issuance of bonds, major investment, provision of large amount of guarantee for others, transfer of major property, large amount of donation, distribution of profits, dissolution and application for bankruptcy shall abide by laws, administrative regulations and the provisions of the articles of association of the enterprise, and shall not damage the rights and interests of investors and creditors. Article 51 The term "transfer of state-owned assets" as mentioned in this Law refers to the act of transferring the rights and interests formed by the state's capital contribution to the enterprise to other units or individuals in accordance with the law, except for the free transfer of state-owned assets in accordance with the provisions of the state. Article 54: "The transfer of state-owned assets shall follow the principles of compensation for equal value and openness, fairness and impartiality. Except for those that can be transferred by direct agreement in accordance with the provisions of the State, the transfer of state-owned assets shall be carried out openly in property rights trading venues established in accordance with the law". 2. Measures for the Supervision and Administration of the Transactions of State-owned Assets of Enterprises (hereinafter referred to as "Decree No. 32") Article 1 In order to regulate the trading of state-owned assets of enterprises, strengthen the supervision and management of state-owned assets transactions of enterprises, and prevent the loss of state-owned assets, these measures are formulated in accordance with the Law on State-owned Assets of the People's Republic of China Enterprises, the the People's Republic of China Company Law, the Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises and other relevant laws and regulations. Article 3 The transaction of state-owned assets of enterprises referred to in these Measures includes: (1) the transfer of rights and interests formed by institutions performing the duties of investors, state-owned and state-owned holding enterprises, and state-owned actual control enterprises (hereinafter referred to as the transfer of enterprise property rights); the increase of capital by (II) state-owned and state-owned holding enterprises, and state-owned actual control enterprises (hereinafter referred to as enterprise capital increase), except for the government's investment in state-funded enterprises by increasing capital, (III) the transfer of major assets of state-owned and state-controlled enterprises and state-controlled enterprises (hereinafter referred to as the transfer of enterprise assets). Article 4 The term "state-owned and state-owned holding enterprises and state-owned actual control enterprises" as mentioned in these Measures includes: wholly state-owned enterprises (companies) funded by (I) government departments, institutions and institutions, as well as state-owned wholly-owned enterprises in which the above-mentioned units and enterprises directly or indirectly hold 100% of the total shares; (II) the units and enterprises listed in the (I) paragraph of this article are individually or jointly funded, with a total ownership of more than 50%, and one of them is the enterprise with the largest shareholder; (III) the enterprises listed in the (I) and (II) paragraphs of this article, the subsidiary enterprises at all levels with an equity ratio of more than 50%; (IV) government departments, institutions, institutions, single state-owned and state-owned holding enterprises directly or indirectly hold less than 50% of the shares, but are the largest shareholder, and through the shareholders' agreement, the articles of association, the resolution of the board of directors or other agreement arrangements can actually control the enterprise. Article 13 The transfer of property rights shall, in principle, be carried out openly through the property rights market. The transferor may, according to the actual situation of the enterprise and the work schedule, adopt a combination of information pre-disclosure and formal disclosure, disclose the property rights transfer information in stages through the website of the property rights trading institution, and openly solicit the transferee. The time for formal disclosure of information shall not be less than 20 working days. three summary The author believes that although the SASAC has made a targeted reply to the question of whether the transfer of the share of limited partnership property by state-owned enterprises is applicable to Decree 32, the content of the reply is not comprehensive, the expression is not clear, and it is not an official document, which has no legal effect. According to the provisions of the State-owned Assets Law of Enterprises, the share of limited partnership property held by state-owned enterprises belongs to the state-owned assets of enterprises. In principle, the transfer of the share of limited partnership property by a state-owned enterprise shall be carried out publicly in the property rights trading place. At present, there is no clear legal regulation on whether the transfer of limited partnership property shares by state-owned enterprises needs to be traded, and there are disputes in practice. However, from the perspective of relevant legislative purposes, the principles of state-owned assets trading and the prudence of state-owned assets supervision, the transfer of limited partnership property shares by state-owned enterprises can be carried out openly in property rights trading institutions with reference to the application of Decree No. 32, and it is best to get a written reply to avoid the transaction of state-owned assets being identified as a violation of regulations and causing the loss of state-owned assets.

2022-05-08

Zhongcheng Qingtai | HR Legal Corner: Corporate employment compliance during the new coronary pneumonia epidemic

Recently, the new crown virus Omicjon variant strain caused a national outbreak. The outbreak of the epidemic is bound to be accompanied by the corresponding isolation, closure, control measures, the necessary prevention and control so that we have to make changes and adjustments to life, work, but also to the normal employment management of enterprises to bring challenges. Small and medium-sized enterprises, catering, tourism, training and other industries are the main groups severely affected by the epidemic, how to control labor costs, legal compliance, and prevent legal risks in the severe situation of the epidemic, involving many specific issues. This paper provides some guidance for enterprises only from the aspects of wage payment, annual leave arrangement, contract management and limitation suspension. 1. Wage Payment As stated in the previous article, the Human Resources and Social Security Department [2020] No. 5 "Notice on Properly Handling Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected by Novel Coronavirus", [2020] No. 8 "Opinions on Stabilizing Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected by Novel Coronavirus to Support Enterprises to Resume Work and Production" and February 22, 2022 "Answers to Questions on Labor Employment, Labor Relations, Wages, Wages, Social Security, Social Security, Social Security, Social Security, Social Security, Social Security, Social Security, Social Security and the issue of wages is regulated. That is, during the delayed resumption of work or non-return to work affected by the epidemic, the enterprise may consult with the employees in accordance with the relevant provisions of the State on the payment of wages during the shutdown and shutdown, and pay wages in accordance with the standards stipulated in the labor contract within a wage payment cycle, and pay living expenses in accordance with the relevant provisions if more than one wage payment cycle. Whether the remuneration for work includes bonuses and subsidies depends on the specific circumstances. If the monthly payment is fixed, it shall not fluctuate due to the attendance or work performance of the worker, and shall be paid as a fixed wage composition. If the employee is reimbursed according to the actual bill or some welfare treatment decided by the enterprise, it may not be paid. If there are special agreements or provisions in the labor contract or the rules and regulations of the enterprise, the agreements or provisions shall be followed as long as they do not violate the provisions of the law. So the decline in business efficiency, can reduce the wage standard? The "Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations during the Prevention and Control of the New Coronavirus Infected Pneumonia Epidemic" (Human Resources and Social Security Department Mingdian [2020] No. 5) stipulates: "If an enterprise has difficulties in production and operation due to the impact of the epidemic, it can adopt methods such as salary adjustment, job rotation, and shortening working hours through consultation with employees, and try not to lay off or reduce layoffs." At the same time, you can refer to the provisions of a city: "In the special period of epidemic prevention and control, to ensure the orderly resumption of work and production of employers to resume the market, as far as possible to reduce the pressure on the production and operation of employers, stabilize the jobs of workers and ensure employment, is the primary task at present. For the employer in accordance with legal procedures through democratic consultation with the workers' congress, trade unions, staff representatives on the transfer of wages, delay in the payment of wages, rotation of jobs, work stoppage and other matters to reach an agreement, and the opinion is fair and reasonable, only applicable during the epidemic period, can be used as a basis for adjudication." In other words, you can negotiate a salary reduction and delay payment, but you need to pay attention to the legality of the procedure. It should be noted that, according to the announcement issued by the Ministry of Finance and the General Administration of Taxation and the provisions of the Labor Contract Law, during the prevention and control of the epidemic, the unit to provide or issue to employees masks, medical supplies, killing supplies, etc., can not be included in wages, salary income, nor because the efficiency of the enterprise is affected by the payment of in-kind instead of wages. Special provisions for workers are that temporary work subsidies and bonuses obtained by medical personnel and epidemic prevention workers are exempt from personal income tax. 2. leave arrangements According to the Ministry of Human Resources and Social Security and the Supreme People's Court issued the "Notice on the Joint Release of the First Batch of Typical Cases of Labor and Personnel Disputes", "Measures for the Implementation of Paid Annual Leave for Enterprise Employees", and the Ministry of Human Resources and Social Security issued [2020] No. 8 "Opinions on Stabilizing Labor Relations to Support Enterprises to Resuming Work and Resumption of Production during the Prevention and Control of Novel Coronavirus Infection Pneumonia Epidemic, negotiate with employees to give priority to the use of paid annual leave, enterprise-owned welfare leave and other types of leave. Enterprises can give priority to the use of paid annual leave, enterprise-owned welfare leave and other types of leave to minimize the loss of business operations and workers' income from the new coronary pneumonia epidemic. When arranging for workers to give priority to the use of paid annual leave during the period of delaying the resumption of work and production, the enterprise should try its best to consider the actual situation of the workers and perform the negotiation procedures in accordance with the law, but there is no requirement that "consensus must be reached through consultation", regardless of whether the workers agree or not, the enterprise can make overall arrangements for paid annual leave after performing the negotiation procedures, but pay paid annual leave wages in accordance with the law. When employees in the closed and controlled areas are unable to work normally, employees can be allowed to take unpaid personal leave upon mutual agreement or upon application by employees. Workers should accurately understand the laws and policies, and actively accept the employer arrangements. Therefore, during the prevention and control of the new coronavirus epidemic, in order to actively respond to the national call, strengthen the prevention and control of the pneumonia epidemic of the new coronavirus infection, effectively reduce the gathering of personnel, block the spread of the epidemic, and better protect the life safety and health of employees, employees can be arranged to take annual leave or unpaid personal leave according to the specific production and work conditions of the unit and comprehensively consider the wishes of the employees. 3. Contract Management 1. Signing of contract For new employees who have already issued an offer but are affected by the epidemic, the enterprise can withdraw the change of the entry time and resend it before the offer is delivered. If the offer has been delivered to the candidate and the candidate has confirmed it, the enterprise cannot change it at will. However, if the epidemic control enterprise is in a shutdown, shutdown state and other objective reasons can not handle the entry in a timely manner, constitute a legal force majeure, the enterprise can ask the candidate to postpone the entry, it is recommended that the enterprise and the candidate friendly consultation, to avoid disputes. If the written labor contract cannot be signed or renewed in time due to the impact of the epidemic, it is recommended to negotiate with the laborer and conclude the written labor contract in electronic form, but it should meet the requirements of the electronic signature law and other legal provisions, or sign it by video, save relevant videos or evidence, and sign it in time after the factors affecting the epidemic are eliminated. 2. Rescission of contract Many enterprises are facing operational difficulties due to the impact of the epidemic, but want to terminate the labor contract with employees in accordance with the provisions of Article 40, Item (III) of the Labor Contract Law, but it should be noted that the requirements of this clause are more stringent and need to meet the conditions before it can be applied. For example, the enterprise is required to have major changes in the objective conditions on which the labor contract is concluded due to the epidemic, such as force majeure caused by the epidemic or shutdown of the enterprise due to policy influence, etc., and there is a causal relationship between the changes and the inability to continue to perform the labor contract, resulting in the inability to perform all or major terms of the labor contract, or the continued performance will cause great damage to the interests of the enterprise, seriously unfair, etc. In terms of procedures, the company and its employees are required to conduct honest and friendly negotiations on changing the content of the labor contract. The company has made efforts to continue the performance of the labor contract, but the two parties have not yet reached an agreement. The company has fulfilled the notification procedure one month in advance or paid one month. The salary is used as a payment, and the economic compensation is paid in accordance with the law, and the labor union is notified. So, if the employee is diagnosed or infected, can the labor contract be terminated? If an employee is diagnosed or infected with new coronary pneumonia, the unit may not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of the Labor Contract Law, but it is not absolutely impossible to dismiss the employee. If the employee's labor contract expires during the isolation period, the enterprise cannot terminate the contract on the grounds of the expiration of the contract, but waits for the labor contract to automatically extend to the expiration of the employee's medical treatment period, the expiration of the medical observation period, the expiration of the isolation period or the end of the emergency measures taken by the government. So can companies make layoffs? In accordance with the provisions of the Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected with Novel Coronavirus, pneumonia patients, suspected patients, and close contacts infected with novel coronavirus are treated in isolation. During the period or medical observation, as well as enterprise employees who cannot provide normal labor due to the government's implementation of isolation measures or other emergency measures, economic layoffs cannot be used. Relevant laws and regulations have strict requirements on the entity and procedure of economic layoffs. Specific personnel shall not be dismissed, specific personnel shall be recruited first, legal procedures such as listening to the opinions of trade unions or employees and reporting to the labor administrative department shall be performed, and there is no clear standard for the extent to which enterprises can be identified as serious difficulties in production and operation. Therefore, under the current circumstances, even if enterprises need to lay off employees due to epidemic conditions, careful consideration should be given to the manner of release and professional lawyers should be hired to develop a layoff plan. Suspension of 4. aging The Notice of the General Office of the Ministry of Human Resources and Social Security on the Proper Handling of Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected by the New Coronavirus stipulates: "If the parties are unable to apply for labor and personnel dispute arbitration during the statutory arbitration limitation period due to the impact of the epidemic, the arbitration limitation period shall be suspended. The period of limitation for arbitration shall continue to be calculated from the date when the cause for suspension of the limitation period is eliminated. If it is difficult for a labor and personnel dispute arbitration institution to hear a case within the statutory time limit due to the impact of the epidemic, the hearing period may be extended accordingly." The (I) of Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Proper Trial of Civil Cases Involving the New Coronary Pneumonia Epidemic in accordance with the Law stipulates: ...... (VI) suspend the statute of limitations in accordance with the law. During the last six months of the statute of limitations period, if the right holder cannot exercise the right of claim due to the epidemic or epidemic prevention and control measures, the people's court shall support the suspension of the statute of limitations in accordance with the first paragraph of Article 194 of the General Principles of Civil Law. The period of the proceedings (VII) be postponed in accordance with the law. If the time limit for litigation prescribed by law or designated by the people's court is delayed due to an epidemic or epidemic prevention and control measures, and the parties apply for an extension of the time limit in accordance with Article 83 of the Civil Procedure Law, the people's court shall consider whether to grant it in accordance with the epidemic situation and the evidence provided by the parties, and protect the litigation rights of the parties in accordance with the law. If the parties concerned are diagnosed with new coronary pneumonia, suspected new coronary pneumonia, asymptomatic infected persons and related close contacts, and the time limit for litigation expires during the period of isolation in accordance with the law, the people's court shall grant permission to apply for an extension of the time limit in accordance with the provisions of this article. It is recommended that enterprises should pay attention to the local government's policy of control and closure during the outbreak and retain relevant documents so that they can be used to prove the existence of a suspension of arbitration/statute of limitations. In summary, due to the epidemic caused by the employer's production and operation difficulties, the employer can guide the workers through consultation, the use of priority arrangements for annual leave, adjustment of wages, deferred wages, rotation, shortening of working hours, suspension of production and other ways of flexible handling, stable employment relations, the necessary layoffs or termination, pay attention to procedural compliance. Enterprise HR should pay attention to the retention of relevant control and closure policy documents during the outbreak to prove that there is a time limit for suspension.

2022-05-07

Building Materials Perspective | Quality Objection Period for Defects in Custom Glass

Introduction As an important part of the building materials industry, glass has played an important role in real estate, automobiles, solar appliances and other fields. The glass industry related to the upstream and downstream industry chain is long, involving many subjects, complex trading patterns, and prone to disputes. Through the statistics of glass enterprises related cases in recent years, we observe that the legal disputes faced by glass enterprises mainly focus on contract and quasi-contract disputes, labor and personnel disputes, tort liability disputes and so on. Among them, under contract disputes, sales contract disputes, loan contract disputes, contract disputes, construction contract disputes, lease contract disputes are common types of disputes. In terms of the geographical distribution of cases, the number of legal disputes related to glass enterprises in Shandong Province ranks second in the country. On the one hand, the number of glass enterprises in Shandong is in the forefront of the country. On the other hand, it also reflects that some glass enterprises need to pay attention to the prevention, control and response of legal risks. Sales is an important part of glass enterprises, in the process of glass sales "custom glass" is often signed in the form of contract. A contract of contract is a contract in which the contractor completes the work in accordance with the requirements of the contractor, delivers the results of the work, and is paid by the contractor. In a contract of work, the party who completes the work as agreed is called the contractor and the counterparty is called the fixer. The most common risk of disputes in glass customization contracts is the quality of customized glass. The common situation is that the fixer refuses to pay the amount payable by the glass company or requests to terminate the contract on the grounds that the product has quality problems, while the glass company, as the contractor, thinks that the fixer has already met the payment conditions and should pay the price according to the contract. The above differences are easy to cause litigation. This paper will combine the relevant laws and regulations and cases to analyze the quality objection period and the conditions for the termination of the contract that the contractor unilaterally believes that the work results delivered by the contractor have quality defects. Referee's point of view Case 1:(2021) Yu 03 Min Zhong No. 533 [Case Introduction] China X Da Decoration Engineering Group Co., Ltd. (hereinafter referred to as "Decoration Company") is the ordering party and North X Glass Technology Co., Ltd. (hereinafter referred to as "Glass Company") is the contractor to sign two "Processing Glass Orders Contract", which stipulates that the glass company orders the glass according to the requirements of the decoration company. The contract stipulates the provisional total price and settlement method. In addition, article 7 of the contract stipulates that if the ordering party considers that the variety, configuration, specification, quantity and quality of the glass are inconsistent with the contract, it shall submit a written objection to the contractor within 15 days after receiving the glass, otherwise, the glass shall be deemed to conform to the contract; if the ordering party has used the glass, it shall also be deemed to be qualified. Article 8 stipulates that when installing and using glass, the ordering party shall first inspect the variety, configuration, specification processing requirements and surface quality of the glass, otherwise, the contractor shall not compensate for the losses caused. The two sides also agreed on quality and acceptance standards and other terms. After the contract was signed, the glass company fulfilled its contractual delivery obligations and issued a special VAT invoice to the decoration company. The decoration company paid a total of 1.04 million yuan to the glass company, but it still owes 269000 yuan. Due to the decoration company's delay in fulfilling its payment obligations, the glass company sued the court for the decoration company to pay the glass, and the decoration company argued in the lawsuit that the glass had quality problems and refused to pay. [The court held that] the contract signed by both parties is legal and valid, and both parties shall perform their respective obligations in accordance with the contract. In this case, the glass company has delivered the ordered glass to the decoration company in accordance with the contract. The decoration company argued that the reason for its refusal to pay the remaining amount was that the glass delivered by the glass company was delayed and had quality problems. First of all, the two parties clearly agreed in the contract that the ordering party believes that the variety, configuration, specification, quantity and quality of the glass do not conform to the contract, it shall submit a written objection to the contractor within 15 days after receiving the glass, otherwise, the glass shall be deemed to conform to the contract. If the ordering party has already used glass, the glass is also deemed to be qualified, but the decoration company has not provided sufficient evidence to prove that it has sent written materials to the glass company within the objection period agreed in the contract. Secondly, it has been more than four years since the glass company delivered the glass. After the glass company sued, the decoration company argued and counterclaimed that the delivery of the goods was delayed and there were quality problems, which was obviously inconsistent with market trading habits. Even from the time when the decoration company last raised questions about the quality of the glass involved in the case, its claim obviously exceeded the statute of limitations, so its application for appraisal of the quality of the glass involved in the case was not allowed. Combined with the fact that the decoration company has fulfilled its obligation to pay nearly 80% of the total amount of the two fixed contracts, it will not accept the above-mentioned reasons for refusing to pay the remaining amount. The second instance of this case upheld the original verdict. Case 2:(2021) E 09 Min Zhong No. 2963 [Case Introduction] X Special FRP Company (hereinafter referred to as "FRP Company") and X Xiang Chemical Company (hereinafter referred to as "Chemical Company") have signed one FRP processing contract and one technical agreement each. Among them, the glass fiber reinforced plastic processing is stipulated in the contract: 6. quality assurance: the contractor guarantees that the service life of the equipment is 20 years, and that the equipment provided to the employer has not been used. under the conditions of correct installation, normal use and maintenance, the quality warranty period of the main equipment is 3 years. if there is any quality problem in the main equipment within 3 years, the contractor shall repair or replace the corresponding parts free of charge, the maintenance or replacement of the equipment corresponding extension of the quality assurance period, if the maintenance still does not meet the requirements of the demand side, the contractor shall pay the contractor according to the contract value of the purchased equipment... Since then, the two sides have signed a processing contract and supplementary agreement, installation contract, etc. After FRP completed the installation of FRP storage tanks, the chemical company refused to pay the remaining amount and demanded a refund on the grounds of leakage. After that, FRP sued the court for compensation for processing. [The court held that] the existing quality problems of the glass fiber reinforced plastic storage tank involved in the case could not lead to the termination of part of the contract between the two parties. Once a contract is established, it shall have legal effect, and the parties shall perform their obligations in accordance with the agreement and shall not modify or terminate the contract without authorization. In this case, the liability for breach of contract in the Processing Contract stipulates that if the equipment provided by the contractor does not meet the quality requirements (specifications, quality, performance) stipulated in the contract, the contractor shall repair according to the requirements of the contractor, and return the goods after the repair still fails to meet the requirements....... From the above agreement, if the equipment provided by the glass steel company does not meet the quality requirements agreed in the contract, it should first be repaired according to the requirements of the chemical company, and then returned if the repair still fails to meet the requirements. Regarding the quality problems of the storage tanks involved in the case, from the content of the FRP company's reply on April 1, 2019, the problems raised by the chemical company have been rectified. By the time Glass Steel filed its lawsuit in October 2019, there was no evidence that Chemical had raised a quality objection to Glass Steel. In the litigation of this case, it was identified that some storage tanks had quality problems. According to the contract, maintenance should be carried out first, and the goods should be returned after the maintenance still failed to meet the requirements. Now the chemical company has not submitted evidence to prove the fact that the quality problems of the storage tanks cannot be solved through maintenance. Moreover, in the second instance, the chemical company stated that 10 storage tanks involved in the case are still in use, so it is not enough to prevent the contract purpose, the reasons for the chemical company's request to terminate part of the contract cannot be established, and its litigation request has no factual basis and legal basis, and this court will not support it. If the tank involved in the case is repaired and there are still serious quality problems, the chemical company may sue separately to claim its rights. Lawyer Law Review From the above cases, we can infer that the common view of the court is that in the contract for the quality of the disagreement period is agreed to be subject to the contractual agreement, in addition to the actual time of use of the fixer and whether it has been repaired and other circumstances comprehensive judgment. However, if there is no clear agreement in the contract on how the quality objection period should be determined, there is still some controversy. One way of thinking is that the current Civil Code and judicial interpretation of the contract for the contractor to raise quality objections is not clearly defined, so it can be compared to the general statute of limitations period as the period of objection. According to the relevant provisions of Article 780 of the Civil Code on the delivery and acceptance of the contract, and with reference to the provisions of Article 188 of the Civil Code on the limitation of action period, the contractor has the right to raise objections to the quality defects of the delivered products within 3 years after the completion of the contract, and the contractor is also obliged to bear the liability for defect guarantee for the quality of the fixed crops within 3 years. Another way of thinking is to refer the contract of contract to the provisions of the quality objection period of the contract of sale. In accordance with Article 780 of the Civil Code, the fixer has a legal obligation to accept the results of the work. That is to say, when accepting the results of the work, if the obvious quality defects found by the naked eye or existing technical means can be inspected by certain national or industry standards, they should raise objections in time. For hidden defects, that is, those that cannot or are not easy to find during acceptance and can only be found in subsequent use, objections should also be raised in time. If the objection is not raised in time, the quality may be presumed to be qualified and the fixer shall pay the price as agreed in the contract. For the limit of the longest quality objection period of the contract, reference may be made to Article 621 of the Civil Code, "If the parties agree on an inspection period, the buyer shall notify the seller of the fact that the quantity or quality of the subject matter does not conform to the agreement within the inspection period. If the buyer fails to give notice, the quantity or quality of the subject matter shall be deemed to be in conformity with the agreement. If the parties have not agreed on an inspection period, the buyer shall notify the seller within a reasonable period of time after discovering or should have discovered that the quantity or quality of the subject matter does not conform to the agreement. If the buyer fails to notify the seller within a reasonable period of time or within two years from the date of receipt of the subject matter, the quantity or quality of the subject matter shall be deemed to be in accordance with the agreement; however, if there is a quality assurance period for the subject matter, the quality assurance period shall apply, and the two-year provisions shall not apply. If the seller knows or should know that the subject matter provided does not conform to the agreement, the buyer is not subject to the notice time limit stipulated in the preceding two paragraphs." By reference to the maximum period specified under the contract of sale, it may also be presumed that the period of quality objection to the contract of contract is set at 2 years. That is, within 2 years, regardless of whether the fixed crop quality defects are found by the fixer, as long as no objection is raised to the contractor, the approved quality is deemed to be qualified. If the quality objection period is exceeded, the author shall not have the right to refuse payment or request the termination of the contract on the basis of quality problems. In short, legal disputes over the period of objection to glass quality defects should comprehensively consider the nature of the transaction, the purpose of the transaction, the way of the transaction, the way of the transaction, the type, quantity, nature, installation and use of the subject matter, the nature of the defect, the reasonable duty of care, the inspection method and the degree of difficulty, the specific environment, their own skills and other reasonable factors, based on the principle of good faith to judge. In addition, it is necessary to request the glass enterprise as the contractor to make clear and specific the agreement on the quality clause in the processing contract business. If the quality is not clear or only through oral agreement, once both parties have disputes, they will hold their own opinions on the quality standard. If the quality is subject to the sample, attention should be paid to sealing the sample and describing the sample in writing to avoid quality disputes due to the loss or natural damage of the sample. This epidemic is in danger of organic, enterprises now practice good internal work waiting for the flowers to bloom. Many building materials and other processing and manufacturing enterprises, including glass companies, in addition to strictly controlling product quality as always, should also firmly establish the awareness of risk prevention and control and the awareness of the chain of evidence, and give full play to the important role of the law in the whole process of enterprise management and transactions, so as to effectively avoid risks and escort the rapid development of enterprises after the epidemic.

2022-05-07

"Guarding the Safety of Overhead" | Interpretation of the Legal Provisions of Article 1254 of the Civil Code on High-altitude Parabolic Infringement

1. Introduction With the advancement of urbanization and the increasing number of high-rise buildings, tragedies caused by high-altitude parabolic incidents have occurred frequently in recent years. In order to protect the safety of people's heads, the Civil Code, which came into effect on January 1, 2020, clearly stipulates the liability rules for high-altitude throwing objects. In October 2021, the author personally experienced a high-altitude throwing incident, and the author's family almost suffered irreparable injuries. In the process of dealing with the incident, the author also thought more about the legal provisions of Article 1254 of the Civil Code on high-altitude throwing infringement. 2. legal provisions Article 1254 of the the People's Republic of China Civil Code [Liability for Damage Caused by Throwing Objects from High Altitude and Falling Objects] prohibits throwing objects from buildings. If an article is thrown from a building or an article falling from a building causes damage to others, the infringer shall bear the tort liability in accordance with the law; if it is difficult to determine the specific infringer after investigation, unless it can be proved that he is not the infringer, the user of the building who may cause the harm shall give compensation. The user of the building who may have caused the damage shall have the right to recover the compensation from the infringer. Building managers such as property service enterprises shall take necessary safety measures to prevent the occurrence of the circumstances specified in the preceding paragraph; if they fail to take necessary safety measures, they shall bear tort liability for failure to perform their safety guarantee obligations in accordance with the law. In the event of the occurrence of the circumstances specified in the first paragraph of this article, the public security and other organs shall promptly investigate and identify the responsible persons in accordance with the law. Interpretation of 3. legal provisions Article 1254 of the Civil Code is divided into three paragraphs on the liability for damage caused by high-altitude throwing (falling) objects, and clarifies the liability of the subject of high-altitude parabolic tort liability. This is not only conducive to determining the actual infringer, urging the manager to fulfill the obligation of safety and security, but also conducive to fully mobilizing all social forces to participate in the comprehensive management of high-altitude parabolic infringement. The provisions of the Civil Code on the liability for damage caused by objects thrown (falling) from high altitude have the following characteristics: 1, with prohibitive provisions to clarify the illegality of high-altitude parabolic behavior. Article 1254 of the Civil Code has a clear attitude towards the infringement of high-altitude throwing objects. By setting prohibitions, it clarifies the public's code of conduct for civil activities and prohibits people from throwing objects from buildings. At the same time, this article publicly defines the behavior that was only considered uncivilized in the minds of the general public as an illegal act, and establishes a bottom line and norms for those who have weak public safety awareness and relatively lack of legal awareness, through the use of mandatory legal authority to prevent and reduce the occurrence of high-altitude parabolic behavior. 2. It is a general rule that the actual infringer shall bear the tort liability according to law. The high-altitude parabolic actor is usually intentional subjectively, and there are usually cases where the owner, manager and user of the object fail to fulfill their management and maintenance obligations, so the tortfeasor is subjectively liable. This provision clarifies for the first time the general rule that the actual infringer should bear tort liability in accordance with the law. Compared with the previous direct provision that when it is difficult to determine the infringer, the compensation should be given by the user of the building who may cause harm, the content clearly defines "who is responsible", prevents the situation that the residents of the whole building need to "sit together" as long as the incident of throwing objects from high altitude occurs, and establishes the correct value orientation. 3, may cause damage to the building user to give compensation as an exception, and give the building user may cause damage to the right to recover. The user of the building who may cause harm is no longer the responsibility of "sitting together", but only a kind of compensation in the nature of advance payment, which not only protects the legitimate rights and interests of the victims, but also pays attention to safeguarding the legitimate rights and interests of the building users. Through the inversion of the burden of proof, as far as possible to narrow the scope of the actual tort responsible person, guide and encourage to actively find the direct infringer. If the possible perpetrator fulfills the liability of compensation, once the actual infringer is found, he can recover from the actual infringer. This provision balances the interests of the obligor of compensation as much as possible by giving the right of recourse to the user of the building who may cause harm. 4, stressed the property and building managers of the prevention and management of security responsibilities. According to the law and the contract signed with the owner, the property has the corresponding security obligation in the property service area. If the obligation is not fulfilled, it is only the liability for breach of contract. In this article, if the property and building managers fail to take safety measures to prevent "throwing objects from high altitude", they will be investigated for tort liability for failing to perform their security obligations in accordance with the law. On the one hand, it can urge the property to strengthen the daily supervision and take effective measures to prevent the occurrence of high-altitude parabolic infringement. On the other hand, it can also promote the property to actively participate in the search for actors after the occurrence of high-altitude parabolic infringement, so as to improve the possibility of finding the actual infringer. Compared with ordinary owners, properties play a very important role in preventing and detecting high-altitude throwing incidents, such as installing upward monitoring on the outer walls of the community, and publicizing the hazards of high-altitude throwing by setting up warning signs, billboards, leaflets, etc. After high-altitude throwing incidents occur, monitoring or investigation is used to help increase the possibility of identifying the actual infringer, which can reduce the occurrence of high-altitude throwing incidents. 5, strengthen the investigation of the actual infringer, clear the public security and other organs of the investigation responsibility. The victims of high-altitude parabolic civil cases often find it difficult to find the actual infringer because they do not have sufficient investigation capabilities or because the investigation cost is too high. Therefore, in previous cases, the victims have chosen to directly sue the building users who may cause harm. As a result, a large number of actual infringers evade their responsibilities, and finally they can only be compensated by the building users who may cause harm. Now, the investigation responsibilities of public security and other organs are clarified in the form stipulated in the Civil Code, and the public security organs are urged to actively perform their duties, file a case for investigation in a timely manner after the occurrence of a high-altitude throwing case, and through the use of professional investigation techniques and methods, these are conducive to the investigation of the case, protect the legitimate rights and interests of the victims, and reduce or even avoid the application of "compensation for building users who may harm, it also provides the necessary preconditions for the exercise of the right of subsequent recovery. 4. epilogue Although there are "laws to follow" for high-altitude parabolic cases after the promulgation and implementation of the Civil Code, in the actual handling of high-altitude parabolic cases, there are still difficulties in obtaining evidence and safeguarding rights. The author has also experienced the situation of property prevarication and inaction, the public security organs do not pay attention to it, and in the end, we can only wait for a truth when serious consequences such as serious injury or death occur. Therefore, the author believes that in order to truly realize "guarding the safety above the head", it is not only necessary for every citizen to continuously improve their own public moral level and concept of the rule of law, but also for the property, public security and other departments to really pay attention to such incidents and perform their duties in accordance with the law.

2022-05-06

Point of view | Is the unauthorized disposition of the joint property of the husband and wife valid? Is it invalid? Or is the effect "to be determined"?

对于夫妻一方擅自处分夫妻共同财产的法律后果如何？要回答这个问题，就需要厘清夫妻共同财产的共有形式，还需要区别处分夫妻共同财产的目的，也不能忽视处分夫妻共同财产的方式。笔者列举以下3个案例，加以对照分析。     案例1：未经妻子同意，丈夫赠与他人钱款、贵重物品，因违反公平原则而属无效   甲男与乙女系夫妻关系，于2010年登记结婚。丙女系甲男前妻，二人生育一子丁男，丁男由丙女抚养。在甲男与乙女结婚后，甲男得知前妻丙女生活拮据，丁男马上大学毕业，面临就业结婚。甲男出于对儿子丁男生活的照顾，2020年6月1日通过自己银行账户向丙女转款50万元，用于丙女为儿子丁男购买商品房交纳的首付款，商品房登记在丙女、丁男名下。2021年5月，甲男因病去世，在处理甲男遗物时，乙女发现甲男存折中记录的汇款行为，欲诉至法院起诉丙女和丁男，要求共同返还该50万元。乙女的诉请能否得到法院支持呢？   律师意见   第一、夫妻双方未约定夫妻共同财产系按份共有，应属于夫妻共同共有，除具备法定分割情形外，夫妻任何一方不得主张各自对共同财产享有一半的处分权。   根据《婚姻法》、《最高级人民法院关于适用<中华人民共和国民法典>Several provisions of the effect of time, the joint property of husband and wife is based on the provisions of the law, due to the existence of the relationship between husband and wife. In cases where the spouses do not choose another property system, the spouses share the common property in common, rather than in shares. According to the general principle of common ownership, during the existence of the marriage relationship, the common property of the husband and wife shall be regarded as an indivisible whole, and the husband and wife shall have joint ownership of all the common property without any share, and the parties cannot divide their personal share of the common property. The equal right of husband and wife to dispose of the common property does not mean that each husband and wife has a half share of the common property. Only at the end of the common relationship can the common property be divided and their respective shares determined. Second, both spouses have the right to dispose of common property on an equal footing, but care should be taken to distinguish between "daily needs" situations. During the existence of the marriage relationship, both husband and wife have equal rights to the common property. If the common property is disposed of due to the needs of daily life, either party has the right to make a decision. If an important decision is not made on the common property of the husband and wife due to the needs of daily life, the husband and wife Both parties shall negotiate on an equal footing and reach a consensus. To sum up: in this case, male student a remitted 500000 yuan from his bank account to female c without authorization. the money was used to buy a house for male ding. it was obviously not due to the daily needs of male and female a who gave the common property to others free of charge, which seriously damaged the property rights and interests of female B and violated the principle of fairness in the civil law. such donation should be invalid. Reference case:(2022) Lu 03 Min Zhong No. 665 Case 2: Without the consent of the wife, the husband's gift of money and valuables to others is invalid because it violates the principle of public order and good customs. Ms. He and Mr. Huang registered their marriage in 2019 and gave birth to a daughter after marriage. Ms. He took care of her family and daughter at home after marriage. Mr. Huang is working hard to start a business for his family and runs a trading company. The good thing is not long. In September 2021, Ms. He learned that Mr. Huang had maintained an improper relationship with the female employees of his company for a long time, and the female employees also gave birth to a daughter for Mr. Huang. Mr. Huang concealed Ms. He and remitted 300000 yuan to female employees on April 1, 2021. For this reason, Ms. He wants to sue the female employee and Mr. Huang, demanding confirmation that the gift is invalid and claiming that the female employee should return the grant of 300000 yuan. Can Ms. He's claim be supported by the court? Advice from counsel First, the husband and wife have not agreed that the joint property of the husband and wife shall be shared by the husband and wife, except in the case of legal division, neither husband and wife shall claim half of the right to dispose of the joint property. Both spouses have equal rights to dispose of common property, but care should be taken to distinguish between "daily necessities. The reason is the same as before and will not be repeated. Second, civil subjects engaged in civil activities shall not violate public order and good customs. According to the "Civil Code", families should establish a good family style and promote family virtues. Husband and wife should be faithful to each other, respect each other, and care for each other. Civil subjects engaged in civil activities shall not violate the law, public order and good customs. To sum up: in this case, during the existence of the husband and wife relationship between Mr. Huang and Ms. he, and then maintain an improper relationship with female employees for a long time and give birth to an illegitimate daughter, Mr. he's behavior is contrary to public order, good customs and social morality. Mr. Huang's donation behavior based on the relationship between men and women that is not protected by law has seriously damaged Ms. He's legitimate rights and interests, which is fundamentally contrary to social morality and has no legal effect. Reference case:(2021) Lu 0105 Minchu No. 10102. Case 3: Without the consent of the wife, the husband transfers the property, vehicle and other valuables to another person, the validity of the transfer is "to be determined", and different situations should be distinguished, such as whether the third party obtained it in good faith and whether it colluded in bad faith. Ms. Li and Mr. Ning registered their marriage in 2006. After marriage, Ms. Li ran the company. After hard work, she achieved success in her career and had certain family savings. Two properties and two luxury private cars were purchased, and the couple registered a property and a private car under their names. Later, due to emotional discord, Mr. Ning filed for divorce from Ms. Li and claimed that the husband and wife's property should be divided by 50%. In response, Ms. Li believed that after marriage, she worked hard to accumulate the husband and wife's property and did not agree to split them in half. Mr. Ning then privately disposed of the real estate and vehicles under his name, transferred the real estate under his name to his sister, and sold the private car under his name to a third person, Mr. Yuan, through a second-hand car dealer. Afterwards, Ms. Li learned that Mr. Ning privately disposed of the husband and wife's property and sued to the court respectively, demanding that Mr. Ning's sister return the property and Mr. Yuan return the vehicle. Can Ms.'s claim be upheld by the court? Advice from counsel First, the husband and wife have not agreed that the joint property of the husband and wife shall be shared by the husband and wife, except in the case of legal division, neither husband and wife shall claim half of the right to dispose of the joint property. Both spouses have equal rights to dispose of common property, but care should be taken to distinguish between "daily necessities. The reason is the same as before and will not be repeated. Second, when one of the spouses is involved in the unauthorized transfer of the joint property of the husband and wife to a third person other than the husband and wife, the transfer shall be determined on the premise of whether the property transferee constitutes a good faith acquisition. Article 28 of the (I) for the Interpretation of Marriage and Family of the Civil Code stipulates that if one party sells a house jointly owned by the husband and wife without the consent of the other party, the third party buys in good faith, pays a reasonable consideration and has registered the real estate, and the other party claims to recover the house, the people's court will not support it. At the same time, the article also stipulates that if one of the spouses disposes of a jointly owned house without authorization and causes losses to the other party, and the other party requests compensation for losses during divorce, the people's court shall support it. Whether it is Article 106 of my country's previous "Property Law" and its judicial interpretation, or Article 311 of the "Civil Code" that is now in force, the system of "bona fide acquisition" is clearly set up. Good faith acquisition should be noted that: (a) the transferee must be in good faith. In practice, the standard of good faith is not uniform because of movable or immovable property. The Supreme Court's view is (1) for movable property, the standard of determination in practice, opinions, but the system of good faith transfer lies in the legislative purpose of taking into account the interests of all people and the security of the transaction, the transferee should bear a certain degree of duty of care as to whether the transferor has the right to transfer. Whether the assignee has fulfilled its duty of care should be judged on the basis of the specific circumstances and circumstances of the transaction. For example, the place of movable property transaction is in a public trading place, which should generally be considered as the buyer's duty of care. The assignee is grossly negligent and does not know that the transferor has no right to transfer is considered to be non-bona fide. (2) In the case of immovable property, the reliance of a third party on the registration of the immovable property should be used as a criterion for determining whether it constitutes a bona fide acquisition of the immovable property. (II) bona fide allocation of the burden of proof. To which side the burden of proof is assigned will likely affect the outcome of the referee. According to article 216 of the Civil Code, which expressly recognizes the presumptive effect of the register, in the case of immovable property, the burden of proof should, in principle, be borne by the spouse who denies that the third person is a bona fide person, and if it cannot prove that the acquisition was made in bad faith, the third person should be presumed to be in good faith. (III) the time node of the third person's goodwill state. From daily life, we can see that real estate transfer registration takes a certain amount of time and cannot be completed in an instant. On the issue of determining the time node of the third party's good faith, the Supreme People's Court held that it was more reasonable to set the time for determining whether the third party was in good faith to be recorded in the register. For the registration of the transfer of special movable property such as vehicles, it is clear that the transaction can be completed at the same time, so there is no need to emphasize the time node of the bona fide state of the third party. Third, when one of the spouses is involved in the unauthorized transfer of the joint property of the husband and wife to a third person other than the husband and wife, the transfer shall be transferred at a reasonable consideration to determine whether the transfer is valid. Reasonable price means that the price of the subject matter is basically equivalent to the value of the object, excluding unreasonable low price or free transfer. Care should be taken to grasp: (a) the premise of good faith acquisition is a paid transaction. Article 18 of the (I) for the Interpretation of Property Rights of the Civil Code of (II) provides for a "reasonable price", which should be determined in accordance with the nature of the subject matter of the transfer, the quantity and the method of payment, taking into account factors such as the market price of the place of transaction at the time of the transfer and the customs of the transaction. Therefore, the Supreme Court held that whether the consideration for the sale of the house is reasonable or not is presumed to be reasonable as long as both parties have completed the transfer registration, but one of the spouses can prove that the consideration is quite different from the price difference of similar houses in the market or that the judge is sufficient to judge the consideration according to the schedule life experience. Under special circumstances, you can also apply to the court for housing valuation to judge whether it is unreasonable. (III) reasonable consideration should have been actually paid. China's good faith acquisition system is both the function of the improper profit system, the Supreme Court view that the so-called consideration refers to the actual payment of the consideration. (IV) the seller and the buyer have registered the ownership of the real estate and the property right has been transferred. Fourth, when one of the spouses transfers the joint property of the husband and wife to a third person other than the husband and wife without authorization, the validity of the transfer shall be determined by the consent of one of the spouses. The Supreme Court held that consent within the legal framework is an expression of intent, which is reflected in daily life, when the other spouse agrees to the sale of the property and vehicles jointly owned by the husband and wife, which can be expressed in writing, orally, by telephone or electronic data. In this regard, the assignee of the property and the vehicle can prove it in the litigation. In the case where one of the spouses has not made a clear statement, in accordance with the provisions of Article 140 of the Civil Code, in view of the closeness of the relationship between husband and wife, if the other spouse has not clearly expressed his opinion on the sale of real estate and vehicles, but his behavior has indicated that he has agreed to the sale, he may directly be deemed to have implicitly agreed to the sale. Fifth, when one of the spouses transfers the joint property of the husband and wife to a third person other than the husband and wife without authorization, whether there is malicious collusion with the third party to determine whether the transfer is valid. According to the provisions of Article 154 of the Civil Code, the civil legal act of malicious collusion between the perpetrator and the counterpart to damage the legitimate rights and interests of others is invalid. If one of the spouses maliciously colludes with a third party to transfer the property and vehicle for the purpose of concealing, transferring, etc., which seriously damages the interests of the couple's common property, the other spouse has the right to claim that the transfer is invalid. To sum up: in this case, if Ms. Li claims that the third party should return the house and vehicle sold by Mr. Ning without authorization, she should prove that she did not agree with Mr. Ning to sell the house and vehicle, and her behavior does not show that she agreed to sell the house and vehicle. She should submit the house and vehicle transfer contract to prove whether the consideration is reasonable, and submit the real estate ownership and vehicle registration transfer procedures to prove whether the real right change has occurred, if necessary, apply for an assessment of the value of the house and vehicle to prove that the consideration is unreasonable, and apply to the court to obtain whether the third party has paid the consideration. Thus, the court can comprehensively determine the facts and decide whether the sale of houses and vehicles is invalid and whether the third party returns the houses and vehicles. Reference case:(2022) Yu 08 Min Zhong No. 866. (2021) Ning 0105 Minchu No. 5510</中华人民共和国民法典>

2022-05-04

Zhongcheng Qingtai | HR Legal Corner: How do companies pay wages during epidemic prevention and control?

Affected by the new crown epidemic, many enterprises due to the epidemic caused by the production and operation and employee job status fluctuations, some enterprises may stop production. At the same time, in order to control the risk of the spread of the epidemic, most residential areas implement temporary control. After closed management, it is not allowed to leave the residential area and employees cannot work in the workplace. How should companies pay their salaries during this period? Let's first look at the relevant regulations of the Ministry of Human Resources and Social Security in 2020. On January 24, 2020, article 2 of the notice on properly handling labor relations during the prevention and control of pneumonia epidemic caused by novel coronavirus infection [2020] No. 5 stipulates: "if enterprises have difficulties in production and operation due to the impact of the epidemic, they can stabilize their jobs by adjusting salaries, rotating jobs and shortening working hours through consultation with employees, and try not to lay off or reduce layoffs as much as possible. Eligible enterprises can enjoy stable post subsidies according to regulations. If an enterprise stops production within a wage payment cycle, the enterprise shall pay the wages of the employees according to the standards stipulated in the labor contract. If more than one wage payment cycle is exceeded, if the employee provides normal labor, the wage paid by the enterprise to the employee shall not be lower than the local minimum wage standard. If the staff and workers fail to provide normal labor, the enterprise shall pay living expenses, and the standard of living expenses shall be implemented in accordance with the measures prescribed by the provinces, autonomous regions and municipalities directly under the Central Government." On February 7, 2020, the Ministry of Human and Social Affairs issued [2020] No. 8, "Opinions on Stabilizing Labor Relations during the Prevention and Control of the New Coronavirus Infection Pneumonia Epidemic to Support Enterprises to Resuming Work and Resuming Production", Article 2, paragraph (I): "Encourage consultation to resolve the employment problem before the resumption of work. If the employees cannot arrive on schedule or the enterprise cannot start production due to the epidemic situation, the enterprise shall be guided to actively communicate with the employees. If conditions permit, the enterprise may arrange the employees to work at home to complete the work tasks through flexible working methods such as telephone and network. For enterprises that do not have telecommuting conditions, they shall negotiate with the employees to give priority to the use of paid annual leave, enterprise-set welfare leave and other types of leave. The trade unions of enterprises should be guided to actively mobilize workers and enterprises in the same boat, and on the basis of taking into account the legitimate rights and interests of both enterprises and workers, to help enterprises minimize the losses caused by the epidemic." On February 22, 2022, the Ministry of Human Resources and Social Security issued the "Questions and Answers on Labor Employment, Labor Relations, Wages and Social Security Contributions in Resuming Work and Production", in which Question 13: "How should wages and benefits be paid during the period of delayed resumption of work or not returning to work be paid?" answer: "During the delayed return to work or non-return to work affected by the epidemic, for employees who cannot provide normal labor or other employees who cannot provide normal labor after using all kinds of vacations, the enterprise can consult with the employees according to the relevant provisions of the state on wage payment during shutdown and shutdown. If the wage payment cycle is within one wage payment cycle, the wage will be paid according to the standards stipulated in the labor contract, and if the wage payment cycle exceeds one, the living expenses will be paid according to the relevant provisions." In accordance with the above-mentioned provisions and the relevant provisions of the Labor Contract Law, and in conjunction with judicial precedents, enterprises are given the following guidance on the payment of wages during the prevention and control of the epidemic. If a 1. enterprise has operational difficulties due to the impact of the epidemic and stops production within a wage payment cycle, it shall pay the wages of its employees in accordance with the standards stipulated in the labor contract. How to understand "within a salary payment cycle"? For example, if an enterprise starts to stop operating on April 28, it will be a salary payment cycle until May 27, instead of calculating according to the salary payment time of the enterprise. During this period, the enterprise shall still pay the wages of the employees in accordance with the standards stipulated in the labor contract. After May 28 for more than one pay cycle. 2. an enterprise has operational difficulties due to the impact of the epidemic and exceeds one wage payment cycle, if the employee provides labor, the wage paid by the enterprise to the employee shall not be lower than the local minimum wage; if the labor is not provided, the enterprise shall pay living expenses. When an enterprise exceeds a wage payment cycle due to business difficulties, the enterprise shall distinguish whether the employee has provided labor. If the employees provide labor, the enterprise may pay wages according to the new standard agreed by both parties, but it shall not be lower than the local minimum wage standard. Regarding whether the "local minimum wage standard" includes "five insurances and one fund", the regulations vary from region to region. Provinces and cities that do not include "social insurance and house fund" include Beijing, Shanghai, Anhui, etc.; provinces and cities that include "social insurance and house fund" include Shandong, Tianjin, Wuhan, etc.; and those that include social security but do not include provident funds, such as Jiangsu, Hunan, etc., the specific standards should be implemented in accordance with the regulations of the location of the enterprise. If the employee does not provide labor, the enterprise shall pay living expenses. With regard to the standard of living expenses, at present, the standard of living expenses in Beijing, Shandong, Sichuan, Chongqing and other places is not less than 70% of the local minimum wage; the standard of living expenses in Jiangsu, Zhejiang, Henan and other places is not less than 80% of the local minimum wage, and so on, which should be implemented in accordance with the measures prescribed by the province, autonomous region and municipality directly under the Central Government where the enterprise is located. 3. the office or the employee's residence is closed due to the epidemic, and the employee cannot enter the unit to work, how will the salary be paid? 1. If the employee cannot enter the unit to work due to the closure of the office or the employee's residence, if the company has the conditions for telecommuting, the company can arrange for the employee to telecommut through the telephone, the Internet, etc. During this period, the company should pay wages normally. 2. For enterprises that do not have the conditions for telecommuting, they can negotiate with their employees to give priority to the use of paid annual leave, adjusted leave, enterprise-set welfare leave and other types of leave. 3. For employees who still cannot provide normal labor or other employees who cannot provide normal labor after using all kinds of vacations, the enterprise can refer to the relevant provisions of the state on wage payment during the shutdown and shutdown period to negotiate with the employees. Wages are paid according to the standards stipulated in the labor contract, and living expenses are paid according to relevant regulations if the wage payment cycle exceeds one wage payment cycle. 4. For employees with telecommuting conditions, but the actual workload is significantly reduced compared with before, the enterprise can adjust the post and salary after consultation with the employees. The "consultation with employees" mentioned above many times is the democratic procedure, and the legal basis is Article 4 of the Labor Contract Law: "When the employer formulates, revises or decides on rules and regulations or important matters directly related to the immediate interests of employees, such as labor remuneration, working hours, rest and vacation, etc., it shall be discussed by the workers' congress or all employees, put forward proposals and opinions, and negotiate with the trade union or employee representatives on an equal footing; the employing unit shall publicize the rules and regulations and decisions on major matters directly related to the vital interests of the workers, or inform the workers." According to the above provisions, if an enterprise intends to make changes to matters involving the vital interests of employees, the changes shall be discussed and approved by the employee representative assembly or all employees. The form of the meeting can be online meeting, WeChat and other methods. The enterprise should truthfully explain the current situation of the enterprise's production and operation to the employees, and inform the employees of the rest and vacation plan, the job adjustment and salary adjustment plan or the decision to stop work and production, which can be implemented after the employees' discussion and approval. It should be noted that more than 2/3 employee representatives must participate in the convening of the employee representative assembly, and the plan must be approved by more than half of all employee representatives (not participating employee representatives) before it can be implemented. After the meeting, the enterprise shall also publicize or inform the employees through e-mail, OA system, wechat, etc., so as to be deemed to have fulfilled the notification procedure. At the same time, enterprises should pay attention to the retention of participants, meeting content, voting procedures and after the meeting to inform the staff or to the staff of the evidence.

2022-05-01

Civil and Commercial Perspective... One of the spouses is required to pay compensation in an incidental civil lawsuit for a crime, and the spouse is required to retain more property, and the application for the division of the joint property of the husband and wife in the marriage can be supported.

Brief description of case Zhang Qingshan and Li Jing got married in 2010 and gave birth to a man and a woman together after marriage. At about 19:00 on April 27, 2021, Zhang Qingshan drank and drove a two-wheeled motorcycle without a license plate. The victims Jiang Moumou (female, 63 years old) and Chen Moumou (male, 42 years old) who were walking in the same direction on a certain road were injured by two mother and son. Jiang Moumou died after rescue. The public security organs determined that Zhang Qingshan bear full responsibility for the accident. The procuratorate believes that Zhang Qingshan's traffic accident caused by driving a vehicle in violation of traffic laws and regulations, resulting in one death and one injury, should be investigated for criminal responsibility for the crime of causing traffic accidents. The court was asked to sentence Zhang Qingshan to two years and six months in prison in accordance with the provisions of Article 133 and the third paragraph of Article 67 of the the People's Republic of China Criminal Law. The plaintiffs of the incidental civil action, Chen Mouwen and Chen Moumou, filed an incidental civil action with the court, requesting Zhang Qingshan to compensate Jiang Moumou for death compensation, funeral expenses, medical expenses and other economic losses totaling 970387.58 yuan. Chen Moumou filed an incidental civil lawsuit to the court, petitioning Zhang Qingshan to compensate for medical expenses, food subsidies, nursing expenses, lost work expenses, and transportation expenses, totaling 12193.75 yuan. The court held that Zhang Qingshan constituted a traffic accident crime and should be punished in accordance with the law and sentenced Zhang Qingshan to 2 years in prison. Zhang Qingshan was also sentenced to compensate the plaintiffs of the incidental civil action Chen Mouwen and Chen Moumou for medical expenses, death compensation, and funeral expenses, totaling 970387.58 yuan; Zhang Qingshan was sentenced to compensate the plaintiff of the incidental civil action Chen Moumou for medical expenses, food subsidies, Nursing expenses, lost work expenses, transportation expenses, a total of 12193.75 yuan. For this reason, Li Jing, Zhang Qingshan's spouse, wanted to keep more property and applied to the court for the division of the couple's common property. Can the consultation be supported? Lawyer's opinion First of all, according to the provisions of the the People's Republic of China Civil Code, the request for the division of the joint property of husband and wife should be a legal fact of divorce, or there are major reasons. Secondly, the material reason cannot be extended. The major reason is: one party has hidden, transferred, sold, destroyed, squandered the joint property of the husband and wife, or forged the joint debt of the husband and wife, etc., which seriously damages the interests of the joint property of the husband and wife, or when the person with the legal maintenance obligation suffers from a major illness and needs medical treatment, If he does not agree to pay the relevant medical expenses, he may propose to divide the joint property of the husband and wife within marriage. In other circumstances, the joint property of the husband and wife shall not be divided. Third, because in this case Li Jing is due to the spouse Zhang Qingshan crime need to pay compensation in the incidental civil action, Li Jing in order to retain more property, the application for the division of the joint property of the husband and wife, the application is not a major reason for the division of the joint property of the husband and wife within the marriage. Finally, when the people's court executes the judgment of incidental civil action, it will refer to the Supreme People's Court's "Several Provisions on the Partial Execution of Criminal Judgments Involving Property" to leave property for the family members of the person subject to execution that meets their basic living needs. Judicial Viewpoint of the Supreme People's Court If there is no agreed property system between husband and wife, the system of joint income after marriage is implemented, the most typical form of which is the common ownership of husband and wife. The request for division of the joint property of the husband and wife shall be "the loss of the common basis or there is a significant reason". For the husband and wife, the loss of the common basis should be the legal fact that divorce has occurred, and the reason for dividing the common property of the husband and wife without divorce is not valid. From the technical point of view of "legislation", after listing the above two "major reasons", the judicial interpretation does not have a general clause or adopt the word "etc", so as to give the applicable person flexibility according to the specific circumstances of the case. However, legislators mainly consider that the common property of husband and wife is the main economic basis for maintaining the family life of the marriage parties. Easily shaking this foundation will have a negative impact on the marriage and family life of the parties and the relationship between husband and wife. Therefore, in the case of no divorce, the division of the joint property of husband and wife through litigation is a very special case, and the scope of application shall not be expanded without authorization. When one of the spouses commits an intentional crime and needs to pay a huge amount of compensation in a criminal incidental civil action, the people's court shall not support the application for the division of the joint property of the husband and wife for the purpose of keeping more property for themselves, including their minor children. When executing a judgment in an incidental civil action, the people's court will not take the personal property of other family members of the person subject to execution as the subject of execution; if the joint property of husband and wife is executed, it will also leave property to the family members of the person subject to execution that meets their basic living needs. Legal provisions 1. Article 203 of the Civil Code stipulates that if the co-owners agree not to divide the shared real or movable property in order to maintain the common relationship, they shall follow the agreement, but if the co-owners have major reasons to need to divide, they may request division. If there is no agreement or the agreement is unclear, the co-owners may request division at any time, and the co-owners may request division when the basis of sharing is lost or there are major reasons for division. If the division causes damage to other co-owners, compensation shall be paid. 2. Article 1062 of China's Civil Code stipulates that the following property acquired by husband and wife during the marriage relationship shall be the joint property of husband and wife and shall be jointly owned by husband and wife: (I) wages, bonuses and remuneration for labor services; Income from (II) production, operation and investment; Proceeds from the (III) of intellectual property rights; Property inherited or donated by the (IV), except as provided in Item 3 of Article 1063 of this Law; (V) other property which shall be owned jointly. Husband and wife have equal rights to dispose of common property. 3. Article 1066 of the Civil Code stipulates that during the existence of the marriage relationship, under any of the following circumstances, one of the spouses may request the people's court to divide the common property: One of the (I) parties has concealed, transferred, sold off, destroyed, squandered the joint property of the husband and wife, or forged the joint debts of the husband and wife, which seriously damages the interests of the joint property of the husband and wife; (II) a person with a legal maintenance obligation suffers from a major illness and needs medical treatment, the other party does not agree to pay the relevant medical expenses. 4. Article 9 of the Supreme People's Court's "Several Provisions on the Partial Execution of Criminal Judgments Involving Property" stipulates that if a sentence of confiscation of property is imposed, the property legally owned by the person subject to execution shall be executed when the criminal judgment takes effect. In the execution of the penalty of confiscation of property or fine, the living expenses of the person subject to execution and his dependent family members shall be retained with reference to the minimum living expenses of the local residents of the previous year announced by the government of the place where the dependants live.

2022-04-30

Viewpoint... Practical analysis of the determination of the subject of the exercise of shareholders' right to know.

1. Introduction According to the the People's Republic of China Company Law and the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law, the qualified subject to exercise the shareholders' right to know is the shareholders of the company. However, in judicial practice, it is often controversial whether the plaintiff has the status of a shareholder who enjoys the right to know. This paper will combine the current law, the provisions of judicial interpretation and the judicial cases of disputes over shareholders' right to know to analyze the determination of the subject of the exercise of shareholders' right to know. 2. Main Legal Provisions the People's Republic of China Companies Act (I) (as amended in 2018) Article 33 Shareholders shall have the right to consult and copy the articles of association, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports. Shareholders may request access to the accounting books of the company. If a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose and may damage the legitimate interests of the company, it may refuse to provide access, and shall reply to the shareholders in writing within 15 days from the date of the written request of the shareholders and explain the reasons. If the company refuses to provide inspection, the shareholder may request the people's court to require the company to provide inspection. Article 97 Shareholders shall have the right to consult the articles of association, the register of shareholders, the stubs of corporate bonds, the minutes of the general meeting of shareholders, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports, and to make suggestions or inquiries about the operation of the company. (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law of the People's Republic of (II) (as amended in 2020) Article 7 Where a shareholder, in accordance with the provisions of Articles 33 and 97 of the Company Law or the Articles of Association of the Company, sues for the inspection or copying of specific documents and materials of the Company, the people's court shall accept them in accordance with the law. If the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualification of a shareholder of the company at the time of the lawsuit, the people's court shall reject the lawsuit, but the plaintiff has preliminary evidence to prove that its legitimate rights and interests have been damaged during the shareholding period, and requests to consult or copy the company's specific documents and materials during the shareholding period in accordance with the law. Sorting out 3. referee rules The general principle of the determination of the subject of the exercise of the right to know of (I) shareholders. The general principle of the determination of the subject of the exercise of shareholders' right to know is that they are qualified as shareholders of the company. The court will often determine whether the plaintiff has the qualification of a shareholder based on the external registration information of the company, the articles of association, the register of shareholders, the certificate of capital contribution and other documents that can reflect the identity of the shareholder. Therefore, shareholders should submit shareholder qualification documents when filing a shareholder's right to know lawsuit. [Case 1] Dispute over Shareholders' Right to Know between Applicant Yangzhou Xicheng Real Estate Development Co., Ltd. and Respondent Rongwei International Development Co., Ltd. (Case No.:(2019) Supreme Law Minshen No. 5859, Trial Court: Supreme People's Court) The court held that the industrial and commercial registration information showed that Rongwei Company held the equity of Xicheng Company. Although Xicheng Company advocates that there is a "Supplementary Agreement" that can prove that Roewe Company has transferred its equity, it has not gone through the corresponding industrial and commercial change registration, nor has it gone through the procedures for foreign investment approval. Rongwei company in the case of the first instance cross-examination of the "supplementary agreement" is not recognized. Combined with the foregoing analysis, Xicheng did not provide sufficient evidence to overturn the contents of the industrial and commercial registration data. According to the second paragraph of Article 32 of the the People's Republic of China Company Law, the original trial court ruled that Roewe Company, as a shareholder of Xicheng Company recorded in the register of shareholders, has the right to exercise the shareholders' right to know to Xicheng Company. [Case 2] Retrial Dispute between Applicant Lanzhou Huamei Trading Co., Ltd. and Respondent Zhou Wanyin's Shareholders' Right to Know (Case No.:(2019) Gan Minshen No. 82, Trial Court: Gansu Higher People's Court) The court held that the certificate of capital contribution is in nature a certificate of real rights, a certificate of proof that the shareholders hold shares or capital contributions. In this case, on July 15, 2014, the "Certificate of Shareholder's Capital Contribution" sealed by Huamei Trading Company and signed by the legal representative Jiao Huaizhou stated: "The company's shareholder Zhou Wanyin paid the company on January 15, 2013. The capital contribution is 400,000 yuan (the above invested capital is my own capital, and the capital can be used to bear the civil liability of the enterprise during its use). Such shareholder shall, from the date of issuance of this capital contribution certificate, enjoy the rights of shareholders as stipulated in the Articles of Association of the Company." On January 5, 2015, the industrial and commercial change registration was made, so it was not improper for Zhou Wanyin to enjoy the shareholders' right to know according to the original judgment. Huamei Trading Company's claim that Zhou Wanyin's transfer of shares did not comply with the provisions of the law and the Articles of Association of the Company and Zhou Wanyin's fraudulent registration of industrial and commercial changes cannot be countered against Zhou Wanyin's "Certificate of Shareholder Capital Contribution" and industrial and commercial registration. (II) whether the withdrawing shareholder/transferring shareholder can exercise the shareholder's right to know Prior to the implementation of the (IV) of the Provisions of the Supreme People's Court on Certain Issues Concerning the Application of the the People's Republic of China Company Law, most courts would rule to dismiss the action of the withdrawing/transferring shareholder on the grounds that the withdrawing/transferring shareholder was not qualified as a shareholder. Article 7 of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law adds the limited right to know of shareholders who have withdrawn shares/transferred shares, that is, "if the company has evidence to prove that the plaintiff specified in the preceding paragraph is not qualified as a shareholder of the company at the time of filing a lawsuit, the people's court shall reject the lawsuit, but the plaintiff has preliminary evidence to prove that his legitimate rights and interests have been damaged during the shareholding period, except for requesting legal access to or copying of company-specific documents during the period of its shareholding". In other words, in order to exercise the shareholders' right to know, the withdrawing shareholders/transferring shareholders need to have preliminary evidence that their legitimate rights and interests have been damaged during the holding period. In judicial practice, most courts have held that the "legitimate rights and interests" here do not refer to arbitrary shareholders' rights, but mainly to property rights and interests that affect the distribution of profits or the distribution of surplus property, and that if only non-property rights and interests are harmed, it may still be impossible to exercise the right to know. [Case 1] Dispute between Appellant Shanghai Zhongshan Car Rental Company and Appellee Xue Hong Shareholders' Right to Know (Case No.:(2019) Hu 02 Min Zhong No. 1660, Trial Court: Shanghai No.2 Intermediate People's Court) The court held that the question of whether the original shareholders of the joint-stock cooperative enterprise have a limited right to know. The articles of association of Zhongshan Automobile Company do not stipulate the content of shareholders' right to know. Considering the commercial organizational nature of the shareholder cooperative enterprise, which has a certain degree of similarity with the limited liability company, and Zhongshan Automobile Company also agreed to apply the Company Law and its judicial interpretation in the appeal, the provisions of the Company Law and the relevant judicial interpretation can be referred to in this case. The second paragraph of Article 7 of the "Interpretation IV of the Company Law" stipulates: "If the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualifications of a company shareholder at the time of the lawsuit, the people's court shall reject the lawsuit, but the plaintiff has preliminary evidence to prove that during the shareholding period Its legitimate rights and interests have been damaged, except for requesting to consult or copy the company's specific documents during the shareholding period in accordance with the law." According to this article, although Xue Hong has lost the shareholder qualification of Zhongshan Automobile Company, because Zhongshan Automobile Company has never distributed profits during Xue Hong's shareholding period and has not yet settled the refund of Xue Hong's withdrawal amount, it meets the condition that "the plaintiff has preliminary evidence to prove that its legitimate rights and interests were damaged during the shareholding period". Therefore, the court believes that Xue Hong, as the original shareholder of Zhongshan Automobile Company, enjoys limited shareholders' right to know. [Case 2] Dispute over Shareholders' Right to Know between Applicant Shandong Rongsheng Investment Co., Ltd. and Respondent Qingdao Shenhua Real Estate Co., Ltd. (Case No.:(2019) Lu Minshen No. 3159, Trial Court: Shandong Higher People's Court) The court held that: Article 7, paragraph 2, of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates that if the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualifications of a company shareholder at the time of the lawsuit, the people's court The lawsuit shall be rejected, but the plaintiff has preliminary evidence to prove that his legal rights and interests were damaged during the shareholding period, except for requesting to consult or copy the company's specific documents during the shareholding period. In accordance with the above provisions, Rongsheng Company shall provide preliminary evidence to prove that Shenhua Company harms its interests during the period of its shareholding. According to the facts ascertained in the original trial, both parties agreed that Beijing Yuanzhong Real Estate Development Co., Ltd., the shareholder of Shenhua Company, was responsible for the operation of Shenhua Company. Therefore, the loan purpose and house operation mode of Shenhua Company advocated by Rongsheng Company belong to the company autonomy category of daily operation of Shenhua Company. And in the resolution of the shareholders' meeting held by Shenhua Company on February 28, 2018, the follow-up operation of the house developed by Shenhua Company and the company's capital status were also resolved as the topics of the meeting. It is also reflected in the letter of intent for equity transfer on June 27, 2013. Rongsheng Company did not provide preliminary evidence to prove the fact that its legitimate rights and interests were damaged during the period of its shareholding, and the original ruling rejected the facts and applied the law. (III) whether the successor shareholder can exercise the shareholder's right to know about the information before it becomes a shareholder. A successor shareholder is a shareholder who acquires the status of a shareholder by transferring equity, accepting gifts, inheriting equity, etc. Based on the lack of trust of the original shareholders in the successor shareholders, the continuing shareholders to obtain shareholder qualification before the operating level may have defects and other reasons, the refusal of the successor shareholders to access the information before they become shareholders of the company often occurs, which leads to the shareholders' right to know litigation. In this regard, there are mainly two different views in judicial practice: the first is that the successor shareholder cannot exercise the shareholder's right to know about the information before he becomes a shareholder; the second is that the successor shareholder enjoys the shareholder's right to know about the information before he becomes a shareholder, and the current mainstream judicial view is the second, mainly for the following reasons: 1. Existing laws and judicial interpretations do not prohibit shareholders from accessing the company information before they became shareholders. Once you become a shareholder of the company, you have exactly the same rights as other shareholders and should not be treated differently or limited by the time you become a shareholder of the company. 2. The operation of the company is a whole, dynamic and continuous process. The business decisions made by the company are closely related to the transactions and decisions that have taken place before. When shareholders exercise their voting rights on the company, they also take the understanding of the overall situation of the company as a prerequisite. 3. Shareholders shall be liable for the debts of the Company to the extent of their capital contributions, including the debts incurred by the Company prior to their accession, and from the point of view of the consistency of rights and obligations, shareholders shall also have the right to consult and copy the relevant documents of the Company prior to their accession. [Case 1] Dispute between Appellant Beijing Forty People Forum Consulting Co., Ltd. and Appellee Zhang Jialin Shareholders' Right to Know (Case No.:(2022) Beijing 02 Minzong No. 1675, Trial Court: Beijing No.2 Intermediate People's Court) The court held that: First of all, Article 33 of the Company Law clearly stipulates that the shareholders of a limited liability company have the right to consult and copy the articles of association, the minutes of the shareholders' meeting and other documents and to request access to the company's accounting books, and does not prohibit shareholders from consulting the relevant documents before they become shareholders. Secondly, the legislation of shareholders' right to know is intended to allow shareholders to fully grasp the company's information, management activities and risk status, so as to supervise the company's management and protect the legitimate rights and interests of shareholders. The company's operation is a whole, dynamic and continuous process, the company's business decisions are closely related to the previous transactions and decisions, shareholders in the exercise of voting rights in the company is also based on the understanding of the overall situation of the company. In addition, the shareholders shall be liable for the debts of the company to the extent of their capital contribution, including the debts incurred by the company before the shareholders joined, so from the point of view of the consistency of rights and obligations, the shareholders shall also have the right to consult and copy the relevant documents of the company before their accession. Therefore, it is not improper for the court of first instance to support Zhang Jialin to consult and copy the relevant documents of the company before he became a shareholder. The Forty-Person Forum's claim that Zhang Jialin's exercise of the shareholders' right to know should be limited to his appeal after he became a shareholder has no factual and legal basis, and the Court does not support it. [Case 2] Plaintiff Wang Yanfeng and Defendant Changzhou Sanli Precision Machinery Co., Ltd. Shareholder's Right to Know Dispute (Case No.:(2012) Zhong Shang Chu Zi No. 555, Trial Court: Zhonglou District People's Court of Changzhou City, Jiangsu Province) The court held that: regarding the defendant's argument that the plaintiff only obtained the shareholder qualification in 2008, it can only consult the accounting books after 2008, the court held that the shareholders' right to know is an inherent legal right of the shareholders of the company. once they become shareholders of the company, they enjoy exactly the same rights as other shareholders and should not be treated differently or restricted according to the time they become shareholders of the company. therefore, the defendant's argument has no legal basis and will not be accepted. As to whether the plaintiff's request for access to the accounting books two years ago from the date of prosecution has exceeded the statute of limitations, in this case, the statute of limitations is essentially a question of the scope of access. The court held that the company's operation is a process of overall continuity, the company's situation today may be the result of previous operations, if the absolute identity of the right, shareholders may not access to the relevant information before the acquisition of shareholder identity, will inevitably lead to incomplete protection of shareholders' rights and interests. After a shareholder joins the company and becomes a shareholder, the understanding and mastery of the company's operating conditions and financial information before he becomes a shareholder should fall within the scope of his proper exercise of the shareholder's right to know, so in this case the plaintiff has the right to request access to the company's accounting books before he joined the company. (IV) whether dormant shareholders can exercise shareholders' right to know Existing laws and judicial interpretations do not recognize that anonymous shareholders have direct shareholder rights over the company. In principle, the hidden shareholder cannot directly exercise the shareholder's right to know, its rights need to be exercised indirectly through the prominent shareholder, most courts will rule to dismiss the anonymous shareholder's lawsuit on the grounds that the anonymous shareholder is not qualified to bring the shareholder's right to know before the name is revealed. However, in conjunction with judicial cases, the court may also support its right to know request if the anonymous shareholder can prove that the company and other shareholders recognize its status as an anonymous shareholder, that the anonymous shareholder has exercised the rights of shareholders, and that the exercise of the rights of the anonymous shareholder is legitimate. [Case 1] Dispute between Plaintiff Liu Kewei and Defendant Shanxi Fengneng Refractory Co., Ltd., Third Person Wu Zhaowei and Huo Kaiyang Shareholders' Right to Know (Case No.:(2021) Jin 0781 Min Chu No. 1827, Trial Court: Jiexiu Municipal People's Court of Shanxi Province) The court held that Article 32, paragraph 2, of the the People's Republic of China Company Law stipulates: "Shareholders recorded in the register of shareholders may claim to exercise their rights in accordance with the register of shareholders." The Supreme People's Court on the application<中华人民共和国公司法>若干问题的规定（三）》第二十四条第三款规定：“实际出资人未经公司其他股东半数以上同意，请求公司变更股东、签发出资证明书、记载于股东名册、记载于公司章程并办理公司登记机关登记的，人民法院不予支持”。本案中，各方当事人对刘克维系山西丰能公司实际出资人的身份以及霍凯洋系山西丰能公司名义出资人的身份均无异议。根据前述法律规定可知，股东知情权是法律赋</中华人民共和国公司法>

2022-04-30

Civil and Commercial Perspective... One of the spouses is required to pay compensation in an incidental civil lawsuit for a crime, and the spouse is required to retain more property, and the application for the division of the joint property of the husband and wife in the marriage can be supported.

Brief description of case Zhang Qingshan and Li Jing got married in 2010 and gave birth to a man and a woman together after marriage. At about 19:00 on April 27, 2021, Zhang Qingshan drank and drove a two-wheeled motorcycle without a license plate. The victims Jiang Moumou (female, 63 years old) and Chen Moumou (male, 42 years old) who were walking in the same direction on a certain road were injured by two mother and son. Jiang Moumou died after rescue. The public security organs determined that Zhang Qingshan bear full responsibility for the accident. The procuratorate believes that Zhang Qingshan's traffic accident caused by driving a vehicle in violation of traffic laws and regulations, resulting in one death and one injury, should be investigated for criminal responsibility for the crime of causing traffic accidents. The court was asked to sentence Zhang Qingshan to two years and six months in prison in accordance with the provisions of Article 133 and the third paragraph of Article 67 of the the People's Republic of China Criminal Law. The plaintiffs of the incidental civil action, Chen Mouwen and Chen Moumou, filed an incidental civil action with the court, requesting Zhang Qingshan to compensate Jiang Moumou for death compensation, funeral expenses, medical expenses and other economic losses totaling 970387.58 yuan. Chen Moumou filed an incidental civil lawsuit to the court, petitioning Zhang Qingshan to compensate for medical expenses, food subsidies, nursing expenses, lost work expenses, and transportation expenses, totaling 12193.75 yuan. The court held that Zhang Qingshan constituted a traffic accident crime and should be punished in accordance with the law and sentenced Zhang Qingshan to 2 years in prison. Zhang Qingshan was also sentenced to compensate the plaintiffs of the incidental civil action Chen Mouwen and Chen Moumou for medical expenses, death compensation, and funeral expenses, totaling 970387.58 yuan; Zhang Qingshan was sentenced to compensate the plaintiff of the incidental civil action Chen Moumou for medical expenses, food subsidies, Nursing expenses, lost work expenses, transportation expenses, a total of 12193.75 yuan. For this reason, Li Jing, Zhang Qingshan's spouse, wanted to keep more property and applied to the court for the division of the couple's common property. Can the consultation be supported? Lawyer's opinion First of all, according to the provisions of the the People's Republic of China Civil Code, the request for the division of the joint property of husband and wife should be a legal fact of divorce, or there are major reasons. Secondly, the material reason cannot be extended. The major reason is: one party has hidden, transferred, sold, destroyed, squandered the joint property of the husband and wife, or forged the joint debt of the husband and wife, etc., which seriously damages the interests of the joint property of the husband and wife, or when the person with the legal maintenance obligation suffers from a major illness and needs medical treatment, If he does not agree to pay the relevant medical expenses, he may propose to divide the joint property of the husband and wife within marriage. In other circumstances, the joint property of the husband and wife shall not be divided. Third, because in this case Li Jing is due to the spouse Zhang Qingshan crime need to pay compensation in the incidental civil action, Li Jing in order to retain more property, the application for the division of the joint property of the husband and wife, the application is not a major reason for the division of the joint property of the husband and wife within the marriage. Finally, when the people's court executes the judgment of incidental civil action, it will refer to the Supreme People's Court's "Several Provisions on the Partial Execution of Criminal Judgments Involving Property" to leave property for the family members of the person subject to execution that meets their basic living needs. Judicial Viewpoint of the Supreme People's Court If there is no agreed property system between husband and wife, the system of joint income after marriage is implemented, the most typical form of which is the common ownership of husband and wife. The request for division of the joint property of the husband and wife shall be "the loss of the common basis or there is a significant reason". For the husband and wife, the loss of the common basis should be the legal fact that divorce has occurred, and the reason for dividing the common property of the husband and wife without divorce is not valid. From the technical point of view of "legislation", after listing the above two "major reasons", the judicial interpretation does not have a general clause or adopt the word "etc", so as to give the applicable person flexibility according to the specific circumstances of the case. However, legislators mainly consider that the common property of husband and wife is the main economic basis for maintaining the family life of the marriage parties. Easily shaking this foundation will have a negative impact on the marriage and family life of the parties and the relationship between husband and wife. Therefore, in the case of no divorce, the division of the joint property of husband and wife through litigation is a very special case, and the scope of application shall not be expanded without authorization. When one of the spouses commits an intentional crime and needs to pay a huge amount of compensation in a criminal incidental civil action, the people's court shall not support the application for the division of the joint property of the husband and wife for the purpose of keeping more property for themselves, including their minor children. When executing a judgment in an incidental civil action, the people's court will not take the personal property of other family members of the person subject to execution as the subject of execution; if the joint property of husband and wife is executed, it will also leave property to the family members of the person subject to execution that meets their basic living needs. Legal provisions 1. Article 203 of the Civil Code stipulates that if the co-owners agree not to divide the shared real or movable property in order to maintain the common relationship, they shall follow the agreement, but if the co-owners have major reasons to need to divide, they may request division. If there is no agreement or the agreement is unclear, the co-owners may request division at any time, and the co-owners may request division when the basis of sharing is lost or there are major reasons for division. If the division causes damage to other co-owners, compensation shall be paid. 2. Article 1062 of China's Civil Code stipulates that the following property acquired by husband and wife during the marriage relationship shall be the joint property of husband and wife and shall be jointly owned by husband and wife: (I) wages, bonuses and remuneration for labor services; Income from (II) production, operation and investment; Proceeds from the (III) of intellectual property rights; Property inherited or donated by the (IV), except as provided in Item 3 of Article 1063 of this Law; (V) other property which shall be owned jointly. Husband and wife have equal rights to dispose of common property. 3. Article 1066 of the Civil Code stipulates that during the existence of the marriage relationship, under any of the following circumstances, one of the spouses may request the people's court to divide the common property: One of the (I) parties has concealed, transferred, sold off, destroyed or squandered the joint property of the husband and wife, or forged the joint debts of the husband and wife, which seriously damages the interests of the joint property of the husband and wife; (II) a person with a legal maintenance obligation suffers from a major illness and needs medical treatment, the other party does not agree to pay the relevant medical expenses. 4. Article 9 of the Supreme People's Court's "Several Provisions on the Partial Execution of Criminal Judgments Involving Property" stipulates that if a sentence of confiscation of property is imposed, the property legally owned by the person subject to execution shall be executed when the criminal judgment takes effect. In the execution of the penalty of confiscation of property or fine, the living expenses of the person subject to execution and his dependent family members shall be retained with reference to the minimum living expenses of the local residents of the previous year announced by the government of the place where the dependants live.

2022-04-30

Viewpoint... Practical analysis of the determination of the subject of the exercise of shareholders' right to know.

1. Introduction According to the the People's Republic of China Company Law and the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law, the qualified subject to exercise the shareholders' right to know is the shareholders of the company. However, in judicial practice, it is often controversial whether the plaintiff has the status of a shareholder who enjoys the right to know. This paper will combine the current law, the provisions of judicial interpretation and the judicial cases of disputes over shareholders' right to know to analyze the determination of the subject of the exercise of shareholders' right to know. 2. Main Legal Provisions the People's Republic of China Companies Act (I) (as amended in 2018) Article 33 Shareholders shall have the right to consult and copy the articles of association, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports. Shareholders may request access to the accounting books of the company. If a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose and may damage the legitimate interests of the company, it may refuse to provide access, and shall reply to the shareholders in writing within 15 days from the date of the written request of the shareholders and explain the reasons. If the company refuses to provide inspection, the shareholder may request the people's court to require the company to provide inspection. Article 97 Shareholders shall have the right to consult the articles of association, the register of shareholders, the stubs of corporate bonds, the minutes of the general meeting of shareholders, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports, and to make suggestions or inquiries about the operation of the company. (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law of the People's Republic of (II) (as amended in 2020) Article 7 Where a shareholder, in accordance with the provisions of Articles 33 and 97 of the Company Law or the Articles of Association of the Company, sues for the inspection or copying of specific documents and materials of the Company, the people's court shall accept them in accordance with the law. If the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualification of a shareholder of the company at the time of the lawsuit, the people's court shall reject the lawsuit, but the plaintiff has preliminary evidence to prove that its legitimate rights and interests have been damaged during the shareholding period, and requests to consult or copy the company's specific documents and materials during the shareholding period in accordance with the law. Sorting out 3. referee rules The general principle of the determination of the subject of the exercise of the right to know of (I) shareholders. The general principle of the determination of the subject of the exercise of the shareholders' right to know is to qualify as a shareholder of the company. The court will often determine whether the plaintiff has the qualification of a shareholder based on the external registration information of the company, the articles of association, the register of shareholders, the certificate of capital contribution and other documents that can reflect the identity of the shareholder. Therefore, shareholders should submit shareholder qualification documents when filing a shareholder's right to know lawsuit. [Case 1] Dispute over Shareholders' Right to Know between Applicant Yangzhou Xicheng Real Estate Development Co., Ltd. and Respondent Rongwei International Development Co., Ltd. (Case No.:(2019) Supreme Law Minshen No. 5859, Trial Court: Supreme People's Court) The court held that the industrial and commercial registration information showed that Rongwei Company held the equity of Xicheng Company. Although Xicheng Company advocates that there is a "Supplementary Agreement" that can prove that Roewe Company has transferred its equity, it has not gone through the corresponding industrial and commercial change registration, nor has it gone through the procedures for foreign investment approval. Rongwei company in the case of the first instance cross-examination of the "supplementary agreement" is not recognized. Combined with the foregoing analysis, Xicheng did not provide sufficient evidence to overturn the contents of the industrial and commercial registration data. According to the second paragraph of Article 32 of the the People's Republic of China Company Law, the original trial court ruled that Roewe Company, as a shareholder of Xicheng Company recorded in the register of shareholders, has the right to exercise the shareholders' right to know to Xicheng Company. [Case 2] Retrial Dispute between Applicant Lanzhou Huamei Trading Co., Ltd. and Respondent Zhou Wanyin's Shareholders' Right to Know (Case No.:(2019) Gan Minshen No. 82, Trial Court: Gansu Higher People's Court) The court held that the certificate of capital contribution is in nature a certificate of real rights, a certificate of proof that the shareholders hold shares or capital contributions. In this case, on July 15, 2014, the "Certificate of Shareholder's Capital Contribution" sealed by Huamei Trading Company and signed by the legal representative Jiao Huaizhou stated: "The company's shareholder Zhou Wanyin paid the company on January 15, 2013. The capital contribution is 400,000 yuan (the above invested capital is my own capital, and the capital can be used to bear the civil liability of the enterprise during its use). Such shareholder shall, from the date of issuance of this capital contribution certificate, enjoy the rights of shareholders as stipulated in the Articles of Association of the Company." On January 5, 2015, the industrial and commercial change registration was made, so it was not improper for Zhou Wanyin to enjoy the shareholders' right to know according to the original judgment. Huamei Trading Company's claim that Zhou Wanyin's transfer of shares did not comply with the provisions of the law and the Articles of Association of the Company and Zhou Wanyin's fraudulent registration of industrial and commercial changes cannot be countered against Zhou Wanyin's "Certificate of Shareholder Capital Contribution" and industrial and commercial registration. (II) whether the withdrawing shareholder/transferring shareholder can exercise the shareholder's right to know Prior to the implementation of the (IV) of the Provisions of the Supreme People's Court on Certain Issues Concerning the Application of the the People's Republic of China Company Law, most courts would rule to dismiss the action of the withdrawing/transferring shareholder on the grounds that the withdrawing/transferring shareholder was not qualified as a shareholder. Article 7 of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law adds the limited right to know of the shareholders who have withdrawn shares/transferred shares, that is, "if the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualification of a company shareholder at the time of prosecution, the people's court shall reject the prosecution, but the plaintiff has preliminary evidence to prove that his legitimate rights and interests have been damaged during the period of shareholding, except for requesting legal access to or copying of company-specific documents during the period of its shareholding". In other words, in order to exercise the shareholders' right to know, the withdrawing shareholders/transferring shareholders need to have preliminary evidence that their legitimate rights and interests have been damaged during the holding period. In judicial practice, most courts have held that the "legitimate rights and interests" here do not refer to arbitrary shareholders' rights, but mainly to property rights and interests that affect the distribution of profits or the distribution of surplus property, and that if only non-property rights and interests are harmed, it may still be impossible to exercise the right to know. [Case 1] Dispute between Appellant Shanghai Zhongshan Car Rental Company and Appellee Xue Hong Shareholders' Right to Know (Case No.:(2019) Hu 02 Min Zhong No. 1660, Trial Court: Shanghai No.2 Intermediate People's Court) The court held that the question of whether the original shareholders of the joint-stock cooperative enterprise have a limited right to know. The articles of association of Zhongshan Automobile Company do not stipulate the content of shareholders' right to know. Considering the commercial organizational nature of the shareholder cooperative enterprise, which has a certain degree of similarity with the limited liability company, and Zhongshan Automobile Company also agreed to apply the Company Law and its judicial interpretation in the appeal, the provisions of the Company Law and the relevant judicial interpretation can be referred to in this case. The second paragraph of Article 7 of the "Interpretation IV of the Company Law" stipulates: "If the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualifications of a company shareholder at the time of the lawsuit, the people's court shall reject the lawsuit, but the plaintiff has preliminary evidence to prove that during the shareholding period Its legitimate rights and interests have been damaged, except for requesting to consult or copy the company's specific documents during the shareholding period in accordance with the law." According to this article, although Xue Hong has lost the shareholder qualification of Zhongshan Automobile Company, because Zhongshan Automobile Company has never distributed profits during Xue Hong's shareholding period and has not yet settled the refund of Xue Hong's withdrawal amount, it meets the condition that "the plaintiff has preliminary evidence to prove that its legitimate rights and interests were damaged during the shareholding period". Therefore, the court believes that Xue Hong, as the original shareholder of Zhongshan Automobile Company, enjoys limited shareholders' right to know. [Case 2] Dispute over Shareholders' Right to Know between Applicant Shandong Rongsheng Investment Co., Ltd. and Respondent Qingdao Shenhua Real Estate Co., Ltd. (Case No.:(2019) Lu Minshen No. 3159, Trial Court: Shandong Higher People's Court) The court held that: Article 7, paragraph 2, of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates that if the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualifications of a company shareholder at the time of the lawsuit, the people's court The lawsuit shall be rejected, but the plaintiff has preliminary evidence to prove that his legal rights and interests were damaged during the shareholding period, except for requesting to consult or copy the company's specific documents during the shareholding period. In accordance with the above provisions, Rongsheng Company shall provide preliminary evidence to prove that Shenhua Company harms its interests during the period of its shareholding. According to the facts ascertained in the original trial, both parties agreed that Beijing Yuanzhong Real Estate Development Co., Ltd., the shareholder of Shenhua Company, was responsible for the operation of Shenhua Company. Therefore, the loan purpose and house operation mode of Shenhua Company advocated by Rongsheng Company belong to the company autonomy category of daily operation of Shenhua Company. And in the resolution of the shareholders' meeting held by Shenhua Company on February 28, 2018, the follow-up operation of the house developed by Shenhua Company and the company's capital status were also resolved as the topics of the meeting. It is also reflected in the letter of intent for equity transfer on June 27, 2013. Rongsheng Company did not provide preliminary evidence to prove the fact that its legitimate rights and interests were damaged during the period of its shareholding, and the original ruling rejected the facts and applied the law. (III) whether the successor shareholder can exercise the shareholder's right to know about the information before it becomes a shareholder. A successor shareholder is a shareholder who acquires the qualification of a shareholder by way of transfer of equity, acceptance of gifts, inheritance of equity, etc. Based on the lack of trust of the original shareholders in the successor shareholders, the continuing shareholders to obtain shareholder qualification before the operating level may have defects and other reasons, the refusal of the successor shareholders to access the information before they become shareholders of the company often occurs, which leads to the shareholders' right to know litigation. In this regard, there are mainly two different views in judicial practice: the first is that the successor shareholder cannot exercise the shareholder's right to know about the information before he becomes a shareholder; the second is that the successor shareholder enjoys the shareholder's right to know about the information before he becomes a shareholder, and the current mainstream judicial view is the second, mainly for the following reasons: 1. Existing laws and judicial interpretations do not prohibit shareholders from accessing the company information before they became shareholders. Once you become a shareholder of the company, you have exactly the same rights as other shareholders and should not be treated differently or limited by the time you become a shareholder of the company. 2. The operation of the company is a whole, dynamic and continuous process. The business decisions made by the company are closely related to the transactions and decisions that have taken place before. When shareholders exercise their voting rights on the company, they also take the understanding of the overall situation of the company as a prerequisite. 3. Shareholders shall be liable for the debts of the Company to the extent of their capital contributions, including the debts incurred by the Company prior to their accession, and from the point of view of the consistency of rights and obligations, shareholders shall also have the right to consult and copy the relevant documents of the Company prior to their accession. [Case 1] Dispute between Appellant Beijing Forty People Forum Consulting Co., Ltd. and Appellee Zhang Jialin Shareholders' Right to Know (Case No.:(2022) Beijing 02 Minzong No. 1675, Trial Court: Beijing No.2 Intermediate People's Court) The court held that: First of all, Article 33 of the Company Law clearly stipulates that the shareholders of a limited liability company have the right to consult and copy the articles of association, the minutes of the shareholders' meeting and other documents and to request access to the company's accounting books, and does not prohibit shareholders from consulting the relevant documents before they become shareholders. Secondly, the legislation of shareholders' right to know is intended to allow shareholders to fully grasp the company's information, management activities and risk status, so as to supervise the company's management and protect the legitimate rights and interests of shareholders. The company's operation is a whole, dynamic and continuous process, the company's business decisions are closely related to the previous transactions and decisions, shareholders in the exercise of voting rights in the company is also based on the understanding of the overall situation of the company. In addition, the shareholders shall be liable for the debts of the company to the extent of their capital contribution, including the debts incurred by the company before the shareholders joined, so from the point of view of the consistency of rights and obligations, the shareholders shall also have the right to consult and copy the relevant documents of the company before their accession. Therefore, it is not improper for the court of first instance to support Zhang Jialin to consult and copy the relevant documents of the company before he became a shareholder. The Forty-Person Forum's claim that Zhang Jialin's exercise of the shareholders' right to know should be limited to his appeal after he became a shareholder has no factual and legal basis, and the Court does not support it. [Case 2] Plaintiff Wang Yanfeng and Defendant Changzhou Sanli Precision Machinery Co., Ltd. Shareholder's Right to Know Dispute (Case No.:(2012) Zhong Shang Chu Zi No. 555, Trial Court: Zhonglou District People's Court of Changzhou City, Jiangsu Province) The court held that: regarding the defendant's argument that the plaintiff only obtained the shareholder qualification in 2008, it can only consult the accounting books after 2008, the court held that the shareholders' right to know is an inherent legal right of the shareholders of the company. once they become shareholders of the company, they enjoy exactly the same rights as other shareholders and should not be treated differently or restricted according to the time they become shareholders of the company. therefore, the defendant's argument has no legal basis and will not be accepted. As to whether the plaintiff's request for access to the accounting books two years ago from the date of prosecution has exceeded the statute of limitations, in this case, the statute of limitations is essentially a question of the scope of access. The court held that the company's operation is a process of overall continuity, the company's situation today may be the result of previous operations, if the absolute identity of the right, shareholders may not access to the relevant information before the acquisition of shareholder identity, will inevitably lead to incomplete protection of shareholders' rights and interests. After a shareholder joins the company and becomes a shareholder, the understanding and mastery of the company's operating conditions and financial information before he becomes a shareholder should fall within the scope of his proper exercise of the shareholder's right to know, so in this case the plaintiff has the right to request access to the company's accounting books before he joined the company. (IV) whether dormant shareholders can exercise shareholders' right to know Existing laws and judicial interpretations do not recognize that anonymous shareholders have direct shareholder rights over the company. In principle, the hidden shareholder cannot directly exercise the shareholder's right to know, its rights need to be exercised indirectly through the prominent shareholder, most courts will rule to dismiss the anonymous shareholder's lawsuit on the grounds that the anonymous shareholder is not qualified to bring the shareholder's right to know before the name is revealed. However, in conjunction with judicial cases, the court may also support its right to know request if the anonymous shareholder can prove that the company and other shareholders recognize its status as an anonymous shareholder, that the anonymous shareholder has exercised the rights of shareholders, and that the exercise of the rights of the anonymous shareholder is legitimate. [Case 1] Dispute between Plaintiff Liu Kewei and Defendant Shanxi Fengneng Refractory Co., Ltd., Third Party Wu Zhaowei and Huo Kaiyang Shareholders' Right to Know (Case No.:(2021) Jin 0781 Minchu No. 1827, Trial Court: Jiexiu Municipal People's Court of Shanxi Province) The court held that Article 32, paragraph 2, of the the People's Republic of China Company Law stipulates: "Shareholders recorded in the register of shareholders may claim to exercise their rights in accordance with the register of shareholders." The Supreme People's Court on the application<中华人民共和国公司法>若干问题的规定（三）》第二十四条第三款规定：“实际出资人未经公司其他股东半数以上同意，请求公司变更股东、签发出资证明书、记载于股东名册、记载于公司章程并办理公司登记机关登记的，人民法院不予支持”。本案中，各方当事人对刘克维系山西丰能公司实际出资人的身份以及霍凯洋系山西丰能公司名义出资人的身份均无异议。根据前述法律规定可知，股东知情权是法律赋</中华人民共和国公司法>

2022-04-30