Zhongcheng Qingtai. Real estate perspective: "Jinan City property management regulations" after the implementation of the street office, town people's government property management responsibilities work review.

The Sub-district Office (hereinafter referred to as the "Sub-district Office") is the management agency of the township-level administrative district in my country. It is an agency dispatched by the district government and belongs to the township-level administrative district management agency with the town people's government (hereinafter referred to as the "town government"). Construction, public services, urban management, social governance, etc. exercise comprehensive management functions, are fully responsible for the coordination of regional, social, and mass work in the jurisdiction, and create a good development environment. One end of the street office and the town government is connected with the grass-roots level of society, which is the "nerve endings" closest to the people; the other end is connected with the government, which is the foothold of government power, implements the political intention and administrative concept of the higher government, and widely contacts the residents in the jurisdiction, It plays an important role in promoting regional economic development, serving and improving people's livelihood, and comprehensive management of social security. The street office and the town government are powerful assistants to the policy of governing the country according to law. The "Jinan City Property Management Regulations", which will be implemented on May 1, 2022, clarifies the organization, coordination, guidance and supervision of "people" and "things" in the property management area by the street office and the town government. Regarding the responsibilities of the street office and the town government in property management, Article 5 of the Jinan City Property Management Regulations makes inductive provisions on the responsibilities of the street office and the town government. The relevant content of the regulations also shows many bright spots. The specific content is analyzed and summarized as follows: The 1. is responsible for organizing and guiding the establishment of the owners' assembly and the election and change of the owners' committee in its jurisdiction. 1. Set up the preparatory group for the owners' meeting The construction unit or the preliminary property service person shall report the number, area and proportion of owners to the subdistrict office and the town government within 10 days from the date of delivery. If the conditions for holding the first owners' meeting are met, the subdistrict office and the town government shall form a preparatory group for the owners' meeting within 60 days. The construction unit or the preliminary property service person shall submit a written report in accordance with the requirements of the subdistrict office and the town government, the subdistrict office and the town government shall have the right to inquire the name of the owner, the location of the house and the floor area of the exclusive part of the real estate registration institution. 2, send personnel to serve as the leader of the preparatory group The preparatory group consists of an odd number of more than 7 people, and the group leader is appointed by the neighborhood office and the town government, who is responsible for presiding over and convening the preparatory group. The preparatory group shall announce the list of its members and their duties within 10 days after its establishment. 3. Extension of consent and re-establishment of the preparatory group The preparatory group shall organize the first meeting of the owners' assembly within 90 days from the date of its establishment. If there are special circumstances, with the consent of the street office and the town government, it can be extended for 30 days and announced in the property management area. If the task of organizing the first meeting of the owners' assembly is not completed, the preparatory group shall be dissolved on its own. Within 90 days from the date of dissolution of the preparatory group, the subdistrict office and the town government shall re-establish the preparatory group. 4. Determine the list of candidates for the members of the owners' committee The candidates for the members of the owners' committee shall be selected by the owners' self-recommendation or joint recommend. The list shall be determined by the street office and the town government, and the basic information of the candidates shall be publicized by the preparatory group in the property management area. 5. Receive the filing information of the owners' committee The district housing and urban-rural construction authorities will push the filing information of the eligible owners' committee to the street office and the town government. 6. Urge the owners' committee to prepare for the general election 90 days before the expiration of the term of office of the owners' committee, it shall report in writing to the street office and the town government, and start the preparatory work for the general election; if the owners' committee fails to report within the time limit or start the preparatory work for the general election, the street office and the town government shall urge it to perform its duties. 7. Establishment of temporary property management committee If the conditions for the establishment of the owners' meeting are met, the owners' meeting has been organized twice but the owners' committee has not been elected, or the owners' committee needs to be re elected due to the expiration of its term of office or the vacancy of its members or being removed. However, a new owners' committee cannot be elected after being organized and guided by the street office and the town government twice, The street office and town government shall form a temporary property management committee. The director and deputy director of the temporary property management committee are selected by the neighborhood office and the town government from the representatives of the residents committee and the owners. The street office and the town government shall publicize the list of members of the temporary property management committee in the property management area before the establishment of the temporary property management committee, and the publicity time shall not be less than 7 days; if the owner has any objection, he may submit it to the street office or the town government with his real name. 2. supervise the owners' assembly and owners' committee to perform their duties according to law 1. Supervise the transfer of relevant matters of the original owners' committee Supervise the original owners' committee to transfer the seals, funds, office space, articles and materials kept and used by the original owners' committee to the new owners' committee within 3 days from the date of expiration of the term of office. 2. Supervise the legal compliance of the decisions of the owners' assembly and the owners' committee The decisions of the owners' assembly and the owners' committee shall not violate the provisions of laws, regulations, management regulations and rules of procedure of the owners' assembly. In case of violation of laws, regulations and other provisions, the street office or the town government shall order it to make corrections within a time limit or revoke its decision, and make an announcement to all owners. 3. Supervise the owners' committee to perform its duties in accordance with the law and regulations, and not damage the owners' rights and interests The owners' committee has exceeded its authority to exercise the powers of the owners' assembly or fails to implement the decisions of the owners' assembly, fails to organize and convene the owners' assembly meeting in accordance with the rules of procedure, misappropriates or embezzles residential special maintenance funds, owners' public income, makes decisions that violate laws and regulations, fails to publicize property management information such as the use and management of residential special maintenance funds, the use and management of owners' public income, and the use of property service houses, forgery and other acts that infringe upon the legitimate rights and interests of the owners, the street office and the town government shall order them to make corrections within a time limit, and if they refuse to make corrections within the time limit and cause serious consequences, the street office and the town government shall organize a meeting of the owners' meeting, propose to terminate the qualifications of all members of the owners' committee and initiate the procedure of re-election in advance; suspected illegal acts, Should report to relevant departments. 4. Supervise and guide the temporary property management committee the term of office of the provisional estate management committee shall not exceed two years. During the term of office, at least one meeting of the owners' assembly shall be organized every year to promote the establishment of the owners' assembly and elect the owners' committee. If the establishment of the owners' assembly or the election of the owners' committee is not promoted at the expiration of the period, the street office and the town government shall re-establish the temporary property management committee. The temporary property management committee shall disclose the relevant information of property management to the owners in a timely manner, and accept the guidance and supervision of the street office and the town government. If the decision made by the temporary property management committee violates laws and regulations, the street office or town government shall order it to make corrections within a time limit or revoke its decision in accordance with the law, and notify all owners. 3. the establishment of a joint meeting system for property management in the jurisdiction The property management joint meeting is convened by the neighborhood office and the township government, and is attended by community residents committees, public security police stations, property service providers, owners' committees or owners' representatives, professional business units, comprehensive law enforcement, property management and other departments. The main coordination of the joint meeting: 1. The owners' committee and relevant departments fail to perform their duties in accordance with the law; 2. Problems in the performance of exit procedures and handover work by property service personnel; 3. Emergencies in the property service area; 4. The connection and cooperation between property management and community management; 5. Other property management matters that need to be coordinated. 4. coordinate the handling of important issues and issues in property management 1. Disclosure of information to the owners in accordance with the provisions of these Regulations If the street office, the town government and the residents' committee are obliged to disclose information to the owners in accordance with the provisions of these regulations, they shall publish it in writing at the main entrances and exits of the property management area, the bulletin board, the property service room and other prominent locations, and the disclosure period shall not be less than seven days, and fill in the municipal property management service information system at the same time. 2. Property management area delineation Before the delimitation of the property management area, the opinions of the street office and the town government shall be solicited; after the delimitation, the information shall be pushed to the street office and the town government. 3. Supervise the voting results of the owners' meeting The owners' committee will report the voting results to the neighborhood office and the town government during the publicity period; if the publicity is not made within the time limit or the publicity does not meet the conditions, the neighborhood office and the town government shall order it to make corrections within a time limit, and if it fails to make corrections within the time limit, it shall be announced. 4, invited to participate in the property to undertake inspection work The construction unit shall carry out the property undertaking inspection work with the selected early-stage property service personnel after the completion and acceptance of the construction project, and shall invite a certain number of owner representatives and the street office, town government, and town government where the property is located to participate, and may hire relevant professionals when necessary Institutional assistance. 5. Supervise and guide the handover of the construction unit Supervise and guide the construction unit to hand over the copy of the property service room and relevant property management information to the property service person. 6, access to property services to establish and preserve the files and information 7. Coordinate property service personnel to take emergency measures When major hidden dangers of accidents or safety accidents and other emergencies are discovered, the property service person shall take emergency measures in a timely manner, notify the relevant owners, and report to the residents committee, sub-district office, town government, professional unit and safety supervision of the property in accordance with regulations. The department responsible for management reports to assist in related work. 8. Supervise and coordinate the handover of property service personnel The street office, town government, district and county housing and urban-rural construction departments where the property is located shall strengthen the supervision and coordination of the handover of property service personnel. If the property service person refuses to hand over the relevant materials, funds and articles, or refuses to withdraw from the property service area, the owners' committee or the owner may report to the street office, the town government, the district and county housing and urban-rural construction departments. 9. Organize and provide emergency services to maintain the basic living services of the owners When the property service provider terminates the property service without authorization in violation of the contract, resulting in a sudden loss of management, the street office and the town government shall organize and determine the emergency property service provider to provide emergency services such as garbage removal and elevator operation to maintain the basic living services of the owners. The street office and the town government shall publicize the service items, service standards and property fees for emergency services provided during the emergency service period in the property management area, and the property fees during the emergency service period shall be borne by all owners. During this period, the street office and the town government shall organize the owners to jointly decide on the selection of new property service personnel and coordinate the handover between the newly selected property service personnel and emergency property service personnel. 10, Mediation of Conflicts and Disputes in Property Management If there is a dispute between the owner, the owners' assembly, the owners' committee, the property service person, the professional business unit, and the construction unit due to the property management, it shall first negotiate and resolve it by itself; if the negotiation fails, it may apply to the street office, the town government or the residents committee for mediation. 11, the establishment of emergency response work system and materials and self-built security mechanism. The municipal, district and county people's governments, sub-district offices, and town governments shall include owners' committees and property service providers in the emergency response work system for epidemics and other related emergencies, and establish a material and financial guarantee mechanism. During the period of responding to public emergencies, the sub-district office and the town government are responsible for implementing various emergency measures taken by the municipal, district and county people's governments in accordance with the law, guiding property service providers to carry out corresponding levels of response work, and providing corresponding material and financial support. The street office and the town government shall perform their duties in strict accordance with the regulations, otherwise the higher-level competent authority or procuratorial organ will order them to correct violations of laws and regulations, and impose sanctions on the directly responsible persons in charge and other directly responsible persons in accordance with the law.

2022-04-25

Examples of retrial | A brief description of the status of the parties in a retrial case in the context of a specific case

Basic case Zhang is an individual business operator, and Li is a husband and wife relationship. In September 2017, Zhang borrowed money from Tai one after another. On May 8, 2018, after Zhang and Tai audited the accounts, together with the interest, Tai issued an IOU with an amount of 400000 yuan. The IOU did not stipulate interest, and it was agreed that this amount would be from April 10 to April 2019. One-time return on the 20th, if overdue, the interest will be settled in accordance with relevant laws and regulations. On October 9, 2019, Tai asked Li for money but failed to sue to the court, demanding that the loan principal be returned to 400000 yuan, and from May 8, 2018 to the date when the loan was repaid, the annual interest rate was 6%. Pay interest; litigation costs are borne by Zhang and Li. Zhang replied that there was beheading interest in 400000 yuan's IOU, and the actual loan principal was 370000 yuan. There is no objection to the authenticity of the 400000 yuan transfer record provided by Tai, because there are frequent business transactions between the two sides, of which 30000 yuan's transaction record is the payment for goods from individual industrial and commercial households paid by Tai. Li argued that although he was a husband and wife relationship with Zhang, the two were emotionally discordant. He did not rule out a false lawsuit between Zhang and Tai, and had objections to the authenticity of the IOU. He did not know or sign the loan, and the loan was not used. Family life and business, so it is not a joint debt of husband and wife. The court of first instance held that Zhang borrowed money from Tai, and the facts were clear and the evidence was indeed sufficient. According to the Supreme People's Court on the application<中华人民共和国婚姻法>Article 24 of the (II) for Interpretation of Certain Issues states that creditors who claim rights over the debts incurred by one of the spouses in their own name during the marriage relationship shall be treated as the joint debts of the husband and wife. Li mou argued that he did not know about the loan, the receipt was not signed by Zhang mou, did not submit relevant evidence, did not provide evidence to prove that the debt belonged to Zhang mou's personal debt, and his defense was not accepted. The judgment supports Tai's claim. Both Zhang and Li refused to accept the judgment and appealed to the court of second instance, saying that Zhang had frequent business contacts between the two sides, of which the transaction record of 30000 yuan was the payment for goods from individual industrial and commercial households paid by Tai, and the second instance submitted the details of sales records of individual industrial and commercial households. First of all, Li Mou appealed that Zhang's signature in the IOU provided by Tai Mou was not his own, and now Li Mou requires handwriting identification. Secondly, Li Mou thinks that Tai Mou stated in the original trial that the 400000 yuan loan was formed by three loans. The first loan was formed in September 2017. Now Li Mou finds out the receipt issued by Tai Mou to Zhang on December 31, 2018 at home, it is proved that the loan has been paid off in September 2017, so Tai's statement in court is not true and the IOU is false. Thirdly, according to the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of cases involving marital debt disputes, Li did not know or sign the loan, and there was no evidence to prove that it was used for family life and business, so it was not a joint debt of husband and wife. Tai argued that the 400000 yuan IOU issued by Zhang to Tai was issued by Zhang after the final settlement of multiple loans in Tai. According to Articles 24 and 26 of the Judicial Interpretation of the the People's Republic of China Marriage Law, Li should bear Repayment responsibility. In the second instance, upon Li's application, whether Zhang's signature in the 400000 yuan IOU on May 8, 2018 was written by himself was verified by handwriting. The appraisal opinion was: Zhang's signature was written by the borrower in the IOU, and the handwriting was written by Zhang himself. The court of second instance ruled that the appeal was rejected and the original judgment was upheld. Zhang and Li both refused to accept the second instance judgment and applied for a retrial. In the light of this case, how does the civil retrial application list the status of the parties? In practice, after the court accepts the application for retrial, how does it list the status of the parties? First, Zhang and Li, as defendants in the first instance and appellants in the second instance, can apply for a retrial if they refuse to accept the judgment of the second instance. Zhang and Li can jointly write a retrial application. Both parties are retrial applicants. Tai is the respondent. Zhang and Li specify the specific facts and reasons in the application. If Zhang and Li apply for retrial respectively, the court will also combine the review. Second, in practice, if both parties are not satisfied with the effective judgment and apply for retrial, within the statutory time limit, the court accepts and examines the retrial application of one party, and if the other party also applies for retrial, the court will review it together, listing both parties as the retrial applicant, and the review period shall be recalculated. If both parties apply for a retrial, one or both parties are established and the retrial is ruled. If neither party is established, the retrial shall be rejected. Third, how to list the status of the parties in the application for retrial. If (I) parties or outsiders apply for retrial, they shall be listed as "retrial applicants"; if all parties apply for retrial, they shall be listed as "retrial applicants"; the respondent specified in the retrial application shall be listed as "respondent"; other parties in the original trial who have not filed an application for retrial or have not been listed as the respondent shall be listed according to their status in the first instance, the second instance and the appellant in the second instance "; in the case of a retrial application for a ruling of inadmissibility, only the applicant for retrial shall be listed. (II) the brackets after "retrial applicant" and "respondent" specify the litigation status of the parties in the first, second and retrial according to "plaintiff of first instance, counterclaim defendant (or defendant of first instance, counterclaim plaintiff), appellant of second instance (or appellee of second instance), original retrial applicant (or original respondent)"; If a civil application for retrial has been retried more than twice, the retrial litigation status in brackets is listed according to the litigation status of the parties in the last retrial. The retrial procedure is initiated by the people's procuratorate's protest or the people's court ex officio, and the retrial litigation status in brackets is listed according to "original complainant (or original respondent)"; If an outsider applies for a retrial, the "outsider" shall be listed in brackets ". If the name of the (III) party changes, the original name shall be indicated in brackets after the name. If the (IV) party is a natural person, the name, gender, nationality, date of birth, occupation, and address shall be listed; if the natural person's occupation is not clear, it may not be stated; if the party is a legal person or other organization, the name, residence, and legal representative or The name and position of the main person in charge. (V) the party is a natural person, the address is written as "residence: specific address". If the address stated in the application for retrial is inconsistent with the address stated in the effective referee or ID card, the address is written as "residence: address stated in the ID card, current residence: address stated in the application for retrial". If the party concerned is a legal person or other organization, the domicile shall be written as "domicile: the domicile stated in the business license". If the party's address or residence is located in the municipal district, it shall be written as "×× province (municipality directly under the Central Government, autonomous region) ×× city ×× district (specific address)"; if the party's address or residence is in a county under the jurisdiction of the city or a county-level city under the jurisdiction of the city, it shall be written as "×× province (municipality directly under the Central Government, autonomous region) ×× county (city) (specific address)", not prefecture-level city (city); if two or more parties have the same address, they should be stated separately and cannot be replaced by "the same address as above. The legal representative or principal person in charge of a (VI) legal person or other organization is written as "legal representative (or person in charge):×××, chairman (or factory director, director, etc.) of the company (or factory, village committee, etc.)". To sum up, there are strict requirements for the status of the parties applying for retrial. I hope you will pay more attention when writing the application for retrial, so as not to cause unnecessary trouble. </中华人民共和国婚姻法>

2022-04-24

Civil and commercial perspective... Is the act of one of the husband and wife giving the common property to others without authorization.

Brief description of the case Ms. Zhang and Mr. Li registered their marriage in 2008. Soon after the marriage, the two had a son. After marriage, Ms. Zhang assumed the responsibility of husband and son. Mr. Li was full of confidence when he saw the lovely child. He worked hard to start a business for his family and set up a company. Later, she could not resist the temptation to have feelings with the company's female accountant and maintained an improper relationship between men and women for a long time. After that, the female accountant gave birth to a son for her. Mr. Li is very happy to pay 1.88 million yuan twice (July 12, 2018, July 26, 2018) to buy a real estate for the female accountant. Now Ms. Zhang wants to sue Mr. Li for giving the joint property of husband and wife to others without his own consent during the marriage relationship, which is invalid, and claims that the female accountant should return the grant of 1.88 million yuan. Can Ms. Zhang's claim be supported by the court? Advice from counsel When the husband or wife makes an important decision on the disposal of the common property of the husband and wife not due to the needs of daily life, the husband and wife shall consult on an equal footing and reach a consensus. The donation of common property by one of the spouses to another is a disposition of common property, which shall be null and void without the consent of the spouse. In this case, although the 1.88 million yuan disposed of by Mr. Li was paid from his personal bank account, the payment period was during the existence of the relationship with Ms. Zhang, and the 1.88 million yuan should be regarded as the joint property of Ms. Zhang and Mr. Li. If Ms. Zhang requests the court to confirm that the gift is invalid and requests the return of 1.88 million yuan, the court shall support it according to law. Judicial Viewpoint of the Supreme People's Court Although there are two different views of partial invalidity and total invalidity in reality, the act of giving the joint property to others without authorization by one of the spouses should be completely invalid. Partially invalid said One of the spouses gives a large amount of the joint property of the husband and wife to another without authorization, which obviously infringes the property rights and interests of the other party. The act of the gift should be found to be partially invalid, not completely invalid. Reason: The common property of the husband and wife includes both the husband's share and the wife's share, half of the property given to others is the share of one of the spouses, and the intention of one of the spouses to dispose of their own share should be true, and the other person can obtain half of the property rights. According to the general principle of common ownership stipulated in article 299 of the the People's Republic of China Civil Code, 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 two parties cannot divide their personal shares in 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 their joint relationship can the common property be divided and their respective shares determined. Therefore, the view that "half of the property given to others is the share of one of the spouses" cannot be established. All invalid said During the existence of the marital relationship, both husband and wife have equal rights to the common property, and either party has the right to decide whether to dispose of the common property due to the needs of daily life. If an important decision is made on the disposition of the joint property of the husband and wife not due to the needs of daily life, the husband and wife shall consult on an equal footing and reach a consensus. According to the second paragraph of Article 1062 of the the People's Republic of China Civil Code, one of the spouses gives the common property to another person free of charge for the sake of daily life, which seriously damages the property rights and interests of the other party, which violates the principle of fairness in civil law, and such a gift shall be invalid. To sum up: 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. It can be seen that, under a common relationship, the disposition of common property without the consent of all co-owners shall be null and void. Risk Alert In marriage and family, neither of the husband and wife should easily give the joint property of the husband and wife to the third party, and the third party should not accept the donated property at will. Because there is a risk that such a gift will be ineffective, as a recipient, it is likely that it will end up being just an empty joy. Article Link 1. Article 501 of the Civil Code of the people's Republic of China stipulates that the disposal of shared real or movable property and the major repair, change of nature or use of shared real or movable property shall be subject to the consent of the co-owners or all co-owners who account for more than 2/3 of the shares, unless otherwise agreed between the co-owners. 2. Article 299 of the Civil Code of the People's Republic of China stipulates that the co-owners have joint ownership of the real or movable property in common. The second paragraph of Article 1062 of the the People's Republic of China Civil Code stipulates that husband and wife have equal rights to deal with common property.

2022-04-23

Building Materials Perspective... The determination and operation of the force majeure clause in the contract of sale under the new crown outbreak.

As one of the most common economic contracts, the contract of sale was affected in many ways during the new crown epidemic. Especially for production and processing enterprises, in terms of raw material procurement, they may face the problems of not being able to purchase sufficient production necessities in time, the price of raw materials has risen sharply, and the production cost has increased significantly, which will cause profits to be compressed or even losses; in terms of sales, Because of the epidemic prevention and control measures in different regions, some product sales, overstock, and price drops, there may also be delays in delivery, failure to do so, or rejection of the other enterprise in breach of contract. This paper only analyzes the determination of force majeure involved in the purchase and sale of production and processing enterprises and makes suggestions on the operation of the legal level. The determination of the force majeure clause under the new crown outbreak in 1.. Since the New Crown epidemic in 2020, discussions have continued about the impact of the New Crown epidemic and force majeure on contract performance. The author believes that the epidemic is not necessarily equivalent to force majeure, the contract under the epidemic, whether it should be performed normally, or the application of the principle of change of circumstances to be changed, or belong to force majeure to be exempted or lifted, need to be defined in the light of the specific circumstances. Here, the author through the positive and negative two cases to briefly explain: Case one In general, unless expressly agreed in the contract, a shortage of raw materials is usually not a case of force majeure claimed by the seller because the seller should have other channels to ensure an adequate supply of raw materials. However, in the context of the new crown epidemic, the cause of the shortage of raw materials may be considered force majeure if the seller has no access to raw materials for reasons other than its own. However, it can also be seen from this case that the impact of the epidemic on the supply of raw materials is claimed to be force majeure, and it needs to be proved that the supply of raw materials is single and indeed affected by the epidemic and there are difficulties in the supply of raw materials. The court will make a comprehensive judgment based on the seller's performance of the contract and the communication between the two parties. It is worth noting that when force majeure is used as a cause of termination, the contract can often be terminated only when the force majeure causes the contract to be completely unfulfilled and the purpose of the contract cannot be achieved. If the contract cannot be performed for a while, the contract can still be performed once the cause of force majeure disappears. At this time, unless one of the parties has evidence to prove that the time factor has an important influence on the realization of the purpose of the contract, the delay in performance will cause the purpose of the contract to be unable to be realized, otherwise it can only produce the effect of deferred performance, but cannot terminate the contract. Case II As can be seen from the above cases, force majeure as an exemption has the legal effect only of exempting matters and liability within the scope of force majeure. If force majeure and the debtor's conduct together constitute the cause of the damage, the liability for the loss shall be divided according to the principle of proportionality in the proportion of the effect of the two on the occurrence of the damage, and the defense of force majeure shall not be supported if it is based on the subjective reasons of the debtor and not affected by force majeure. In addition, there is a situation in which the contract of sale can continue to be performed, but because of the epidemic factors, resulting in the performance of the contract is obviously unfair, the seller can also claim a change of circumstances to request the court or arbitral tribunal to adjust the rights and obligations of the contract. In this regard, the Supreme People's Court issued<关于依法妥善审理涉新冠肺炎疫情民事案件若干问题的指导意见（二）>The notice has clear provisions, the author will not repeat here. 2. legal operation suggestions (I) Clause Design The new crown epidemic has highlighted the importance of the formulation of force majeure clauses in contracts, and it is recommended that enterprises summarize and revise the force majeure clauses in contracts in a timely manner. The scope and consequences of force majeure can be agreed in the contract, and the risks that may be encountered can be considered and excluded in the force majeure clause, depending on the characteristics of the industry, the business model and the market involved. (II) timely notification When the new crown epidemic affects the performance of the contract, the enterprise shall promptly notify the other party, the content of the notice may include the claim of force majeure, the time, scope and extent of the impact of the epidemic, and what mitigation measures have been taken. It should be noted that the notification is not once and for all. The company should continue to notify the other party of the relevant situation at the corresponding time node, so that the other party can obtain the necessary time to take measures to reduce the loss, otherwise it will expand part of the loss and may still be liable. (III) fixed evidence Enterprises affected by the epidemic shall provide proof within a reasonable period of time, and even if the proof cannot be provided in a timely manner due to force majeure, they shall fix the evidence and provide proof as soon as possible within a reasonable time after the effect of force majeure has been reduced or disappeared. The scope of the form of proof is relatively broad, and the obligation to provide proof is not absolute in law, such as the closure of the city measures and the initiation of a local response and other important events, can be inquired through the relevant channels. It is recommended that enterprises pay attention to the retention of proof documents of force majeure (such as government notices, announcements, etc.), the sending records of notices, the other party's approval of force majeure and measures taken to reduce the impact of force majeure, the enterprise itself due to the impact of the epidemic and its prevention and control measures to stop production and sales or the sharp increase in operating costs and other evidence materials, in a dispute between the two parties in a timely manner to obtain lawyers, legal counsel and other professionals. (IV) positive impairment Enterprises should take timely mitigation measures after the epidemic situation leads to failure to perform or knows that the contract is affected by the epidemic situation, such as timely notifying the other party and related parties to suspend investment in people, money and materials, negotiating to change the delivery method, extending the delivery period, timely handling of vulnerable and consumable subject matter, etc., so as to prevent the loss of the other party and other related parties from expanding and avoid increasing their own responsibilities. (V) classification assessment 1. Comprehensively review the various types of contract documents that are being performed and comprehensively assess the impact of the epidemic, especially on its own ability to perform and the ability of the counterparty to perform. Assess whether to continue to perform, change or terminate the contract in the light of your own business needs and actual conditions, and avoid a one-size-fits-all approach. 2. For contracts to be signed in the near future, full consideration should be given to the performance of the contract by the epidemic and the control of the epidemic, including but not limited to the time of performance, the policy requirements of local governments, the development trend of the epidemic, the nature of the commodity, the purpose of the transaction, and the possible impact. 3. Taking into account the recurrence of the new crown epidemic, it is recommended that the contract signed after the new crown epidemic should clearly agree on the new crown epidemic and its prevention and control measures as force majeure and assess its impact and consequences, and if it is really impossible to assess, a reasonable exemption clause and a relatively flexible agreement change and termination clause should be set. Attachment: Excerpts from Legal Provisions and Guiding Opinions of the Supreme Court the People's Republic of China Civil Code Article 590: "If one of the parties is unable to perform the contract due to force majeure, it shall be exempted from liability in part or in whole according to the effect of force majeure, unless otherwise provided by law." Article 563: "The parties may terminate the contract under any of the following circumstances: (1) the purpose of the contract cannot be achieved due to force majeure". (I) of the Guiding Opinions of the Supreme People's Court on Several Issues concerning the Proper Trial of Civil Cases Involving the COVID-19 Epidemic 3. properly hear contract dispute cases in accordance with the law. Unless otherwise agreed by the parties, when applying the law, the impact of the epidemic on different regions, different industries and different cases shall be comprehensively considered to accurately grasp the causal relationship between the epidemic or the epidemic prevention and control measures and the failure to perform the contract, and the following rules shall be followed for handling the cases of contract disputes arising from the direct impact of the epidemic or the epidemic prevention and control measures: If the contract cannot be performed as a direct result of the (I) of an epidemic or epidemic prevention and control measures, the provisions of force majeure shall be applied in accordance with the law, and the liability shall be partially or fully exempted according to the extent of the impact of the epidemic or epidemic prevention and control measures. If the parties are responsible for the failure to perform the contract or the expansion of the loss, they shall bear the corresponding liability in accordance with the law. If the parties claim that they have fulfilled their obligation of timely notification due to the epidemic situation or the epidemic prevention and control measures cannot fulfill their contractual obligations, they shall bear the corresponding burden of proof. If the (II) epidemic or epidemic prevention and control measures only lead to difficulties in the performance of the contract, the parties may renegotiate; if they can continue to perform, the people's court shall effectively strengthen the mediation work and actively guide the parties to continue to perform. If the parties request to terminate the contract on the grounds that it is difficult to perform the contract, the people's court shall not support it. If the continued performance of the contract is obviously unfair to a party, and its request to change the period of performance of the contract, the method of performance, the amount of the price, etc., the people's court shall decide whether to support it in the light of the actual circumstances of the case. If, after the contract is changed in accordance with the law, the parties still claim partial or total exemption from liability, the people's court shall not support it. If the purpose of the contract cannot be achieved due to the epidemic or the epidemic prevention and control measures, the people's court shall support the request of the parties to terminate the contract. (II) of the Guiding Opinions of the Supreme People's Court on Several Issues concerning the Proper Trial of Civil Cases Involving the COVID-19 Epidemic Trial of (I) contract cases 1. If the epidemic or epidemic prevention and control measures cause the parties to fail to perform the contract of sale and purchase in accordance with the agreed time limit or the cost of performance increases, the continued performance does not affect the realization of the purpose of the contract, and the parties request the termination of the contract, the people's court shall not support it. If the epidemic situation or epidemic prevention and control measures cause the seller to fail to complete the order or deliver the goods within the agreed time limit, and the buyer's contract purpose cannot be realized by continuing to perform, and the buyer requests to terminate the contract and return the advance payment or deposit that has been paid, the people's court shall support it; if the buyer requests the seller to bear the liability for breach of contract, the people's court shall not support it. 2. If the sales contract can continue to be performed, but the epidemic situation or epidemic prevention and control measures lead to a significant increase in labor, raw materials, logistics and other performance costs, or lead to a substantial price reduction of products, and it is obviously unfair to one party to continue to perform the contract. If the adversely affected party requests to adjust the price, the people's court shall adjust the price according to the actual situation of the case and in accordance with the principle of fairness. If the epidemic or epidemic prevention and control measures cause the seller to fail to deliver in accordance with the agreed time limit, or cause the buyer to fail to pay in accordance with the agreed time limit, and the parties request to change the time limit for performance, the people's court shall, in the light of the actual situation of the case, change the time limit for performance in accordance with the principle of fairness. If the contract has been changed by adjusting the price, changing the time limit for performance, etc., and the parties request the other party to bear the liability for breach of contract, the people's court shall not support it.</关于依法妥善审理涉新冠肺炎疫情民事案件若干问题的指导意见（二）>

2022-04-22

Viewpoint... Analysis of non-litigation solutions that are registered as shareholders, legal representatives, and executives of the company.

The Status Quo and Negative Effects of 1. Impersonation Registration In recent years, in order to optimize the business environment in the market, the company registration authority has continued to promote the reform of the commercial system. The company registration mostly adopts a formal review system, allowing the shareholders of the company to not sign on the spot, but the entrusted agent to submit the materials on their behalf. The company registration authority will register when the submitted materials are complete and conform to the legal form. The simplification of the company registration system, coupled with the low cost of illegality and other reasons, has led to many cases of being falsely registered as company shareholders, legal representatives and senior executives, and the number of falsely registered cases is on the rise. In this regard, the impersonated person is prone to the following risks: (I) conflict with their real career If the impostor or his close relatives are public officials or engaged in other similar occupations, such personnel are often not allowed to work part-time in other companies. After they are falsely registered as shareholders, legal representatives, or senior executives of other companies, it will directly affect Appointment and removal of their positions. In view of the fact that most of the companies involved in the impostor registration are leather bag companies, if the company fails to make tax declaration according to law, the tax department will list the relevant personnel as abnormal personnel, which will directly lead to the restriction of the impostor's normal operation of the company or tax formalities. (II) creditors claim that shareholders are responsible for making up their capital contributions. Article 22 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "When the company's property is insufficient to pay off the debts, the creditor claims that the shareholders who have not paid their capital contributions, and other shareholders or promoters at the time of the establishment of the company If the company is jointly and severally liable for the company's debts within the scope of unpaid capital contributions, the people's court shall support it in accordance with the law". (III) creditors claim liability for shareholder liquidation obligations Article 18 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "Shareholders of a limited liability company, directors and controlling shareholders of a joint stock limited company fail to establish a liquidation group within the statutory time limit to start liquidation, resulting in The company's property is devalued, lost, damaged or lost, and the creditor claims that it is liable for compensation for the company's debts within the scope of the loss caused. The people's court shall support according to law". Analysis on the Difficulties of 2. Solving the Impersonation Registration by Lawsuit In view of the problem of being falsely registered as shareholders, legal representatives and senior executives of the company, some of the impostors choose to take litigation to protect their rights, that is, 1. file a civil lawsuit and request the people's court to confirm that they do not have the qualification of shareholders, or 2. file an administrative lawsuit and request the people's court to cancel the registration administrative act of the company registration authority. If an impostor brings a civil lawsuit, that is, a lawsuit for confirmation of shareholder qualification is filed on the grounds that the intention is not true. Although the defendant cannot provide effective counter-evidence in this case, if the registered company is involved in external debts or other responsibilities, such lawsuits often involve the protection of the reasonable trust interests of bona fide third parties, and the impostor may still bear the corresponding responsibilities of shareholders or senior executives. In addition, even if the court decides that the impersonated person does not have the qualification of shareholder, the company registration authority can only make a change of registration, rather than cancel the registration, which also means that the impersonated person still has the legal qualification of shareholder before, and should still bear the corresponding legal consequences. If an administrative lawsuit is filed by an impostor, the administrative organ claims to cancel the registration on the grounds that the administrative organ has not fulfilled its duty of careful examination when handling the registration. When responding to a lawsuit, the company registration department often submits that it only conducts a formal review of the application materials, and the applicant has promised in writing that the application materials are true and valid. Therefore, unless there are extreme typical situations such as the company registration authority and its staff knowing that the identity of the applicant for registration is not true and submitting false identity information materials, the people's court usually finds that the company registration authority has fulfilled its duty of careful examination, and it is difficult to find the violation of the law and thus revoke the corresponding registration. 3. the way of non-litigation settlement of false registration. In order to solve such problems, the State Administration of Market Supervision and Administration issued the "Guiding Opinions on Revoking the Fraudulent Use of Other People's Identity Information to Obtain Company Registration" (Guo Shi Jian Xin [2019] No. 128) in June 2019. Since then, the Regulations on the Administration of Registration of the People's Republic of China Market Entities and its Implementation Rules, which came into effect on March 1, 2022, have made detailed provisions. (I) legal provisions Article 40 of the Regulations on the Registration of the People's Republic of China Market Entities Where the registration of market entities is obtained by submitting false materials or concealing important facts by other fraudulent means, natural persons, legal persons and other organizations affected by the registration of false market entities may apply to the registration authority for cancellation of the registration of market entities. After accepting the application, the registration authority shall promptly conduct an investigation. If the investigation determines that there is a false market subject registration, the registration authority shall cancel the market subject registration. If the relevant market subjects and personnel are unable to contact or refuse to cooperate, the registration authority may publicize the registration time and registration items of the relevant market subjects to the public through the national enterprise credit information publicity system, and the publicity period is 45 days. If the relevant market subject and its interested parties do not raise any objection during the publicity period, the registration authority may cancel the registration of the market subject. The person directly responsible for the market subject whose registration has been canceled due to the false market subject registration shall not apply for the market subject registration again within 3 years from the date of cancellation of the market subject registration. The registration authority shall publicize it through the national enterprise credit information publicity system. Detailed Rules for the Implementation of the Regulations on the Administration of Registration of the People's Republic of China Market Entities Article 50 the registration authority may, on the basis of the application of the parties concerned or on its own initiative, investigate the acts suspected of submitting false materials or concealing important facts by other fraudulent means to obtain the registration of market entities. Article 51 Natural persons, legal persons and other organizations affected by false registration may apply to the registration authority for cancellation of the registration of market entities. For false registration suspected of fraudulent use of the identity of a natural person, the fraudulent user shall cooperate with the registration authority to verify the identity information through online or offline channels. If the registration authority of the market subject suspected of false registration is changed, the current registration authority shall be responsible for handling the cancellation of registration, and the original registration authority shall assist in the investigation. Article 52 After receiving the application, the registration authority shall make a decision on whether to accept the application within 3 working days and notify the applicant in writing. Under any of the following circumstances, the registration authority may reject the case: (I) false registration of suspected fraudulent use of the identity of a natural person, and the fraudulent use fails to pass the verification of identity information; (II) the market entity suspected of false registration has been canceled, except for the application for cancellation of registration; (III) other cases of inadmissibility according to law. Article 53 After accepting the application, the registration authority shall complete the investigation within three months and make a timely decision to revoke or not to revoke the registration of market entities. If the situation is complicated, it may be extended for 3 months with the approval of the person in charge of the registration authority. During the investigation period, if the relevant market entities and personnel are unable to contact or refuse to cooperate, the registration authority may publicize the registration time, registration items, and contact information of the registration authority of the suspected false registration market entity to the public through the national enterprise credit information publicity system. The publicity period is 45 days. If the relevant market subject and its interested parties do not raise any objection during the publicity period, the registration authority may cancel the registration of the market subject. Article 56 After the registration authority has made a decision to cancel the registration, it shall publicize it to the public through the national enterprise credit information publicity system. (II) specific recommendations To sum up, the author suggests that after the relevant personnel are found to be falsely registered as shareholders, legal representatives and senior executives of the company, they should give priority to non-litigation to solve the relevant problems. According to the relevant laws and regulations, the author has sorted out the relevant operating procedures: 1. After discovering the fact of being falsely registered, the relevant personnel shall promptly report to the police and submit an application for revocation to the registration authority; 2. The registration authority shall verify the identity information of the impostor, and the impostor shall cooperate with the submission of handwriting identification report, alarm record and other evidence; 3. The registration authority conducts an investigation of the person under investigation, the relevant personnel of the company, the registration agent or the interested party; 4. The registration authority solicits opinions from relevant departments such as public security, taxation, finance, human resources and social security; 5. After 45 days of investigation and identification of relevant facts or publicity, the registration authority may revoke the registration of market entities.

2022-04-22

Point of View | Crime and Punishment of Epilepsy Patients Driving on the Road

If you are an epileptic, can you drive a car on the road? The answer is no! According to Article 15 of the regulations on the application and use of motor vehicle driver's license issued by the Ministry of public security, those who have organic heart disease, epilepsy, Meniere's disease, vertigo, hysteria, tremor paralysis, mental illness, dementia and neurological diseases affecting physical activities shall not apply for a motor vehicle driver's license. Epilepsy is a driving taboo disease, normally, epilepsy patients can not drive a vehicle on the road, but if an epilepsy patient drives a vehicle on the road, if unfortunately on the way epilepsy seizures, and caused certain harmful consequences, then whether it constitutes a crime, if it constitutes a crime, and how to punish it? Let's look at four cases first. Brief of the case Case one Liu Moumou obtained a U.S. driver's license while studying abroad in 2017. After returning to China, he applied for a driver's license from the traffic police department on May 9, 2018. Since June 2018, Liu Moumou has been to many hospitals for consultation due to multiple short-term amnesia, general convulsions and other symptoms. During this period, he became ill while driving on November 9, 2018, causing the vehicle to lose control and causing a traffic accident. In December 2018, Liu Moumou was diagnosed with epilepsy. Since then, he has taken medication, but he still has seizures until the incident. At about 19:00 on May 16, 2019, Liu Moumou became ill again while driving out, and the vehicle lost control. First, he crashed into the crowd waiting for the signal light on the safety island in the middle of the intersection, and then crashed into two motor vehicles waiting for the signal light in the opposite direction., Resulting in three deaths, one serious injury, five minor injuries, and two minor injuries, three cars, four electric bicycles, a bicycle and municipal transportation facilities were damaged with a value of 125897 yuan. After the accident, Liu Moumou remained in the car that caused the accident. The owner of the car who was hit came forward to remind him to turn off the engine. Liu Moumou did not respond. After that, Liu Moumou gradually became conscious and got off the bus. He called 120 Emergency Center when reminded by others. Case II 1. At about 11 o'clock on December 5, 2009, Li Mougui had an epileptic seizure while driving an off-road vehicle without a license. The vehicle he was driving lost control and collided with three vehicles successively, and then rushed into the sidewalk on the east side of the road. Damaged electric vehicles and protective fences on the roadside. After identification: Wang Moujia and Yue Mou's human body injuries were minor injuries, and Li Mou's human body injuries were minor injuries, causing a total of 44492.90 yuan in direct economic losses. 2. At about 19:00 on August 11, 2011, Li Mougui drove a car without a license and had an epileptic seizure on the highway. The vehicle he was driving lost control and collided with the middle guardrail of the highway. Defendant Li Mougui lost 85290 yuan for the vehicle he was driving and 8800 yuan for the guardrail fee in the middle of the expressway. 3. At about 15:00 on September 28, 2012, Li Mougui had an epileptic seizure while driving a small passenger car without a license. The vehicle he was driving lost control and collided with three vehicles successively, causing damage to the three vehicles to varying degrees. Passengers Zhang and Pu were injured, and Li Chungui himself was slightly injured. The direct economic loss was identified as 11960 yuan. Case three In 1998, Zuo applied for a motor vehicle driver's license with a permitted driving type A. In February 2012, the left army was diagnosed with epilepsy by the hospital. In July of the same year, when the driver's license was reviewed, he concealed his illness, deceived the public security organs, and renewed his driver's license. In January 2014 he was again hospitalized for epilepsy. At about 15:00 on May 1 of the same year, when Zuo Moujun was driving a car (carrying his wife and brother) on the road in the city, he had a sudden seizure of epilepsy, causing the vehicle to crash into pedestrians due to loss of control, resulting in 4 deaths and 8 people. A major traffic accident with varying degrees of injury. Case four At about 20 o'clock on February 28, 2019, Tian Mouhong was driving a small ordinary passenger car. On the way, an epileptic seizure caused the vehicle to lose control. It successively collided with the bicycle in the riding and the car in the driving, and caused the cyclist to be rescued. The invalid death, the co-passengers of the car were injured, and the three cars were damaged. Question 1: Do the above four epilepsy patients have criminal responsibility in the case? Epilepsy is a type of driving contraindicated disease. According to the regulations, people with epilepsy are not allowed to apply for a driver's license, and those who have applied for a driver's license are not allowed to drive a motor vehicle after determining that they have epilepsy, and should apply for cancellation of the driver's license. The driving qualification and driving behavior of patients with driving contraindications are mainly based on the fact that patients cannot control the onset time and consequences of their own diseases autonomously, and driving motor vehicles on the road is highly dangerous to public safety. Therefore, in terms of the ability to identify the criminal responsibility, the perpetrator of the crime began to start driving the vehicle illegally, so the identification of its criminal responsibility should be based on its ability to identify and control the vehicle when it began to drive illegally, and the perpetrator's illness in the process of committing the crime does not affect the identification of its criminal responsibility. In the above four cases, all the actors have been diagnosed as patients with driving contraindication diseases before the crime. They have normal identification and control ability when driving motor vehicles on the road. They have the ability to understand and choose the results of endangering public safety due to their own diseases at any time. Their ability to identify and control will be weakened or lost due to the onset at any time, which will cause high danger to public safety, it is the result of free choice when it violates the driving taboo, and it shall bear the corresponding criminal responsibility for the occurrence of the result. Referee result The above four cases are all from the public cases of Chinese judicial documents. In case one, the court held that Liu Moumou was not allowed to drive a motor vehicle knowing that he had epilepsy, and when a traffic accident had occurred, he drove a motor vehicle on the road. The seizure caused the vehicle to lose control and collide with pedestrians and vehicles, causing three deaths and eight injuries, and the serious consequences of damage to related vehicles and traffic facilities, his behavior constituted the crime of endangering public security by dangerous means. The court sentenced Liu to 13 years' imprisonment after comprehensively considering Liu's surrender, compensation and understanding, and confession. The court in case 2 held that Li mougui, knowing that he was suffering from epilepsy and was not qualified to drive, still drove a motor vehicle three times, causing two minor injuries, one minor injury, direct economic loss of 44492.90 yuan, vehicle loss of 85290 yuan, loss of 8800 yuan of highway intermediate guardrail fee and damage of multiple vehicles, two bus passengers and direct economic loss of 11960 yuan, His behavior is enough to endanger public safety, it has constituted the crime of endangering public security by dangerous means. Considering the circumstances of his confession and compensation, Liu was sentenced to four years' imprisonment. In case 3, the court held that Zuo Moujun violated traffic and transportation management regulations and caused a major traffic accident that caused 4 deaths and 8 injuries. His behavior constituted a traffic accident crime and was sentenced to seven years in prison. In case 4, the procuratorate prosecuted the crime of endangering public security by dangerous means. After trial, the court held that the crime of endangering public security by dangerous means was an intentional crime, and Tian Mouhong did not have the subjective intention to pursue the result of the crime or allow the result of the crime to occur, which did not meet the constitutive requirements of the crime. Tian Mouhong violated the traffic and transportation management regulations and caused a major accident that caused the death of one person. He should be identified as a traffic accident crime. Based on his confession and compensation understanding, he was sentenced to one year and six months in prison. Question 2: The same epilepsy patients have a traffic accident while driving on the road. Why are the charges different and the penalties are also quite different. Are there different sentences in the same case, or are the facts of the case really different? From the two charges involved in the analysis. The crime of endangering public safety by dangerous means refers to the act of endangering public safety by using other dangerous methods equivalent to the danger of fire prevention, throwing dangerous substances, breaking water and explosion methods. The legal interest violated by this crime is the safety of the lives and property of the unspecified majority, which belongs to the crime of endangering public security. The crime of causing traffic accidents refers to the act of violating traffic and transportation management laws and regulations, resulting in a major traffic accident, causing serious injury or death, or causing heavy losses to public and private property. The crime also has the characteristics of endangering the unspecified majority. Specifically in the above four cases, the perpetrator knew that he had epilepsy, and he also knew that he was not allowed to drive on the road with epilepsy. That is, the perpetrators in the four cases were aware of the violation of traffic rules. However, the crime of endangering public safety in a dangerous way is an intentional crime, that is, the perpetrator knows that he has epilepsy and drives on the road, which may cause harm to the society, but he still drives on the road and allows the result of endangering the society to occur. The crime requires that the perpetrator is subjectively indirect and intentional. The crime of causing traffic accidents is a crime of negligence. The perpetrator violates traffic rules intentionally. He foresees the possible harmful consequences of doing so, but he is too confident and credulous to avoid it. Therefore, in order to find out the reasons for the different sentences in the above four cases, it is necessary to further analyze whether the subjective guilt of the perpetrator is indirect intentional or overconfident negligence. From the actor's subjective guilt analysis. According to the provisions of articles 14 and 15 of the criminal law of our country, it is an intentional crime to know that one's own behavior will have the result of endangering the society, and hope or allow such result to occur, thus constituting a crime. It is a negligent crime to foresee the possible result of one's own behavior that is harmful to the society. If one does not foresee it due to carelessness, or if one has foreseen it and believes it can be avoided, such a result. Among them, it is difficult to accurately distinguish between the intentional crime of allowing the harmful result to occur (indirect intention) and the negligent crime of credulity to avoid (overconfidence). In terms of cognitive factors, the doer knows that his behavior will cause harm to the society. In terms of volitional factors, the doer does not hope and pursue the social result of his behavior, the main difference is that the former is laissez-faire and the latter is opposed. In case one, Liu, as an adult with a higher education level, has normal cognitive ability. His confession knows that he has epilepsy. When the frequency of onset is high, it is once every two or three days, and when it is low, it is once every ten days. When the onset of the disease will suddenly lose consciousness, sometimes hallucinations, auditory hallucinations, there have been traffic accidents before the incident. Judging from Liu Moumou's confession and previous driving experience, Liu Moumou is not sure about the incidence of his forbidden driving disease and knows that he cannot control the consequences of the disease. He argues that he has a fluke mentality to drive, which does not rule out his laissez-faire mentality of resignation to the consequences of his behavior. In case 2, Li Mougui suffered from epilepsy for many years and could not be cured. He drove on the road without a license for many times, and had three seizures while driving without a license and caused accidents. People with common sense of life and driving experience know that epilepsy is a kind of nervous system seizure disease. The symptoms of epilepsy can be manifested as short-term disturbance of consciousness, and severe as systemic muscle twitching and loss of consciousness, which will cause the patient to lose consciousness and behavior ability for a period of time. Epilepsy is sudden, unpredictable and uncontrollable, and the probability of onset is high before it is completely cured. Patients may get sick at any time when driving a motor vehicle on the road, and once they get sick, they will lose control of the motor vehicle. the result of endangering public safety (dangerous or real harm) will be inevitable. Li Mougui knew that he had frequent seizures, and he had a precedent of seizures on the way before, but he still did not learn a lesson, which shows that he subjectively holds a laissez-faire attitude towards the possible harmful consequences. In the third case, Zuo Moujun concealed epilepsy, deceived the review agency, and renewed the motor vehicle driver's license during the motor vehicle driver's license review, which violated administrative regulations. But it has no precedent for driving while driving, and has been taking anti-epileptic drugs. Therefore, in terms of probability, the possibility of Zuo Moujun's sudden epilepsy while driving is very low, and it is not an administrative illegal act that will cause harmful consequences with a high probability. In addition, Zuo Moujun was hospitalized many times before the incident and has been taking antiepileptic drugs. The treatment has achieved certain results. Combined with the precedent that he has never had an epileptic seizure while driving before, he took his wife and brother on this trip. It can be presumed that Zuo Moujun's opposition to the occurrence of harmful results is both objective reality and customary thinking, and subjectively belongs to the fault of overconfidence. In case 4, Tian Mouhong suffered from epilepsy. After a period of hospitalization before the incident, good results have been achieved. When he was discharged from the hospital, the doctor did not require him to take the medicine on time. But out of caution, Tian Mouhong took the medicine every once in a while for a few days. Before this Tian a red drive has never had a seizure. The prosecutor accused Tian Mouhong of "driving after knowing that he had epilepsy that hindered driving qualifications and stopped taking drugs without authorization", but the court held that the case proved that Tian Mouhong knew that he had epilepsy and drove a motor vehicle without authorization. Insufficient evidence, and then believe that Tian Mouhong does not have the subjective intention to pursue the result of the crime or allow the result of the crime to occur, and does not meet the constitutive elements of the crime of endangering public safety by dangerous methods. A number of major criminal cases have occurred in this case due to the onset of driving contraindications. I would like to remind people suffering from driving taboo diseases not to be lucky and blindly confident. Once a traffic accident occurs, it will eventually harm others and themselves.

2022-04-21

Zhongcheng Qingtai. Real estate perspective: the risk of rising material prices in construction projects.

1. issues raised Affected by multiple factors such as rising raw material prices in the international market, domestic and foreign epidemics, and world energy shortages, the price of building materials has risen sharply, which has a significant impact on the performance of construction contracts? 2. relevant referee views (I) the contract stipulates that "market price fluctuations do not adjust the contract price", the contractor shall consider the market environment of construction materials and commercial risk factors such as price changes when bidding or signing a contract. If the price increase of materials does not exceed the peak market price, the principle of change of circumstances is not applicable, and the risk of material price increase shall be borne by the contractor. Case: Chongqing Construction Engineering Group Co., Ltd. and Chongqing Rongchang District Rongxin Environmental Protection Industry Development Co., Ltd. (Supreme People's Court [2019] Supreme Law Minshen No. 5829 Civil Ruling) The court held that the question of whether Article 11.1 of the Special Provisions of the Construction Contract for Construction Projects should be changed. Chongqing Construction Engineering Group believes that in this case, according to the principle of change of circumstances and the relevant provisions of the competent authorities, the part of the price increase of more than 5% should be adjusted to be borne by Rongxin Environmental Protection Company. In the opinion of the Court, Article 11.1 of the Special Terms of the Construction Contract for Construction Projects stipulates that market price fluctuations do not adjust the contract price, I .e. the risk of market price increases is borne by Chongqing Construction Engineering Group. After the contract was signed, the market price did rise due to changes in policy or market environment. However, as a professional and rational construction enterprise, Chongqing Construction Engineering Group submitted a bid to Rongxin Environmental Protection Company after carefully studying all the contents of the bidding documents and comprehensively considering the corresponding commercial risks and cost changes, under the premise of knowing that the project involved in the case is limited to 0.15 billion yuan, it should include the market environment and price changes of building materials as the commercial risk factors that should be considered in whether and how to bid. Article 26 of the (II) of Interpretation of the Supreme People's Court on the Application of Several Issues is a provision on the principle of change of circumstances in contract law. The objective situation emphasized in this article is that the parties cannot foresee at the time of conclusion of the contract and are not non-commercial risks caused by force majeure. Continued performance will be obviously unfair to one party or fail to realize the purpose of the contract, in this case, the increase in the price of construction materials should be a commercial risk that Chongqing Construction Engineering Group should reasonably foresee when bidding and signing the contract, and the increase did not exceed the peak market price, so the provisions of Article 26 of the (II) of Interpretation of the Supreme People's Court on the Application of Certain Issues shall not apply. (II) the contract stipulates that "the contract price will not be adjusted during the construction period", during the construction process, the price of materials will rise due to the adjustment of the national macro policy, and the relevant government departments notify the construction enterprise to make appropriate compensation with reference to the market price at the time of bidding and the price at the time of contract settlement. The notice is not mandatory and cannot be the basis for breaking through the contract. The risk of price increase shall be borne by the contractor. Case: China 13th Metallurgical Construction Co., Ltd. and Shaanxi Huangyan Expressway Co., Ltd. Construction Contract Dispute (Supreme People's Court [2018] Supreme Court Civil Judgment No. 380) The court held that whether the claim of 4154868 yuan for material and freight adjustment by XIII Metallurgical Company should be supported. As for the part of the appraisal opinion that the loss amount of material and freight adjustment is 4154868 yuan, the 13th Metallurgical Company claims that the price of material and freight will rise during the construction period, which belongs to the situation change stipulated by law and should be adjusted. In this case, relative to the total amount of project funds agreed by the parties in the contract, there is no sufficient evidence to prove that the range of changes in the freight prices of self-purchased steel, fuel and self-purchased materials during the construction period has reached a level that the parties could not foresee at the time of the conclusion of the contract, and does not constitute the Supreme People's Court on the application of<中华人民共和国合同法>Article 26 of the (II) for Interpretation of Certain Issues "After the establishment of the contract, the objective circumstances have undergone major changes that the parties could not foresee at the time of the conclusion of the contract and were not caused by force majeure and did not belong to commercial risks. If the parties request the people's court to modify or terminate the contract, the people's court shall, in accordance with the principle of fairness, and in the light of the actual situation of the case to determine whether to change or lift the circumstances of the change of circumstances. The general terms and conditions of the Contract Agreement signed between Huang Yan Company and Thirteen Metallurgical Company 70.1 stipulate that the fluctuation of labor, mechanical construction and material prices shall not be considered during the execution of the contract, I .e. the contract price shall not be adjusted during the construction period. During the construction of this project, due to the increase in steel prices caused by the adjustment of the national macro policy, the Shaanxi Provincial Department of Communications notified that for the construction in progress signed before the end of May 2003, the construction enterprise can be appropriately compensated according to the unit price of the contract and the actual implementation of the contract, referring to the market price at the time of bidding and the price at the time of contract settlement. On January 23, 2010, Huang Yan Company, in accordance with the notice spirit of Shaanxi Provincial Communications Department, decided at a special meeting of Huang Yan Company to compensate for the difference of 1415287.55 yuan in the price of self-purchased section steel in the HY-8 contract section. The first-instance judgment found that XIII Metallurgical Company could not use the notice as the basis to break through the contract and require Huang Yan Company to bear the loss of material price increases. Therefore, the appeal claimed by the 13th Metallurgical Company for Huang Yan Company to pay 4154868 yuan for materials and freight adjustment cannot be established, and the court will not support it. The agreement of the (III) construction contract on the risk of material price fluctuations during the normal construction period does not apply to the adjustment of material payments during the period of delay caused by the contractor, and the risk of material price increase during the period of delay caused by the contractor shall be borne by the contractor. Case: Erdos Municipal Transportation Bureau and Erdos along the Yellow River High-grade Highway Construction and Development Co., Ltd. (Supreme People's Court [2019] Supreme Law Minshen No. 5628 Civil Ruling) The court held that: whether there is a factual basis for the original court's determination that the Transportation Bureau and the company along the Yellow River are responsible for the increase in the price of construction materials and the increase in costs caused by the delay in the construction period. The original trial found that the construction period was delayed due to the transportation bureau and the company along the Yellow River, and the delay also brought about an increase in the cost of engineering materials of the top five companies. The original trial court found that the transportation bureau and the company along the Yellow River were responsible for the increase in the price and cost of construction materials caused by the delay in the construction period, which is based on facts. In addition, although the Bidding Document provides an agreement on the risk of material price fluctuation during the normal construction period, the agreement does not apply to the adjustment of material payment during the delay of the construction period caused by the Employer. It is obviously against fairness and logic to adjust the expansion of losses caused by unilateral breach of contract by the reasonable risk burden agreement that both parties can expect; the Transportation Bureau and Yanhuang Company have no evidence to prove that they have paid the materials in full to the actual constructor or contractor before the construction period is delayed due to their own reasons. The one-time full payment is not in line with the trading habits of the construction industry. The Transportation Bureau and Yanhuang Company claim that they should not bear the increased cost of materials caused by the delay in the construction period on the grounds that they have already paid the materials, which has no factual basis. (IV) the construction contract stipulates that the settlement shall be based on the facts, and if both the contractor and the contractor are at fault for the extension of the construction period, they shall each bear the fault liability in proportion to the loss of the material increase. Case: Jinan Changxing Construction Group Co., Ltd. and Zibo Yinuo Real Estate Development Co., Ltd. Dispute over Construction Contract (Shandong Higher People's Court [2020] Lu Min Zhong No. 2563 Civil Judgment) The court held that: on the issue of whether the first instance court's determination of the loss of material rise is correct. ...... During the construction of the project involved in the case, Yino Company had the problem of defaulting on the project payment, and Changxing Company also had the problem of insufficient construction personnel and mid-way exit. Both parties were at fault for the increase in materials caused by the delay of the project involved in the case, and the court of first instance found that both parties were each responsible for 50% of the loss of the increase in materials, which was in line with the actual project involved in the case. (V) the construction contract stipulates that the price of materials increases by a certain percentage and can be adjusted according to the facts, if the contractor can provide evidence, the contractor may request the contractor to bear the burden. Case: Dispute over Construction Contract between Shandong Liaojian Group Co., Ltd. and Shandong Liaocheng Zhongjusaida Real Estate Development Co., Ltd. (Shandong Higher People's Court [2014] Lu Min Yizong Zi No. 50 Civil Judgment) The court held that the settlement report submitted by Liaojian Group Company was in accordance with the contract. According to the provisions of Articles 23.2 and 23.3 of the special terms of the contract, the price of construction materials in the contract price involved can be adjusted according to the facts if the price increases by more than 5%. The policy adjustment documents and relevant regulations during the construction period can be applied. In the process of contract performance in 2010 and 2011, labor and material costs increased significantly, and the government made policy adjustments to labor costs. The adjustment of the actual labor and material costs in the settlement report of Liaojian Group Company has a contractual basis as well as a factual basis. Although the bidding documents stipulate that the construction measure fee will be covered in one lump sum and will not be adjusted during settlement, as the labor and material fees stipulated in the contract can be adjusted according to the facts, the increase in labor and material fees directly affects the measure fee. Under the condition that the labor and material fees can be adjusted according to the facts, the measure fee cannot be covered in one lump sum and should be adjusted accordingly during settlement. In the process of contract performance, Zhongju Saida Company subcontracted a large number of projects, the failure to pay the project progress payment in time leads to the extension of the construction period, increasing the measure cost and labor cost; in the case of fundamental changes in the construction market, only the actual adjustment can ensure that the measure fee is not lower than the cost, that is to say, the settlement report adjusts the measure fee, which has factual basis and contract basis. 3. Summary 1, material prices rise is the result of the law of the market, generally does not belong to the situation change. Article 533 of the Civil Code of the People's Republic of China stipulates that "after the establishment of the contract, the basic conditions of the contract have undergone major changes that the parties could not foresee at the time of the conclusion of the contract and do not belong to commercial risks. If the continued performance of the contract is obviously unfair to one of the parties, the adversely affected party may renegotiate with the other party. If the negotiation fails within a reasonable period of time, the parties may request the people's court or the arbitration institution to modify or terminate the contract. The people's court or arbitration institution shall, in the light of the actual circumstances of the case, modify or terminate the contract in accordance with the principle of fairness." The application of this article requires a strict distinction between changes in circumstances and commercial risks, which are inherent in the conduct of commercial activities, such as changes in supply and demand, price increases and decreases that have not yet reached an abnormal level of change, and risks inherent in non-market systems that the parties could not foresee at the time of contracting. The Notice of the Supreme People's Court on the Interpretation of Several Issues Concerning the Correct Application of the the People's Republic of China Contract Law (II) Serving the Overall Work of the Party and the State clearly stipulates that the court should correctly understand and carefully apply the change of situation. If it really needs to be applied in a case, it should be reviewed by the Higher People's Court and reported to the Supreme People's Court for review when necessary. 2. In the case of a commercial risk, the assumption of the risk depends on the agreement of the construction contract and the construction facts. If the price of materials fluctuates during the construction period in a fixed lump sum contract or the contract stipulates that the contract price is not adjusted, and there is no delay in the construction period due to the employer, the risk shall be borne by the contractor; if the construction period is delayed due to the employer and the price of materials rises during the construction period, the contractor shall provide evidence to prove that the risk of material price rising during the construction period delay shall be borne by the employer; if both the employer and the contractor are at fault for the contractor, the risk of material price increase during the delay of the construction period shall be borne by both parties in proportion to the degree of fault, and if the contract price can be adjusted according to the facts after the material price increases as stipulated in the construction contract, the contractor shall provide evidence to claim to the contractor. 4. Risk Alert Our lawyers believe that the construction period of the construction project is long and there are indeed many uncertain factors. Under the current situation that most of the construction contracts are fixed total price contracts or fixed comprehensive unit price contracts, the employer should carefully perform its contractual obligations to avoid the risk of unnecessary losses due to the delay of the construction period caused by its own actions. In the face of the payment of the project funds beyond the contract stipulated by the contractor due to the increase in material prices, it can have a benign communication with the contractor, the Contractor shall fully consider the possible risks in the contract performance during the bidding stage or contract signing stage, and reasonably determine the contract quotation to deal with the risks caused by the increase of material prices during the construction process, during the construction process, the contractor can strengthen the management of visa claims, and actively communicate with the contractor when the price of the main materials rises sharply, and strive to make a supplementary agreement on the sharing of the costs arising from the increase in the price of materials.</中华人民共和国合同法>

2022-04-21

Viewpoint | From the perspective of property service people to see the "Jinan City Property Management Regulations" provisions of the principles of community autonomy management.

The Standing Committee of Jinan Municipal People's Congress just issued the "Jinan City Property Management Regulations" (hereinafter referred to as the regulations) on March 30, 2022, which will come into force on May 1, 2022. As the saying goes, every family has a difficult book to read. A residential community is composed of every household, especially in the autonomous management and property services of the community, it is difficult to read and do things. The regulations promulgated this time set out "rules" for the autonomous management of the community, and gave a solution to the contradiction between the property service person and the owner. While setting new regulations and breaking difficult problems, property service providers should pay more attention to the provisions of the regulations on community management regulations and rules of procedure of the owners' assembly, so as to avoid omissions in the community management regulations and rules of procedure of the owners' assembly, which will affect the signing of property service contracts and generate business risks for property service providers. The principle of autonomous management of 1. communities should be reflected in the rules of procedure for the decisions of the owners' assembly and need not be regulated in the interim management statute or management statute. Paragraph 6 of Article 22 of the regulations stipulates that whether the voting rights of owners who do not participate in voting are included in the majority of votes already voted shall be stipulated by the temporary management statute or the management statute. The author believes that there are the following problems: Statistics on the number of (I) voting rights are not matters stipulated in the interim management statute or management statute. According to Article 17 of the State Council's "Property Management Regulations", "The management regulations shall have an impact on the use, maintenance and management of the property concerned, the common interests of the owners, and the obligations that the owners shall perform, the responsibilities and other matters that should be undertaken in violation of the management regulations shall be agreed in accordance with the law", Article 18 "The rules of procedure of the owners' meeting shall stipulate the discussion methods, voting procedures, the composition of the owners' committee and the term of office of the members of the owners' meeting" and Article 22 "The construction unit shall formulate temporary management regulations before selling the property to use, maintain and manage the property and the common interests of the owners, the obligations that the owners should perform, the responsibilities that should be assumed in violation of the provisional management statute and other matters shall be agreed upon in accordance with the law, and whether the voting rights are included in the majority of the votes that have been voted shall fall within the scope of the adjustment of the rules of procedure of the owners' meeting, rather than by the provisional management statute or the management statute. At the same time, the "Property Management Regulations" did not make corresponding provisions on "voting rights statistics. The (II) is inconsistent with the "Guiding Rules for Owners' Assembly and Owners' Committee" issued by the Ministry of Housing and Urban-Rural Development [2009] No. 274. The second paragraph of Article 26 of the "Guiding Rules for the Owners' Assembly and the Owners' Committee" stipulates that "Whether the voting rights of the owners who have not participated in the voting can be included in the majority of the voted votes shall be stipulated by the management regulations or the rules of procedure of the owners' assembly." This is obviously a general clause, but it is still valid at present and does not violate the State Council's "Property Management Regulations." The (III) "Shandong Province Property Management Regulations" was revised on December 3, 2021, and directly deleted the provisions on voting rights statistics. The second paragraph of Article 34 of the original "Shandong Province Property Management Regulations" implemented on May 1, 2009 once stipulated that "whether the voting rights of owners who do not participate in voting are included in the majority of votes already voted shall be stipulated by the management statute or the temporary management statute". However, after the regulation was revised on December 3, 2021, it directly deleted "whether the voting rights of owners who do not participate in voting are included in the majority of votes already voted, provided for by the Management Statute or the Interim Management Statute". (IV) of whether to provide for "voting rights statistics", the practice varies from place to place, but there is no provision for "by the interim management statute or management statute". Article 278 of the Civil Code clearly stipulates the legal proportion of owners' participation in voting on matters decided jointly, and does not stipulate the statistics of voting rights. Compared with the property management regulations in Beijing, Shanghai, Guangzhou, Shenzhen and other places, there is no provision for voting rights statistics. Regarding the provisions of voting rights statistics, the author believes that its role is to ensure the smooth progress of the voting procedures of the owners' meeting, and to prevent the occurrence of matters that must be voted by the owners' meeting but do not reach the statutory voting ratio, and fall into a long-term dilemma, which harms the owners. rights and interests. However, it is also clear that it is necessary for localities to take into account local conditions and to be regulated in detail by local regulations. In summary, the author believes that appropriate additions and adjustments should be made to improve the regulations: 1. In order to ensure that the Jinan property Management regulations comply with the relevant provisions of the the People's Republic of China Civil Code, the property Management regulations, the guiding rules of the owners' Congress and the owners' Committee and the property Management regulations of Shandong Province, it is suggested that the sixth paragraph of Article 22 of the regulations be amended as follows: if the meeting of the owners' assembly involves matters jointly decided by the owners, the voting votes shall be delivered to each owner. The voting shall be conducted in accordance with the provisions of Articles 18, 19 and 20 of these Regulations. Whether the voting rights of the owners who do not participate in the voting shall be included in the majority of votes voted shall be stipulated by the rules of procedure of the owners' meeting. 2. For residential communities that have not established a general meeting of owners, the property service providers in the early stage strengthened their contacts with sub-district offices, neighborhood committees, and construction units, and put forward reasonable suggestions for the draft temporary management regulations of the community and the draft rules of procedure of the general meeting of owners of the community, and added "voting rights" "Statistics" clause. 3, for the establishment of the owners' meeting of the residential community, see the selected property service personnel should focus on understanding the community management regulations and the rules of procedure of the owners' meeting. For those who do not agree on the "voting rights statistics" clause, put forward reasonable suggestions to the owners' committee, increase the topic content of the owners' meeting, improve the rules of procedure of the owners' meeting "voting rights statistics", and vote whether to agree with the property service provider to provide services to the community.

2022-04-18

Viewpoint | Effective Defense ---- Doubts not to prosecute

Doubt not to prosecute, also known as insufficient evidence not to prosecute. In a fraud case handled by the author, the procuratorial organ strictly controlled the evidence and did not prosecute the case for insufficient evidence-that is, no prosecution in doubt. 1. brief After investigation, it was found that 11 people, including Liu Moumou and Wang Moumou, premeditated to purchase waste aluminum plates from a certain color printing company. They cheated the color printing company by tampering with the weighbridge and agreed to share the stolen money equally among 11 people. On December 20, 2019, 11 people including Liu Moumou drove to the vicinity of the color printing company, and Liu Moumou went to the color printing company to discuss the purchase of waste aluminum plates. After negotiation, the purchase price was 18000 yuan per ton. The next day, Liu Moumou came to pull the goods. Liu Moumou and his three men went to the weighing place near the color printing company and agreed with the weighbridge owner to give the weighbridge owner 4000 yuan a benefit fee. The weighbridge owner agreed that they should install cheating equipment on the weighbridge electronic display. The next day to the color printing company after loading to the weighbridge weighing. When weighing, Wang Moumou and others used the remote control to control the electronic display of the weighbridge, weighing 8 tons, and should pay 144000 yuan for the goods. Liu Moumou and others asked for cash payment. The color printing company asked for the goods to be deposited into the company's account. The company accountant accompanied Liu Moumou and others to deposit in the bank. During this period, Liu Moumou and others urged the truck driver to leave as soon as possible. The truck driver drove not far away and was intercepted by the color printing company. At 13: 00 on the same day, the color printing company took the truck driver to the weighing place to weigh. Wang mou used the remote controller to control the weighing scale again, and the weighing was still about 8 tons. after the weighing was completed, the color printing company still refused to let the truck driver drive away. Liu and others worried about the incident fled the scene. On the third day, it was re-weighed, showing that the weight of the goods in the car was 24.44 tons, and the difference between the two days was 16.44 tons. According to the price determination center, the market recovery price of waste aluminum plates was 9000 yuan per ton. Therefore, it was determined that the amount of fraud by Liu Moumou and others was 75960 yuan. According to the personnel of the color printing company, Liu Moumou and others bought waste aluminum plates from the color printing company before. Because Liu Moumou and others were suspected of cheating in weighing, the color printing company has been trying to settle accounts with Liu Moumou and others. This time Liu Moumou and others contacted again. The color printing company wanted to quietly use this transaction to expose Liu Moumou and others and recover the losses. Therefore, the above transaction process was established. After the case, Liu and others reached a compensation understanding agreement with the injured unit with several times the amount of compensation involved. To sum up, it is determined that the behavior of 11 people including Liu Moumou has violated Article 266 of the the People's Republic of China Criminal Law, suspected of fraud, and transferred for review and prosecution. 2. processing results Liu Moumou, who was not prosecuted, did not meet the conditions for prosecution. According to the provisions of Article 175, paragraph 4, of the Criminal Procedure Law, it was decided not to prosecute Liu Moumou. 3. case analysis The defender pointed out that the "Prosecution Opinion" found that 11 people including Liu Moumou had defrauded 75960 yuan, and the facts of the crime amount were unclear and the evidence was insufficient. The weight of the goods involved is in doubt, and there is great uncertainty in the determination of the amount of crime. The investigation organ in this case weighed the difference between December 21, 2019 and December 22, 2019 as the number of crimes. However, the evidence in the volume cannot prove that the goods involved in the case maintained identity and fixity in multiple weighings, and cannot guarantee the certainty of the calculation of the amount involved when the weight difference cannot be confirmed to be certain. The testimony of the employees of the color printing company and the truck driver both confirmed that after the truck driver was intercepted and returned to the color printing company on December 21, 2019, the truck driver stopped for dinner, during which the vehicle involved was placed in the courtyard of the color printing company, and the rear truck driver parked the vehicle in front of the office building of the color printing company under the supervision of the staff of the color printing company. until the morning of December 22, 2019, 2019, the vehicle and goods involved were weighed for the third time. Therefore, from December 21, 2019 when the truck driver went out to eat to the morning of December 22, 2019, the vehicles and goods involved in the case were parked in the hospital of the victimized company and were left unattended. The color printing company did not provide surveillance video to confirm the storage of the vehicles and goods involved in the case. Although two employees confirmed that the goods in the vehicle had not been moved, there was no objective evidence to support it. In addition, the two witnesses are employees of the victimized company and have an interest in the case. Their testimony is highly subjective, and their objectivity and authenticity are in doubt. Therefore, the facts of the determination of the amount of the crime are unclear and the evidence is insufficient. If reasonable doubt cannot be ruled out, the evidence is in doubt, and an explanation should be made in favor of the defendant. It is suggested that Liu Moumou should not be prosecuted. 4. the legal provisions of "no prosecution in doubt" Doubt not to prosecute means that the procuratorial organ may make a decision not to prosecute if it still considers that the evidence is insufficient and does not meet the conditions for prosecution after supplementary investigation. Article 175, paragraph 4, of the Criminal procedure Law stipulates that if the people's Procuratorate still considers that the evidence is insufficient and does not meet the conditions for prosecution for the second supplementary investigation, it shall make a decision not to prosecute. After two supplementary investigations, the case has one of the following circumstances. If it cannot be determined that the criminal suspect constitutes a crime and needs to be investigated for criminal responsibility, it is insufficient evidence and does not meet the conditions for prosecution. 1. The evidence based on which the verdict is in doubt and cannot be verified. 2. The facts of the constituent elements of the crime lack the necessary evidence to prove it. Contradictions between the evidences cannot be reasonably excluded. 4. The conclusion based on the evidence has other possibilities and cannot be ruled out.

2022-04-18

How to identify the use of obscene videos to solicit customers to sell products?

Brief of the case During the period from September 26, 2017 to March 27, 2018, in order to promote the male health products operated by his WeChat circle of friends, Zhang Moumou successively established WeChat chat groups named "XXX Leisure Entertainment Group 1 (Group Plus Group Leader)", "XXX Leisure Entertainment Group 2 (Group Plus Group Leader)" and "XXX Leisure Entertainment Group 3 Group Plus Group Leader/No Words. Later, in order to increase his popularity, Zhang Moumou forwarded obscene videos and links in the group. After identification, 400 videos forwarded by Zhang moumou in "group 1 of so-and-so leisure entertainment (group 1 plus group owner)" are obscene articles, 344 videos forwarded in "group 2 of so-and-so leisure entertainment (group 2 plus group owner)" are obscene articles, and 341 videos forwarded in "group 3 of so-and-so leisure entertainment plus group owner/forbidden words" are obscene articles. After the case, the procuratorate of first instance prosecuted the case to the court on suspicion of spreading obscene materials for profit. After trial, the court of first instance held that Zhang was not subjectively profit-making, so his behavior did not constitute the crime of spreading obscene materials for profit, but constituted the crime of spreading obscene materials. Zhang was sentenced to one year and six months in prison. After the judgment of the first instance, the procuratorate filed a protest, believing that the purpose of profit-making required by the crime of spreading obscene articles includes not only direct profit-making through the dissemination of obscene articles themselves, but also indirect profit-making by means of the dissemination of obscene articles. Therefore, the defendant Zhang Qiuying subjectively has the purpose of making profits and should be recognized as the crime of spreading obscene articles for profit. The original judgment made improper restrictive interpretation of "profit, it is wrong to apply the law and the sentence is too light. The facts and evidence found by the court of second instance were the same as those of the court of first instance, but it adopted the protest opinion of the procuratorate and commuted Zhang to the crime of spreading obscene materials for profit, sentenced to three years' imprisonment and fined 5000 yuan. Focus Issues Zhang Moumou's use of obscene materials to attract customers and promote products can be recognized as the crime of spreading obscene materials for profit. legal analysis The main difference between the crime of spreading obscene materials for profit and the crime of spreading obscene materials is that the former requires the purpose of making profits, while the latter does not. In this case, in order to attract customers and sell male health products, Zhang Moumou posted obscene video links in the WeChat group. Regarding this behavior of using obscene materials to promote legal products, whether it constitutes the crime of spreading obscene materials for profit or the crime of spreading obscene materials, in judicial practice There is controversy. In the cases retrieved by the author, some courts have determined that this kind of behavior belongs to commercial drainage, and the intention is to increase attention. The act of spreading obscene videos does not bring benefits to the perpetrator, so it does not meet the crime of spreading obscene materials for profit. The standard of "profit-making. Judgments that hold this view are: jiang mouyang's case of spreading obscene articles [case number (2019) Zhejiang 0624 punishment no 211], Xiang mourong's case of spreading obscene articles [case number (2018) Zhejiang 0523 punishment no 191], Xie moujia, Liu mou's case of spreading obscene articles [case number (2017) Ji 1181 punishment no 71], Jiang moujuan's case of spreading obscene articles [case number (2018) Zhejiang 0881 no. 238 at the beginning of punishment]]. However, some courts hold that the "profit-making purpose" in the crime of spreading obscene materials includes not only the direct profit by spreading obscene materials, but also the indirect profit by means of spreading obscene materials. The dissemination of obscene materials by the perpetrator is a means to increase product attention and promote products. It is an indirect profit by means of disseminating obscene materials. In addition to this view held by the court of second instance in this case, Zhang moujuan, Zhang mouzhu and others also held this view in the case of making, copying, publishing, selling and spreading obscene articles for profit [case number (2019) zhe 10 punishment final 753]. The author believes that the actor uses obscene materials to attract customers and then sell products, which can not be regarded as the "profit-making" plot in the crime of spreading obscene materials for profit, but can only constitute the crime of spreading obscene materials. The specific reasons are as follows: The use of obscene videos by 1. to attract customers and then sell products for profit does not belong to the situation of using the Internet to spread obscene materials for profit as stipulated in legislation and judicial interpretations. The crime of obscene materials corrupts the social atmosphere, corrupts people's soul, and induces other crimes. Therefore, the criminal law of our country has been increasing its crackdown. Article 170 of the 1979 Criminal Law stipulates that "whoever produces or sells pornographic books or paintings for the purpose of profit shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and may also be fined". At that time, the crime of this article was the crime of making and selling obscene books and paintings. The law did not provide for the production and sale of obscene materials other than obscene books and paintings, and other acts related to obscene materials. Article 2 of the Decision of the Standing Committee of the National People's Congress on Punishing Criminals Who Smuggling, Producing, Selling or Disseminating Obscene Articles (hereinafter referred to as the Decision) of December 28, 1990 stipulates: Whoever, for the purpose of making profits, ...... sells obscene articles shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be sentenced to a fine or confiscation of property. Article 8 of the "Decision" defines obscene materials as "books, periodicals, films, video tapes, audio tapes, pictures and other obscene materials that specifically depict sexual behavior or explicitly promote pornography". The "Decision" changed the object of the crime of making and selling pornographic books and paintings in Article 170 of the 1979 Criminal Law from the original pornographic books and paintings to obscene books, films, video tapes, audio tapes, pictures or other obscene materials. The statutory maximum penalty has also been increased from the original three-year fixed-term imprisonment to life imprisonment, and the provisions on unit crimes have been increased, which has greatly increased the punishment for such crimes. On the basis of the comprehensive absorption of the "Decision" in the Criminal Law of 1997, a crime of organizing obscene performances was added, which also demonstrated the determination of our government to punish the crime of obscene materials. However, in 1997, the criminal law did not specify the standard of "profit-making" when amending the criminal object and sentence of the crime of spreading obscene materials for profit. Until 2004, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases Using the Internet, Mobile Communication Terminals, and Voice Stations to Make, Copy, Publish, Sell, and Disseminate Obscene Electronic Information" (hereinafter referred to as "Interpretation"). Article 1 of the "Interpretation" clearly stipulates: "For the purpose of making profits, those who use the Internet or mobile communication terminals to produce, copy, publish, sell and disseminate obscene electronic information, publish, sell and disseminate obscene electronic information by means of membership system, with more than 200 registered members, or use obscene electronic information to collect advertising fees, membership registration fees or other fees, with illegal gains of more than 10000 yuan, Convicted and punished for the crime of making, copying, publishing, selling or disseminating obscene articles for profit." This provision confirms at the level of judicial interpretation that the dissemination of obscene electronic information for profit includes both direct and indirect profit-making. Among them, direct profit-making means that as long as the perpetrator completes the crime of spreading obscene materials, he can directly obtain illegal profits. The specific manifestations are as follows: first, the perpetrator directly disseminates obscene electronic information through the website to obtain high network fees or short message fees; second, the user registers to join the obscene website and becomes a member through payment to watch or obtain obscene information. Indirect profit-making means that after the perpetrator has completed the criminal act of spreading obscene materials, it is necessary for the perpetrator or a third party to carry out other acts in order to obtain profits. Indirect profit-making is a newer and more popular way of making profits, mainly by providing free obscene information files to attract network users, increase the click-through rate of the website, and improve the popularity of the website, so as to attract advertisers and obtain high advertising fees. Different from the traditional direct profit-making method, the benefits obtained by indirect profit-making do not come directly from obscene materials, but from commercial advertising revenue paid by third parties. The spread of obscene materials plays a role in promoting the generation of benefits. In this case, Zhang Moumou posted obscene video links in multiple WeChat groups he formed, with the intention of increasing popularity and increasing attention to the male health products he sold, thereby creating business opportunities for the sale of legal products and increasing the probability of transactions. The behavior itself did not directly charge the members of the group, nor did it earn high advertising fees. The key to Zhang's profit is the profit from the sale of male health products, which is obviously different from the profit-making method identified in the 2004 interpretation. 2., according to the principle of adaptation of crime, responsibility and punishment, Zhang's behavior should not be identified as the crime of spreading obscene materials for profit. According to the provisions of Article 364 of the Criminal Law, those who spread obscene materials shall be sentenced to a maximum of two years' imprisonment without a fine. As for the crime of spreading obscene materials for profit, because it has the subjective purpose of "making profits", the social harmfulness of its behavior is obviously greater than that of simple communication, and the criminal law has obviously cracked down on it. According to the provisions of Article 363 of the Criminal Law, the legal maximum penalty for the crime of spreading obscene materials for profit can be up to life imprisonment, and at the same time a fine or confiscation of property. It can be seen that whether a certain act of spreading obscene materials can be recognized as having a profit-making purpose becomes the key to determine what kind of crime and what kind of legal punishment is applicable. In this case, Zhang Moumou's use of obscene materials to solicit customers to sell products does not belong to the profit-making situation expressly stipulated in the 2004 Interpretation. Whether it can be recognized as other indirect profit-making methods requires the judge to conduct justice on the "profit-making" plot. Interpretation. According to the requirements of the principle of adaptation of crime and punishment, when we interpret the terms of a crime, we need to consider the statutory penalty stipulated in the law and the severity of the sentence that may eventually be pronounced according to this law, so that the conclusion of the interpretation conforms to the principle of adaptation of crime and punishment. The crime of spreading obscene materials for profit is only because it needs to be "for profit" in the constituent elements, and the statutory penalty is far more important than the crime of spreading obscene materials. For this reason, we should strictly interpret the "profit-making" plot, so as to exclude those minor acts of spreading obscene materials for indirect profit from the crime. The modesty of criminal law is one of its fundamental principles, and penalties can only be used if they are forced to do so, and those who can use lighter penalties should not be sentenced to heavier penalties. Judging from the provisions of the "Interpretation" in 2004, the "profit-making" of the dissemination of obscene materials on the Internet mainly includes two ways: directly charging service fees for the dissemination of obscene materials, and indirectly earning high advertising fees through websites or web pages. Either way, the interests obtained by the perpetrator come from the obscene electronic information or the act of spreading obscene electronic information itself. There is a direct and inevitable causal relationship between the way of making profits and the act of spreading obscene electronic information. In this case, Zhang Moumou, as a micro-trader, set up a WeChat group to continuously add people to the group and publish obscene video links in the WeChat group for group members to browse. The purpose is to expand the audience of the goods sold, increase trading opportunities and increase the sales volume of the goods. In other words, Zhang's publication of obscene materials in WeChat groups does not necessarily lead to an increase in the sales of male health products he sells. Zhang's final benefit comes from the male health products sold, not the obscene materials themselves or the act of spreading obscene materials. There is no direct and inevitable causal relationship between this profit-making method and the act of spreading obscene materials. In addition, in the 1. second instance of this case, the public prosecution organ did not provide evidence to confirm Zhang's actual profit. However, Zhang Moumou used obscene materials in the WeChat group to solicit customers to sell products. The court of first instance found that it constituted the crime of spreading obscene materials and sentenced him to one year and six months. The court of second instance adopted the protest opinion of the procuratorate and held that it constituted the crime of spreading obscene materials for profit, and sentenced Zhang to three years' imprisonment and a fine of 5000 yuan. The different determinations of the same facts by the court of first and second instance made Zhang's sentence very different, which obviously violated the principle of adaptation of crime, responsibility and punishment and the modesty of criminal law. Therefore, the author believes that in the case of Zhang Moumou using obscene videos to solicit customers to promote products, the court of first instance determined that the behavior only constituted the crime of spreading obscene materials. The facts were found to be correct and the applicable law was accurate. Zhang Moumou's judgment on the court of first instance It is also recognized. The court of second instance adopted the protest opinion of the procuratorate to change the crime, believing that Zhang's behavior was an indirect profit-making situation, and then found him guilty of the crime of spreading obscene materials for profit, and sentenced him to three years' imprisonment and a fine of 5000 yuan. The judgment thinking and determination logic of the court of second instance are obviously contrary to the spirit of the 2004 Interpretation, and also violate the principle of consistency of crime, responsibility and punishment and the principle of modesty of punishment, which is an error in the application of law.

2022-04-18