Viewpoint | Examining employee claims in bankruptcy proceedings

Abstract: Through the inquiry of Weike's first judgment documents, there have been more than 6000 cases of disputes over the confirmation of employees' bankruptcy claims in the past three years. It can be seen that employees' awareness of protecting their own rights and interests has increased significantly. The protection of employees' creditor's rights in the enterprise bankruptcy procedure is not only related to the survival interests of the employees themselves, but also related to the harmony and stability of the whole society. In practice, employees are often in a weak position in labor relations. Before filing for bankruptcy, many bankrupt enterprises have been in arrears with employees' wages for a long time. For the vast majority of employees, wages and other remuneration are the main source of their family support and survival. Therefore, whether it is based on the protection of workers' rights and interests, or based on the smooth development of bankruptcy work, should pay attention to the examination and confirmation of workers' claims, this paper combined with the handling of bankruptcy cases, the scope of workers' claims and confirmation to do a brief analysis and summary, only for your reference. Keywords: enterprise bankruptcy; employee claims; review and confirmation An overview of the scope of 1. employee claims. The relevant point of view to (I) the scope of the employee's claim. Liu Ziping pointed out in the Study on the System of Bankruptcy Claims Confirmation Litigation (Application of the Law, No. 10, 2007) that the subject matter of labor claims confirmation litigation is legal labor claims. An expansive interpretation of "wages" should be adopted. "Economic compensation" should be subdivided into two categories, namely, the economic compensation payable for the termination and termination of the labor contract relationship and the compensation payable for wage arrears. Wang Xinxin and Yang Tao believe in the "Research on the Protection System of Creditor's Rights of Bankrupt Enterprises" ("Research on the Rule of Law", Issue 1, 2013) that the scope of employee's claims should be clarified through judicial interpretation and appropriately expanded. On the other hand, the requests made by employees in the creditor's rights confirmation litigation involve some claims that are not clear enough in legislation. These claims should be considered for inclusion in the scope of employee's claims. Chen Guobin and Chen Hao pointed out in "Interpretation and Reshaping of Priority of Creditor's Rights in Bankrupt Enterprises" (People's Justice, No. 16, 2020) that at present, the judicial practice does not have a unified understanding of the subject and scope of employee's rights protection, and the listing provisions of the bankruptcy law on employee's rights are also difficult to meet the actual needs, resulting in all kinds of creditors in bankruptcy cases reporting their claims in the form of employee's claims, resulting in free-riding phenomenon, the interests of other creditors have been seriously affected by the fact that many claims are based on workers' claims and priority is given to fishing from "public fish ponds" with limited resources. The Liaoning Provincial High Court pointed out in the research report of "Balancing the Interests of Bankrupt Enterprises and Properly Handling Labor Dispute Cases" that the claims of employees in labor disputes caused by bankruptcy have changed from single claims to multiple claims. The demands of employees for their own rights protection are more comprehensive, which is not consistent with the scope of the law. Most of the views discussed above support the appropriate expansion of the scope of employee claims, and the inclusion of claims for which legislation is unclear should be considered. The actual scope of the claims of (II) employees. According to Article 48 of the the People's Republic of China Enterprise Bankruptcy Law (hereinafter referred to as the Enterprise Bankruptcy Law), "...... the wages and medical, disability and pension expenses owed by the debtor to the employee, the basic old-age insurance and basic medical insurance expenses that should be transferred to the employee's personal account, as well as the compensation that should be paid to the employee according to laws and administrative regulations, do not have to be declared, but shall be listed and publicized by the administrator after investigation......." The scope of employee claims mainly includes wages, medical, disability subsidies, pension expenses, as well as social security expenses and compensation that should be included in the employee's personal account. Articles 57 and 58 of the Provisions on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases [Fa Shi (2002) No. 23]: The labor remuneration owed by the debtor to informal workers (including short-term workers) and the fund-raising funds owed to enterprise employees shall be paid off according to the order stipulated in Item (I) of Paragraph 2 of Article 37 of the Enterprise Bankruptcy Law (referring to the trial bankruptcy law), which is actually included in the first order of settlement. Specific as follows: 1. Wages according to article 4 of the "regulations of the state bureau of statistics on the composition of total wages, wages of employees include hourly wages, piece-rate wages, bonuses, allowances and subsidies, overtime wages, wages paid under special circumstances (wages paid according to the hourly wage standard or a certain proportion of the hourly wage standard due to illness, work-related injury, maternity leave, family planning leave, marriage and funeral leave, personal leave, family visit leave, regular leave, work stoppage, implementation of state or social obligations, etc.). Other types of "wages" that do not fall under the provisions of this article: (1) In the case of general arrears of wages before the bankruptcy of the enterprise, the part of the directors, supervisors and senior managers higher than the average wage of the employees of the enterprise may be paid off as ordinary claims. The legal basis is to cite Article 113 of the the People's Republic of China Enterprise Bankruptcy Law and the Supreme People's Court on the application of<中华人民共和国企业破产法>The provisions of article 24 of the (II) on certain issues. (2) The "double wage difference" arising from the failure to sign a written labor contract does not fall within the scope of this article. According to the provisions of Article 3 of the Summary (III) of the Symposium on the Application of Law in Labor Dispute Cases by Chongqing High Court and Other Six Departments, the employer has not concluded a written labor contract or an open-term labor contract with the employee in accordance with the law, and the employee requires The double wage difference paid by the employer is punitive in nature and belongs to compensatory expenses, not labor remuneration, therefore, for the non-signed labor contract two times the wage difference should not be included in the employee's claim to pay off. (3) Wages incurred under special circumstances, such as certification fees. Due to operational needs, enterprises often look for some special certificate holders attached to the enterprise, between the two sides of the useless work facts, the holder did not actually work in the affiliated company, monthly or annual from the affiliated enterprise to collect a certain fee, the fee is reflected in the daily payroll. The author thinks that although this part of the cost is reflected in the enterprise payroll, it is actually a certificate fee and should not be included in the employee's claim for settlement. The reason why the enterprise bankruptcy law lists the workers' creditor's rights as the priority to be paid is that the wages of workers are the remuneration that workers exchange for labor, which is the basic guarantee for the survival of workers, and the licensing fees of the licensed personnel are not the labor consideration in exchange, and are not the important income on which they depend for survival, so it is not appropriate to include such fees in the workers' creditor's rights for settlement. (4) Performance bonus is a kind of incentive salary given to employees by enterprises, and its amount is linked to the performance of employees. In some industries, such as real estate, insurance sales and other enterprises, the amount of performance pay of employees is relatively large, then whether part of the performance pay belongs to the creditor's rights of employees is a question. In practice, judges generally believe that the reason why wages in the bankruptcy law are recognized as having priority is based on the fact that workers pay their own labor value and obtain equal returns, which reflects the protection of vulnerable groups of employees, and the payment of performance bonuses is often based on On the basis of the company's profits, it should not be classified as employee claims with priority. 2. Medical, disability compensation and pension expenses. (1) Medical expenses, generally refers to the loss caused by the failure of the enterprise to participate in medical insurance for the employees, which is caused by the failure of the enterprise to participate in the insurance according to law, and shall be borne by the enterprise itself and included in the employee's creditor's rights for settlement; (2) Disability compensation expenses, commonly include medical, disability, and employment subsidies caused by employees' work-related injuries (except for the part of the fund reimbursement under normal insurance conditions); (3) Pension expenses generally refer to the funeral expenses and one-time death pension of employees not caused by work-related death (under normal insurance conditions, paid by the social security fund). 3. Social security costs According to the provisions of the "the People's Republic of China Social Insurance Law", social insurance premiums are jointly paid by employers and employees, of which the individual payment is included in the personal account, the employer's payment is included in the social pooling account, and the part included in the personal account is included in the employee's claims for statistics. In addition, the enterprise did not participate in unemployment insurance for its employees in accordance with the law, resulting in the inability of employees to enjoy unemployment insurance benefits after unemployment. Therefore, the compensation for unemployment insurance losses caused by unemployment insurance also belongs to social security benefits and should be included in the scope of employee claims. 4. Compensation "Compensation that shall be paid to employees as stipulated by laws and administrative regulations" refers to the economic compensation and compensation for the termination of labor contracts stipulated in the the People's Republic of China Labor Law and the the People's Republic of China Labor Contract Law (hereinafter referred to as the "Labor Contract Law") (only refers to the compensation arising from the illegal termination of the labor contract). 5. Employee claims and housing provident funds advanced by third parties Article 27 of the Minutes of the National Court Bankruptcy Trial Work Conference stipulates that employee claims advanced by third parties shall, in principle, be carried out in accordance with the nature of the employee claims advanced. The housing provident fund owed by the debtor shall be paid off in accordance with the nature of the wages owed by the debtor. 6. Funds raised by employees For employee fund-raising claims that occurred before the implementation of the Enterprise Bankruptcy Law on June 1, 2007, they were determined in accordance with the law at that time and in accordance with the nature of the employee's claims; for employee fund-raising claims that occurred after the implementation of the Enterprise Bankruptcy Law on June 1, 2007, they are generally treated as ordinary claims. Recognition of claims of 2. employees Article 48 of the Enterprise Bankruptcy Law stipulates that employee claims do not have to be declared, and the administrator shall make a list and make it public after investigation. If the employee has any objection to the list, he or she may request the administrator to correct it. If the administrator refuses to make corrections, the employee may file a lawsuit in the people's court. The author mainly analyzes the confirmation of employee claims through the qualitative and amount of employment legal relationship. Confirmation of (I) employment legal relationship 1. Labor relations In accordance with the provisions of Articles 7 and 10 of the Labor Contract Law and Articles 1 and 2 of the Notice on Matters Relating to the Establishment of Labor Relations (No. 12 [2005] of the Ministry of Labor and Social Affairs), the examination of whether there is a labor relationship between a worker and a bankrupt enterprise shall be conducted in a combination of formal examination and substantive examination. (1) Formal review. Under the condition that the information is very complete, it is reviewed from the aspects of labor contract signing, social insurance participation, personal tax payment, attendance records, salary distribution records, company personnel files, employment documents, etc. (2) Substantive examination. Review whether there are actual employment facts, whether the employment time is long-term and stable, whether the work content of the laborer is part of the employer's business, and whether it is restricted by the employer's labor management and rules and regulations. The above substance can be verified from the transcripts of inquiries made by the managers or other workers of the bankrupt enterprise. The author handled a bankruptcy case, in order to find out the actual situation of employees, the production of employee claims registration form, and each employee to make interview transcripts, through the manager's preliminary investigation materials and employee interview transcripts to confirm each other, to confirm the true labor relationship of employees. 2. Labor relations Due to the diversification of employment forms, there are labor employment in many enterprises, especially in real estate development enterprises, where employment is not standardized, and there are many temporary employment and employment of retirees. (1) Temporary employment. Enterprises on a certain stage of a non-company business components of the temporary recruitment of some people for timing or piece-rate employment, due to the short time, flexible employment, that is, the use of the settlement, both sides have no long-term establishment of employment relationship of the intention, generally will not sign a written employment contract, such personnel are generally identified as labor. (2) Recruiting persons who have enjoyed old-age insurance benefits or received pensions in accordance with the law. According to Article 44 of the Labor Contract Law and Article 7 of the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases, the labor relationship of persons who begin to enjoy pension insurance benefits or receive pensions in accordance with the law The legal termination, the employment relationship established by the employer recruiting such personnel is the labor relationship. 3. Other special employment relationships In the related fields of construction and mining enterprises, there are a large number of labor subjects called migrant workers. This kind of personnel has large mobility, uncertain labor cycle and no labor contract. The labor subject is generally a natural person and does not have the qualification of labor subject. According to Article 4 of the Notice on Matters Related to the Establishment of Labor Relations (No. 12, 2005 issued by the Ministry of Labor and Social Affairs), the employer with the qualification of the main body of employment shall bear the main responsibility of employment, and the main responsibility of employment here generally includes the scope of labor remuneration, work injury, etc. Recognition of the amount of claims of (II) employees 1. Wages (1) Confirmation of wage standards. It is mainly confirmed according to the enterprise labor contract, but in practice, many enterprises agree that the salary is the minimum base for paying social insurance or lower, but the actual salary is much higher than the contract agreement. Therefore, the manager also needs to check the salary table in the company's financial documents over the years for verification, and finally confirm the salary standard in combination with the employee's personal statement. The salary standard can also be confirmed by referring to the average salary issued by the audit company in the normal year. If the bankrupt enterprise stops work and stops production, Article 12 of the Interim Provisions on wage payment stipulates that if the unit stops work or stops production within a wage payment cycle due to the reasons of the workers, the employer shall pay the wages of the workers according to the standards stipulated in the labor contract. If more than one wage payment cycle, if the worker provides normal labor, the labor remuneration paid to the worker shall not be lower than the local minimum wage standard; if the worker does not provide normal labor, it shall be handled in accordance with the relevant provisions of the State. Article 58 of the Circular on Several Issues Concerning the Implementation of the the People's Republic of China Labor Law stipulates that enterprises shall pay their living expenses for laid-off workers in accordance with the relevant provisions of the local government, and the living expenses may be lower than the minimum wage standard. If laid-off workers are re-employed, the enterprise shall stop paying their living expenses. With reference to the above provisions, in the case of workers who do not provide normal labor, the bankrupt enterprise shall pay the basic living expenses of the employees. (2) The confirmation of the amount of unpaid wages is mainly through consulting the company's financial documents, making inquiry records to the person in charge of the enterprise and other employees, or consulting the employee petition registration form through the labor department, and combining with the employee's personal statement, confirming the period and amount of unpaid wages of the bankrupt enterprise, and also referring to the audit report of the audit institution on the unpaid wages of the employees. 2. Medical, disability compensation and pension expenses. The common types of such claims include work-related injury insurance benefits, non-work-related injury benefits and medical insurance losses caused by not participating in medical insurance, and the amount of the above-mentioned claims can be determined through the employees' active declaration, the manager's inquiry of the enterprise's financial documents, litigation documents and the personnel director of the enterprise. 3. Social security costs Inquire about the insurance details of the unit in the social security collection agency where the enterprise is located, and notify the collection agency where the enterprise is located to declare the outstanding social security claims if there is any arrears. The outstanding payment details submitted by the social security department will include the total amount of social insurance premiums owed by the unit, and the detailed amount will reflect the amount owed by the individual account. The social security of bankrupt enterprises is generally declared by the social security department, but in practice, for the reorganization of enterprises, this paper proposes to set aside all the social security fees that need to be paid, not declared in advance, according.</中华人民共和国企业破产法>

2021-11-29

Viewpoint | Rule of Law: The Fundamental Path of Restrictions on the Employment of Bad Artists

近年来，一些艺人逃税、吸毒、嫖娼等违法现象屡屡见诸报端，其中不乏知名甚至著名艺人，如2021年轰动一时的郑某、吴某凡、李某迪等，引发社会广泛关注。在大力倡导“德艺双馨”的同时，我国有关部门也对劣迹艺人做出了从业限制等处罚，取得了一定震慑效果。不过，这些措施也引发一些争议，且实施效果一般，未能从根本上遏制高发的艺人劣迹行为现象。笔者认为，在我国正大力加强文化领域立法的背景下，需要从法治化角度进一步思考劣迹艺人从业限制的路径，运用法治思维破解这一难题。   当前劣迹艺人从业限制存在的问题   截止目前，我国有关主管机关针对劣迹艺人所制定的一般性从业限制规范性文件，涉及整个文娱行业，集中于广播电影电视以及互联网等媒体，特别注重从播放端“封杀”劣迹艺人。虽然这些规定“既准又狠”，但在法治视角下，仍至少存在如下问题。   （一）仅以内容与特定主体相关的播放限制做法与我国现行法律法规不符   我国广播电影电视领域法律法规一直采取针对“内容”而非“主体”的播放规制方式。例如，《广播电视管理条例》第32条对“禁播内容”做了列举式表述：“危害国家的统一、主权和领土完整的”“危害国家的安全、荣誉和利益的”“煽动民族分裂，破坏民族团结的”“泄露国家秘密的”“诽谤、侮辱他人的”“宣扬淫秽、迷信或者渲染暴力的”“法律、行政法规规定禁止的其他内容”。《电影产业促进法》第16条及《电影管理条例》第25条也规定了类似的“禁播内容”。也就是说，禁播对象是特定的违禁内容而非与违法主体相关联的内容，而目前有关主管机关的“禁播”“封杀”规定针对的却均是有劣迹艺人参与的内容，至于内容本身是否属于《广播电视管理条例》《电影产业促进法》《电影管理条例》等“禁播内容”则在所不问。例如，广受关注的《国家新闻出版广电总局办公厅关于加强有关广播电视节目、影视剧和网络视听节目制作传播管理的通知》（新广电办发[2014]100号）第一条规定：“各级广播电视播出机构要坚持正确导向，不得邀请有吸毒、嫖娼等违法犯罪行为者参与制作广播电视节目；不得制作、播出以炒作演艺人员、名人明星等的违法犯罪行为为看点、噱头的广播电视节目；暂停播出有吸毒、嫖娼等违法犯罪行为者作为主创人员参与制作的电影、电视剧、各类广播电视节目以及代言的广告节目。”上述规定明显仅以节目与劣迹艺人存在关联性作为禁播标准，与前述法律法规的禁播标准不一致，缺乏法律依据。   （二）未能平衡处理从业限制与工作权的关系   2021年10月12日，因曾吸毒被取消演出的民谣歌手宋冬野发长文为自己抱屈，称当初吸毒也是因为压力大而被诱惑，自己现在只是在做本职工作，不应该被剥夺合理合法工作的权利。宋冬野的言论涉及一个重要的法律问题：如何平衡处理劣迹艺人从业限制与工作权的关系？ 一般来说，工作权既是人们获取生存、生活资料的重要人权，又是保障人们得以参与社会的权利配置。正因如此，工作权作为国际社会公认的人权，体现在诸多国际人权公约之中，也在各国宪法中被普遍予以承认。我国现行宪法第42条规定了劳动权，即工作权。工作权不是纯粹的经济权而同时属于社会权。在自主就业权、公平报酬权、劳动保护权以及不受歧视权等四项具体权能中，与本文所讨论的劣迹艺人从业限制关联度最高的当属不受歧视权。具体来说，在就业歧视中，存在一种较少受关注的前科歧视，即歧视受过违纪、违法和犯罪处罚的劳动者，且仅仅是因为有违纪、违法、犯罪记录而拒绝录用劳动者。我国目前尚无专门的犯罪前科消除法，但在一些法律中已经有保护劳动者不受歧视权的规定，例如《禁毒法》第52条规定：“戒毒人员在入学、就业、享受社会保障等方面不受歧视。有关部门、组织和人员应当在入学、就业、享受社会保障等方面对戒毒人员给予必要的指导和帮助。”第70条还规定了违反第52条的法律责任：“有关单位及其工作人员在入学、就业、享受社会保障等方面歧视戒毒人员的，由教育行政部门、劳动行政部门责令改正；给当事人造成损失的，依法承担赔偿责任。”某些地方性禁毒条例虽然规定了劣迹艺人从业限制，但也只是限于一定期限。例如，2016年4月1日施行的《上海市禁毒条例》第14条规定：“广播影视、文艺团体及相关单位依照国家有关规定，不得邀请因吸毒行为被公安机关查处未满三年或者尚未戒除毒瘾的人员作为主创人员参与制作广播电视节目，或者举办、参与文艺演出；对前述人员作为主创人员参与制作的电影、电视剧、广播电视节目以及代言的商业广告节目，不予播出。” 2018年1月1日施行的《山东省禁毒条例》第31条也有类似规定。   从我国有关主管机关对劣迹艺人从业限制规定来看，基本未提及劣迹艺人（尤其是已接受过相关法律处罚后的劣迹艺人）的工作权保障。例如，上述《通知》中的“不得”以及模糊化的“暂停”等表述，又如《国家广播电视总局办公厅关于进一步加强文艺节目及其人员管理的通知》（广电办发〔2021〕267号）中的“坚决抵制违法失德人员”等表述，均实际上取消了劣迹艺人继续从事本行业的工作机会。此种缺乏平衡从业限制与工作权关系的规定，未能顾及尚有教育挽回余地的大多数劣迹艺人的必要工作权，不利于其在一定禁业期限后回归社会。   （三）缺乏对“劣迹艺人”的准确界定   我国有关主管机关对劣迹艺人从业限制规范性文件中，对何为“艺人”多采取一般描述方式，例如前述国家新闻出版广电总局《通知》中采用了“编剧、导演、演员等广播影视从业人员”的表述，缺乏准确界定，特别是未明确是否包括“经纪人”这一重要主体，给后续处罚造成了困难。同时，对更为重要的何为“劣迹”也缺乏精准界定。前述《通知》仅列举了“吸毒、嫖娼等违法行为”，而中央宣传部2021年9月印发《关于开展文娱领域综合治理工作的通知》则将“劣迹”大为扩展，包括“天价片酬、‘阴阳合同’、偷逃税、违法言行”等违法行为，还包括“低俗信息炒作、政治素养不高、法律意识淡薄、道德观念滑坡、失德言行”等失德行为。由于“艺人”“劣迹行为”缺乏统一的标准，可能导致执法的随意性和选择性，出现背离法治化规制目的的倾向。   （四）对劣迹艺人仅存在“出口”上的规制   我国《营业性演出管理条例》仅设立了演出经纪人的从业资格制，未设立演出行业演艺人员资格制（仅规定个体演艺人员须持有《演员个人营业性演出许可证》）。从业资格制使得我国对演出经纪人的管理基本实现了从“入口”到“出口”的全过程监管，有效提升了监管力度和效果。由于我国尚未设立演艺人员资格制，无法从“入口”做好监管，加大了后期监管难度，尤其使得“出口”面临较大监管压力。近年来艺人劣迹行为现象屡禁不止，与演艺人员资格制的缺失不无关系。   （五）相关规定层次低、表述简单且未处理好他律与自律措施的关系   当前，除仅有极少数条款涉及劣迹艺人从业限制的《营业性演出管理条例》外，现行有效的主管机关关于劣迹艺人从业限制规范性文件多以“通知”形式呈现，例如前述国家新闻出版广电总局2014年与中宣部2021年的《通知》以及文旅部2021年9月下发的《文化和旅游部关于规范演出经纪行为加强演员管理促进演出市场健康有序发展的通知》（文旅市场发〔2021〕101号）。这些“通知”层次低，表述原则、简单，多为应急之策，难以充分实现对劣迹艺人从业限制的法治化。   与此同时，我国一些演艺行业协会制定了若干自律性质的行业规范，例如中国演出行业协会（以下简称“中国演协”）2021年2月5日发布并于3月1日执行的《演出行业演艺人员从业自律管理办法》。关于劣迹艺人从业限制，该《办法》规定了期限不等的“联合抵制制度”，不同于有关主管机关不附期限的“封杀”。如何处理好主管机关的“他律”与行业协会的“自律”，也是一个需要亟待解决的问题。   二、劣迹艺人从业限制的法治化路径建议   （一）严格限定艺人及劣迹行为   艺人，即演艺人员，《营业性演出管理条例》将其称为演员。从所属行业来看，艺人应专职或兼职从属于演出行业，演出包括现场演出和非现场演出（如网上演出），而不包括仅从属于体育行业的名人、明星或仅从属于播音主持行业的播音员、主持人等未兼职从事演出行业工作的人。同时，适当限制可以纳入从业限制范畴的艺人范畴，可以参考现行有关法律法规所采用的“主创人员”这一表述。主创人员即在演出中占据主要角色或发挥主要作用的艺人，一般包括主演、主持人、嘉宾、制片、编剧、导演等人员。另外，对于与主创人员存在经纪法律关系的经纪人也应纳入从业限制人员范围。   关于劣迹行为，建议采用“违反从业规范”这一法律术语。对于可以进行从业限制的行为，建议只将违法行为及严重失德行为纳入而不宜将一般性的违反道德行为纳入。具体可以表述为：“艺人应遵守从业规范，不得有下列行为：（一）故意犯罪并受到刑事处罚的；（二）索取或收取明显高于行业同等岗位一般艺人10倍及以上报酬的；（三）为获得不当利益就同一事项签订两份或多份合同的；（四）违反法律规定逃税的；（五）卖淫或嫖娼的；（六）利用互联网从事色情淫秽表演的；（七）为获得关注而故意低俗炒作，情节严重的；（八）针对公共事务发表严重不当言论，情节严重的；（九）生活腐化，道德沦丧，影响恶劣的；（十）其他违法或严重失德行为。”   （二）妥善处理从业限制与工作权的关系   劣迹艺人从业限制法治化的核心问题是解决好从业限制与工作权的关系。艺人劣迹不同，对其从业限制不同，相应的工作权保障也不同。除实体保障外，还应提供听证、复议、行政诉讼等程序保障。笔者建议，参考前述地方性法规以及中国演协的自律性规定，可将从业限制表述为：“违反从业规范的艺人从事本行业的工作权应依法受到限制”“根据艺人违反从业规范情节轻重及影响后果不同，主管部门可以对其实施1年、3年、5年、10年以及终生等不同期限的行业禁入，法律或行政法规另有规定的除外。”“艺人参与的节目、代言的广告等任何形式内容，所有媒体在其行业禁入期内均不得播放。”“主管部门拟决定对违反从业规范的艺人实施行业禁入的，可以召开听证会；拟决定实施5年及以上行业禁入的，应当召开听证会。”“艺人对主管部门实施的行业禁入不服的，可以向上一级主管机关申请复议或者向实施行业禁入的主管机关所在地人民法院提起行政诉讼。”   （三）可考虑设置艺人从业资格制   如前文所述，《营业性演出管理条例》及配套的《演出经纪人员管理办法》建立了演出经纪人从业资格制。笔者建议，为实现对艺人的全链条管理，可考虑建立艺人从业资格制，解决当前只能在“出口”加以管理的不足。具体来说，可参考《演出经纪人员管理办法》等相关规定，制定《艺人从业资格管理办法》，详细规定“艺人从业资格基本条件”“艺人从业资格考试”“艺人从业资格证书”“艺人从业资格证书年审、补办及更换”“艺人从业资格证书注销”“法律责任”等问题。   （四）以法律或行政法规形式尽快立法   我国宣传文化领域法律法规的立改废释工作正紧锣密鼓进行中，业已取得了不小成绩。当前，以人民为中心，围绕社会关注热点，通过立法解决劣迹艺人从业限制的问题已经迫在眉睫。在立法层级上，建议先行通过行政法规形式予以单独立法，条件成熟后再由全国人大制定法律。由国务院制定行政法规，可解决文娱行业关涉多个主管部门的难题，亦有利于规范标准和执法尺度。对于正在制定中的文化领域法律，应做好指引性条款的设计，做到既不遗漏又可统一。例如，正在征求意见中的《广播电视法》注意到了目前仅因与劣迹艺人相关而对内容限制播放无法可依的问题，于第32条规定：“广播电视节目主创人员因违反相关法律、法规而造成不良社会影响的，国务院广播电视主管部门可以对有关节目的播放予以必要的限制。”按照上述立法协调性原则，建议补充规定：“……必要的限制，法律或行政法规另有规定的，从其规定。”   三、结语   中央宣传部《关于开展文娱领域综合治理工作的通知》可谓再次吹响了清理整治文娱行业的号角。按照《通知》要求，以劣迹艺人从业限制为重要抓手，以存在的主要问题为化解导向，运用法律思维，使用法律工具，走法治化路径，是破解

2021-11-29

Viewpoint | The manifestation and judicial practice of "interest deduction in advance"

Reading Guidance The pre-deduction of interest in private lending is also known as "cut-off interest", "discount loan" and "tap", which means that in private lending, the lender deducts all or part of the interest from the principal in advance. It is unfair for the borrower to pay interest on the loan before using the loan, how does the law stipulate this? Is the judicial decision the result? Legal basis Article 670 of the Civil Code, interest on borrowings may not be deducted in advance from the principal. If the interest is deducted from the principal in advance, the loan shall be returned and the interest shall be calculated according to the actual amount of the loan. Article 26 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (as amended for the second time in 2020), the amount of the loan stated in the creditor's rights documents such as IOUs, receipts and IOUs is generally recognized as principal. Where interest is deducted from the principal in advance, the people's court shall recognize the amount actually lent as principal. The ruling rule established by the Supreme Court in this regard is that if interest is deducted in advance from the principal, the amount actually lent shall be recognized as the principal and the interest shall be calculated accordingly. Related Cases Case one [Case Brief] On May 3, 2018, the defendant Li Mou offered to borrow 400000 yuan from the plaintiff due to the need of capital operation. The defendant Li Mou issued an iou to the plaintiff on the same day, which stated: "I borrowed 400,000 yuan in cash from a certain bank today, with a loan period of one year and an interest rate of 10000 yuan/month (monthly interest of 10,000 yuan only). According to this, the loan period is one year, from May 3, 2018 to May 2, 2019. Today, the borrower is Li Mou. May 3, 2018." The next day, the plaintiff transferred 400000 yuan to the defendant Li's bank account. Later, due to the need for funds raised by the defendant Li mou, he proposed to borrow another year from the plaintiff, and the plaintiff agreed. Defendant Li then stated behind the aforementioned IOU: "Voluntary extension for one year, from May 2, 2019 to May 2, 2020." On November 5, 2018, the defendant Li mou proposed to borrow 400000 yuan from the plaintiff due to the need of capital turnover. the plaintiff transferred 400000 yuan to the defendant Li mou's bank account on the same day. the defendant issued an iou to the plaintiff the next day, which stated: "today, I borrowed 400,000 yuan (400000 yuan) in cash for one year, from November 6, 2018 to November 5, 2019, with interest of 12,000 yuan per month. According to this, the borrower today: Li mou. November 6, 2018." [Summary of the Decision] This Court believes that the legitimate lending relationship between citizens is protected by law. The relationship between the original and the defendant's claims and debts is clear, and the parties shall fully perform their obligations in accordance with the agreement. For this loan on November 6, 2018. Article 200 of the the People's Republic of China Contract Law stipulates that interest on a loan may not be deducted in advance from the principal. If the interest is deducted from the principal in advance, the loan shall be returned and the interest shall be calculated according to the actual amount of the loan. In this case, the plaintiff actually provided the defendant with a loan of 400000 yuan on November 5, 2018, but the defendant Li paid the plaintiff one-month interest of 12000 yuan in advance on the same day, which was of a nature that the interest was deducted from the principal in advance. Therefore, the plaintiff actually provided the loan principal of 388000 yuan. Because the plaintiff and the defendant Li agreed that the monthly interest rate of the loan was 12000 yuan, which was actually 3%, and the defendant Li had already paid it, the plaintiff did not need to return the interest that had been paid at 3% of the monthly interest rate, and the excess should be deemed as returning the principal of the loan. Since the defendant Li Mou transferred the interest 12000 yuan to the plaintiff WeChat on December 5, 2018, which exceeded the interest 11640 yuan (388000 yuan * 3%) that he should have paid, the excess 360 yuan should be deemed as the repayment of the loan principal, that is, on December 5, 2018, the defendant Li Mou still owed the plaintiff the loan principal 387640 yuan (388000 yuan -360 yuan). For the subsequent borrowing period, the monthly excess of interest is recognized as the repayment of the principal of the loan, and so on. Case II [Brief introduction of the case] Zhang and Song are husband and wife; Tang and Ji are friends. There are a lot of economic exchanges between them and many civil lawsuits are involved. In order to purchase the 1201 room, under the introduction of Ji, Zhang and Song made a loan request to Tang. On March 26, 2019, Tang (lender, mortgagee) and Zhang and Song (Party B as co-borrower and Party C as co-mortgagee) signed the "Personal Loan Mortgage Contract". Party A provides loans to Party B for the purpose of Party B's purchase of a house. Party C knows and agrees to all the terms of the contract and signs the contract voluntarily, voluntarily mortgage the house under Zhang's name and the house to be purchased to Party A as a guarantee for Party B to repay the loan under the contract; The parties agree that the loan amount under the contract is 3500000 yuan, and the remittance handling fee shall be borne by Party B. The actual loan amount shall be subject to the debit note or bank transfer certificate. Party C shall bear the guarantee responsibility if any one of Party B signs the debit note, the above-mentioned loan of 3500000 yuan is remitted from the bank account under Tang's name. Once the transfer is successful, the above-mentioned loan is deemed to have been withdrawn and used by the borrower. The parties agree that the loan period is from March 26, 2019 to April 25, 2019. If the actual loan date does not match the date in the contract, the actual loan date shall prevail, but the total number of loan days will remain unchanged. The loan period is one period on the 10th and the cost is 1% of 1% of the loan amount; the lender's lending method is to pay by online bank transfer, the parties confirm that Party B borrowed a total of 3500000 yuan, the loan for Party B to buy a house, the borrower may not be used for other purposes. [Summary of the Referee] The "Personal Loan Mortgage Contract" signed by the lender Tang and the borrower Zhang and Song is the true intention of both parties. There is no statutory invalidity and it is legal and valid. Both parties should fully perform themselves in accordance with the agreement. Obligations. For the case of borrowing, although Tang to Zhang a transfer remittance of 3500000 yuan, but on the same day and through the season to Tang a prepaid interest of 35000 yuan, according to the the People's Republic of China Contract Law, Article 200: "the interest of the loan shall not be deducted in advance in the principal. Interest deducted in advance in the principal, should be in accordance with the actual amount of borrowing to return the loan and calculate the interest." Also according to Article 27 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (effective since September 1, 2015): "The amount of the loan stated in the debt documents such as IOUs, receipts and IOUs shall be generally recognized as principal. Where interest is deducted from the principal in advance, the people's court shall recognize the amount actually lent as principal." Therefore, the above-mentioned 35000 yuan is beheaded interest, should be deducted from the principal of the loan, after accounting, Tang a actual loan principal of 3465000 yuan. [Comment] The lender's act of deducting all or part of the interest from the principal in advance when providing funds will not be protected by law. In judicial practice, the court calculates the interest according to the amount actually lent by the lender, and does not determine the principal of the loan simply according to the amount stated in the creditor's rights documents such as debit notes. But it is worth noting that the borrower needs to bear the burden of proof for the fact that the beheading interest was paid. form of expression In certain financial lending disputes, there are cases in which a portion of the fee is deducted in advance from the principal of the loan or the borrower is otherwise required to pay a certain fee, mostly in the name of financial advisory fees and advisory service fees. So, will financial advisory fees, advisory service fees, etc. be recognized by the people's court as beheading interest? Case three [Case Brief] Trust Company A and Company B signed the Trust Loan Contract and Debt Repayment Agreement on November 25, 2016, and signed the Financial Advisor Agreement on November 28, 2016 three days later. Trust Company A issued the first loan of 0.7205 billion yuan on November 29, 2016, and Company B paid 40665000 yuan of financial advisor fees to Trust Company A on December 1, 2016. [Summary of the Judgment] The Supreme People's Court held that the time interval between the signing of the Financial Adviser Agreement and the signing of the Trust Loan Contract involved in the case was tight, and that the loan issuance and the payment of the financial adviser's fees were crossed, showing a high degree of involvement with the Trust Loan Contract. In a dispute over a financial loan contract, if the borrower believes that the financial institution charges interest in disguise in the name of service fees, etc., and the relevant fees charged by the financial institution or the person designated by it are unreasonable, the people's court may determine whether the borrower should pay or reduce the relevant fees according to the actual situation of the service provided. In this case, when Company B claims that Trust Company A collects "beheading interest" in disguised form in the name of financial consulting fees, with reference to the provisions of the Notice of the General Office of the National Development and Reform Commission on Issuing the Enforcement Guidelines for the Charging Behavior of Commercial Banks (No. 1408 [2016] of the Development and Reform Office), Trust Company A should provide the remuneration that is consistent with 40.665 million yuan, financial advisory services with targeted, substantive and original content bear the burden of proof. According to the agreement in Article 1 of the Financial Advisory Agreement signed by both parties, Trust Company A shall provide Company B with the following financial advisory services: provide financial advisory scheme and planning and financial consultation for the financial management of Company B; Provide financial consultation, policy and regulation consultation related to industry and industry information for Company B; After Company B selects the financial advisory plan of Trust Company A, relevant work arrangements shall be made, assist Company B to complete related work. As Trust Company A failed to submit evidence to prove that it has provided financial advisory services that meet the above agreed requirements, the Court determined that the 40.665 million yuan advisory fee it collected belongs to interest collected in disguised form. According to the spirit stipulated in Article 200 of the the People's Republic of China Contract Law, it shall be deducted from the loan principal according to law. The corresponding interest, compound interest and penalty interest shall also be re-determined based on the adjusted principal. Case four [Case Brief] On July 13, 2015, Company A and Company B, Company C, Xue Mou and Qi Mou signed the "Cooperation Agreement on" Entrusted Loan of Company B "Project" Agreement stipulating that Company A shall issue entrusted loans to Company B through commercial banks, Company A shall provide consulting services for Company B, and Company B shall pay financial consulting fees, etc. July 13, 2015, September 22, 2015, November 11, 2015, August 26, 2016 B company as a borrower and a bank as a lender signed the "entrusted loan loan loan contract". Company A and Company B signed the "Financial Advisory Service Agreement" on May 4, 2015, agreeing that Company A will provide financial advisory services to Company B. The service period is from the date of signing the agreement to Company B's issuance of a "Confirmation Letter" confirming the termination of the financial advisory service and not exceeding July 31, 2015. The financial consultant fee is 8 million yuan, company B shall pay to the designated account within 5 working days from the date of the seal of the Confirmation. On July 6, 2015, Company B issued a "Confirmation Letter" to Company A, confirming that Company A has completed the financial consulting service as agreed and provided Company B with services such as financing consulting, financing planning and financing transaction structure design. The financial consulting service is terminated. At the same time, it promises to pay 8 million yuan for service to Company A within 5 days from the date of signing this Confirmation. [Summary of the Decision] Regarding the outstanding principal of the loan involved in the case. Company B claims that it and Company A have never formed an agreement on providing financial advisory services, and Company A has never provided any financial advisory services to it. 8 million yuan of the first 60 million yuan loan involved in the case was transferred to Company A on the sixth day of the loan, that is, July 23, 2015, which belongs to the beheading interest collected by Company A, according to Article 27 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, "the amount of the loan stated in the debt documents such as IOUs, receipts and IOUs is generally recognized as principal. The 8 million is equivalent to the disguised pre-deduction of interest in the principal, and the people's court shall recognize the amount actually lent as principal", and the 8 million yuan shall not be recognized as principal, so the principal of the loan still owed shall be 92 million yuan. The Supreme People's Court believes that Company A and Company B had signed the Financial Advisory Service Agreement before the loan involved in the case on May 4, 2015, and the agreement agreed on the service content and service fee of 8 million yuan. Company B then issued a "Confirmation Letter" on July 6, 2015, approving that Company A had provided financial advisory services as agreed and promising to pay 8 million yuan service fee within 5 days from the date of confirmation. On the one hand, Company B recognizes the authenticity of the Financial Advisory Service Agreement and the Confirmation Letter, and on the other hand, it has not submitted evidence to prove the claim that 8 million yuan belongs to the beheading interest. According to Article 2 of the Provisions of the Supreme People's Court on Evidence in Civil Proceedings, "the parties have the responsibility to provide evidence to prove the facts on which their claims are based or the facts on which the other party's claims are refuted. If there is no evidence or evidence is not sufficient to prove the party's claim of fact, the party with the burden of proof shall bear the adverse consequences", and Company B shall bear the legal consequences of the failure of the proof, so the defense claim that the amount of principal owed shall be deducted from the 8 million is not supported. [Comment] From the above cases, it can be seen that if the financial advisory fee is collected by the lender or the lender fails to prove that it has provided substantive services, then the financial advisory fee will be recognized as beheading interest in the judicial decision. However, it is worth noting that if the borrower does not have evidence or the evidence is not sufficient to prove its factual claim, and recognizes the authenticity of the Financial Advisory Service Agreement, etc., it will bear the legal consequences of not being able to prove it. In order to protect their rights and interests, when it comes to financial advisory fees and loan interest, the lender of funds needs to consider the following aspects: First, the contractual amount of the loan is consistent with the actual amount of the loan, to avoid inconsistencies between the two; Second, if it involves financial advisory fees, consulting fees and other related fees, a third party other than the lender may enter into a relevant service agreement with the borrower and provide real and effective advisory services; Third, it is not advisable to charge interest for a relatively short period of time (the day of lending or the next day) after lending; Fourth, lenders need to be careful to retain evidence of the provision of services such as financial advisors, such as relevant service agreements, service confirmations, etc.

2021-11-29

In the case of the case, the insurance contract does not agree on the insurance value of the new energy vehicle insurance claims calculation standard.

[brief case]] On November 10, 2017, Wang took out motor vehicle commercial loss insurance (hereinafter referred to as vehicle damage insurance) and no deductible insurance for his car in a property insurance Beijing branch. The insured vehicle is a pure electric car, and the purchase of this car enjoys preferential policies for the purchase of new energy vehicles; after deducting the state subsidy for the vehicle involved in the accident, Wang actually paid 60000 yuan for the purchase. A property insurance Beijing branch evaluates and calculates the insurance cost according to the official guide price before the car subsidy. The compensation limit for car damage insurance is 169801.2 yuan, and the insurance period is from December 12, 2017 to December 11, 2018. On April 25, 2018, Wang's father, Wang Yi, had a traffic accident driving the vehicle, causing damage to the vehicle. After the accident, Wang Yi immediately reported to a property insurance Beijing branch and explained the accident. After Wang mou sent the accident vehicle to a car sales co., ltd for repair and paid the repair cost of 70365 yuan. Wang mou believed that the vehicle involved in the accident was insured against vehicle damage in a property insurance Beijing branch with an insurance amount of 169801.2 yuan. the accident in this case occurred during the insurance period, and a property insurance Beijing branch should compensate Wang mou for 70365 yuan in accordance with the insurance contract. A property insurance Beijing branch believes that the vehicle involved in the accident should be calculated according to the depreciation value of 54240 yuan of Wang's actual purchase price, and should not be compensated according to the vehicle insurance amount of 169801.2 yuan at the time of insurance, so it does not agree with the compensation amount claimed by Wang. focus of controversy] How to determine the insurance value of the vehicle involved in the accident. The court considered] The court held that the insurance contract signed by Wang and a property insurance Beijing branch was the true intention of both parties, did not violate the mandatory provisions of laws and administrative regulations, and should be legal and effective. The focus of the dispute in this case is how to determine the insurance value of the vehicle involved in the accident. According to the provisions of Article 55 of the the People's Republic of China Insurance Law, if the insured and the insurer agree on the insurance value of the subject matter of the insurance and state it in the contract, the agreed insurance value shall be the standard of compensation calculation in the event of loss of the subject matter of the insurance. If the insured and the insurer have not agreed on the insured value of the subject matter of the insurance, the actual value of the subject matter of the insurance at the time of the insurance accident shall be the standard for the calculation of compensation in the event of loss of the subject matter of the insurance. According to Article 18 of the the People's Republic of China Insurance Law, the amount of insurance refers to the maximum amount of the insurer's liability for compensation or payment of insurance benefits. According to the above provisions, in a property insurance contract, the subject matter of the insurance has an insured value, and the amount of insurance is determined on the basis of the insured value. Insurance value is the economic value of the subject matter of insurance that can be estimated in monetary terms at a particular period of time. Specifically in this case, the subject matter of the insurance is the insured vehicle under the name of Wang. The insurance value is the monetization of the insured's insurance interest in the subject matter of the insurance. The value of the subject matter of the insurance exists objectively. It will not change due to whether there is a state subsidy, and then the insured's insurance interest in the subject matter of the insurance is also objective, and it will not change due to whether there is a state subsidy. According to Article 13 of the "Motor Vehicle Comprehensive Commercial Insurance Clauses" (hereinafter referred to as the "Insurance Clauses"), the insurance amount is determined according to the actual value of the insured motor vehicle at the time of insurance. In this case, the corresponding insurance amount in the "insurance amount" column of the motor vehicle comprehensive commercial insurance policy is 169801.2 yuan, that is, when Wang mou insured the vehicle, a property insurance Beijing branch calculated the insurance amount and insurance cost based on the official guiding price before the subsidy of the vehicle. the department can also certify that the actual value of the vehicle involved in the accident when insured is 169801.2 yuan. Therefore, the court held that the actual value of the vehicle involved in the accident at the time of insurance should be the official guiding price of 169801.2 yuan before the subsidy. According to the provisions of Article 55 of the the People's Republic of China Insurance Law, if the insured and the insurer have not agreed on the insured value of the subject matter of the insurance, the actual value of the subject matter of the insurance at the time of the insurance accident shall be the standard of compensation calculation. In this case, the two parties did not agree on the insurance value, so a property insurance Beijing branch should be based on the actual value of the subject matter of the insurance at the time of the accident as the standard of compensation calculation. According to the Insurance Clause, the actual value of the vehicle in this case after depreciation at the time of the insurance accident is 169801.2 x (1-16 x 0.006)= 153500.2848 yuan. In this case, Wang claimed that the vehicle maintenance cost was 70365 yuan, and the value of the loss was also lower than the actual value after the above depreciation, and within the scope of the insurance amount. Therefore, the court supported Wang mou's claim of vehicle maintenance cost of 70365 yuan, and did not support the opinion that a property insurance Beijing branch claimed to calculate the insurance amount according to the price before subsidy and to calculate the insurance amount according to the actual purchase price of 60000 yuan. Lawyer Advice] In recent years, the scale of new energy automobile industry has developed rapidly, and the use of new energy vehicles is more common. For new energy vehicles, car owners generally enjoy state subsidies when purchasing new energy vehicles, so the actual purchase price of new cars for car owners is lower than the official market guidance price. In motor vehicle property loss insurance, the current general practice of insurance companies is to calculate the premium based on the price before the subsidy, and the amount after the subsidy is used as the standard for the upper limit of compensation, that is, the "high insurance and low compensation" in practice ". In this case, with regard to the insurance claims of new energy vehicles, the court held that in the absence of a clear agreement on the value of automobile insurance in the insurance contract, the insurance company should take the actual value of the vehicle involved in the accident at the time of insurance, that is, the official guide price before the subsidy, as the calculation standard of insurance claims. Through this case, it is suggested that in the process of carrying out the new energy vehicle insurance business, the insurance company should clearly agree on the insurance value in the insurance contract and standardize the underwriting procedures, such as strictly fulfilling the obligation to remind the insured about the compensation limit and other contents, so as to prevent the relevant claims and litigation risks.

2021-11-29

Viewpoint | The Influence of the Unestablished Company Resolution on the Cancellation of Change Registration-From the Perspective of Judicial Application of Paragraph 4 of Article 22 of the Company Law

Foreword: The company resolution is the meaning of the company's authority, which affects and reflects the company's business decision-making and internal governance will, and the company's application for change registration to the registration authority must be based on an effective company resolution. The fourth paragraph of Article 22 of China's "Company Law" stipulates that the company can apply to the registration authority for cancellation of the change registration according to the effective judgment document after the company resolution is invalid and revoked. However, there is no specific regulation on whether the company resolution can be applied for cancellation of the change registration. The approval criteria held by the registration authorities in different regions are not the same. There are many disputes in practice, the introduction of clearer legal guidelines in the area of registration authority approval scales has become a real need. 1 The conceptual background of the company's resolution is not established. Before the introduction of the "Company Law Interpretation IV", my country has always adopted a "dichotomy" for the form of corporate resolutions, like Germany, Switzerland, and Taiwan ". The so-called "dichotomy" refers to the validity of the company's resolution defects into procedural defects and content defects, and respectively identified as revocable and invalid, its legal logic is based on the analysis of the degree of resolution defects, serious defects constitute invalid reasons, relatively minor general defects constitute revocable reasons. The division of the validity of the "dichotomy" for the company's resolution is relatively simple and direct, but the defects are also obvious: the establishment of a legal act is a prerequisite for the validity of a legal act, and only after the establishment of a legal act can it be judged whether it is valid. The constituent elements and value orientations of the two are not the same. The establishment element focuses on the objective evaluation of the facts, while the effective element is the secondary value evaluation of whether the established legal act violates the mandatory provisions and social public order and good customs. However, the revocation or invalidity of a resolution is premised on the establishment of the resolution, and when the resolution is not established at all, it is undoubtedly wrong to judge the validity of its revocation or invalidity. Article 5 of the Interpretation of the Company Law adds a lawsuit of non-establishment of the resolution, which means that China has divided the company resolution into three cases: non-establishment, revocable and invalid, and has moved from the "dichotomy" of the determination of the validity of the resolution to the "trichotomy". The "trichotomy", based on the system of meaning in the theory of legal acts, separates the establishment of a resolution from its entry into force. The essence of corporate resolution is the act of resolution, and the fundamental feature of the act of resolution is that it takes the meaning of majority decision to form a mechanism in accordance with the requirements of procedural justice. The company resolution as the company's meaning, unlike the natural person to make a meaning may only need to go through a psychological weighing process, the establishment of the company resolution to comply with the statutory or articles of association agreed voting methods or procedures as a necessary condition, does not meet the procedural value of the resolution can not be recognized as the company's meaning. 2 Legal provisions 1. Article 40 of the regulations on the Administration of Company Registration: if a company applies to the company registration authority for cancellation of change registration in accordance with the provisions of Article 22 of the Company Law, it shall submit the following documents: The application signed by the legal representative of the (I) company; the judgment document of the (II) people's court. 2. Article 22, paragraph 4, of the Company Law: if the company has gone through the change registration in accordance with the resolution of the shareholders' meeting or the general meeting of shareholders or the board of directors, after the people's court declares the resolution invalid or revokes the resolution, the company shall apply to the company registration authority to cancel the change registration. 3. Article 5 of Interpretation IV of the Company Law: If the resolution of the shareholders' meeting or the general meeting of shareholders or the board of directors has one of the following circumstances, if the parties claim that the resolution is not established, the people's court shall support it... 3 Disputes in Practice There are two controversial views in practice: The first point of view is that Article 40 of the Regulations on the Administration of Company Registration and the fourth paragraph of Article 22 of the Company Law only stipulate two legal situations: the people's court declares the resolution invalid and revokes the resolution. The registration authority can approve the company's application for cancellation of change of registration based on the effective judgment that the resolution is invalid or the resolution is revoked, the registration authority needs to comply with the requirements of administration according to law. The law cannot do without authorization. In the absence of clear provisions, the application for cancellation of change registration based on the effective judgment of "the resolution is not established" lacks legal basis and should not be approved. The second view is that although the invalidity and revocation of resolutions stipulated in paragraph 4 of Article 22 of the Company Law are both for resolutions that have already been established, there is no clear provision for the circumstances under which resolutions are not established. However, a resolution that is not established is of course not legally binding and does not produce legal effect. The consequences of non-establishment are even more than invalid and revocable. The applicant may apply to the company registration authority for cancellation of the change registration based on the effective judgment of the resolution that is not established. The registration authority shall approve it in accordance with the law. 4 The author suggests The author agrees with the second view, for the following reasons: 1. In August 2017, the Supreme People's Court issued the Supreme People's Court on the application of<中华人民共和国公司法>When answering a reporter's question, Judge Du Wanhua, a full-time member of the Judicial Committee of the Supreme People's Court, replied as follows: "Article 22 of the Company Law of our country stipulates that the actions of confirming the invalidity of the resolution and revoking the resolution are all aimed at the resolution that has already been established and do not cover the situation where the resolution is not established. In our view, from the interpretation of the system, a resolution that is not established is of course not legally binding and should be an implied provision of company law. Therefore, Article 5 of the" Interpretation IV of the Company Law "stipulates that the action of the resolution is not established, together with the action of invalidation of the resolution and the action of revocation of the resolution, together constitute the pattern of" trichotomy ". The Supreme Court's attitude towards this can also be seen from the Supreme Court's previous communiqué cases: whether a legal act is established or not is a matter of factual judgment, the validity of a legal act is a matter of legal value judgment, and if a resolution lacks basic establishment elements, there is no question of effectiveness evaluation. Unestablished civil legal acts do not have legal effect, which is in line with the basic logic of the law. The legislature does not need to make separate legislation on this issue. Moreover, the background of the promulgation of the Interpretation IV of the Company Law is that the Supreme People's Court uses the way of issuing judicial interpretations to fill the loopholes in Article 22 of the Company Law. Therefore, Article 5 of the Interpretation IV of the Company Law stipulates that the resolution is not established, it should be the same as the invalidity and revocability of the resolution, which should belong to the applicable circumstances of Article 22 of the Company Law, and the failure of the resolution can be regarded as one of the circumstances in which the company applies to the registration authority to cancel the registration of the change. 2. Whether it is the theory of legal acts or judicial practice in our country, it is recognized that "the resolution is not established" can be used as the applicable situation stipulated in the fourth paragraph of Article 22 of the "Company Law". For example, the second item of Article 4 of the "Interim Administrative Measures for the Cancellation of Enterprise Registration by Sichuan Provincial Industry and Commerce and Market Supervision Authorities" clearly includes the non-establishment of the resolution of the shareholders' meeting as one of the cancellation of registration by the registration by the registration authority, for example, the civil judgment of Zhengzhou intermediate people's court (2018 Yu 01 min zong No. 4885) and other effective documents also regard the non establishment of the resolution as the implied application of Article 22 of the company law. In practice, the non establishment of the resolution should also be regarded as the situation that the company applies to the registration authority to cancel the change registration. Lawyer Profile Chen Xiaotong, male, corporate lawyer of Shandong Zhongcheng Qingtai (Jinan) Law Firm, Bachelor of Law of Shandong University, Master of International Commercial Law and Maritime Law of Swansea University, UK, Outstanding Young Lawyer of Shandong Province, Director of European and American Alumni Association of United Front Work Department of Shandong Provincial Committee of the Communist Party of China, Student entrepreneurship mentor of Jinan University. Since its official practice in June 2014, its work has mainly been to serve as perennial legal adviser to medium and large state-owned enterprises, banks and other financial institutions, special legal adviser to financial institutions for enterprise investment and financing projects, and special legal adviser to capital market business. conduct legal risk assessment on the main business of enterprises, and issue legal opinions for daily operation of enterprises and special projects. Chen Xiaotong's lawyer team has experience in serving many large and medium-sized state-owned enterprises, banks, and listed companies. They have certain experience in corporate governance of state-owned enterprises, corporate restructuring, laws and regulations of listed companies, capital market business, etc., and are familiar with procedures and relevant laws and regulations. In terms of non-litigation business, the team has been responsible for the issuance of corporate bonds, corporate bonds, medium-term notes, ultra-short-term financing bills, debt financing plans, listing on the company's main board and asset securitization, and is familiar with the characteristics of the legal field of investment and financing in the capital market. The main consultants who have served since their practice are: shandong Provincial Development and Reform Commission, Shandong Iron and Steel Group Co., Ltd., Jinan Iron and Steel Group Co., Ltd., Shandong Commercial Group Co., Ltd., Lushang Real Estate Co., Ltd., Shandong Branch of People's Insurance Company of China, Industrial and Commercial Bank of China Limited Shandong Branch, Standard Chartered Bank Jinan Branch, Jinan Rural Commercial Bank Co., Ltd., Qingdao Bank Co., Ltd. Jinan Branch, Jiyang Rural Commercial Bank Co., Ltd., Qingdao Huangdao Development (Group) Co., Ltd., Qingdao West Coast New Area Fusion Holdings Co., Ltd., Weifang Infrastructure Construction Investment and Development Co., Ltd. and other units. Contact number: 15614682525 E-mail: eroscxt@163.com</中华人民共和国公司法>

2021-11-26

Viewpoint... "Discussion of the period of exercise of mortgage."

Problem Background On May 2, 2017, Company A and Bank B signed the Liquidity Loan Contract, agreeing that Bank B would grant it a loan of $50 million for a period of 12 months. On the same day, the two parties signed the Maximum Mortgage Contract, which agreed that Company A would provide a mortgage guarantee for the claim with the property in its name and register the mortgage. When the loan matures, Company A is unable to repay the loan and Bank B takes it to court. On July 20, 2018, under the mediation of the court, the two parties reached a settlement, agreeing that Company A will repay Bank B 50 million yuan of principal and interest within three days after the effective date of the mediation agreement, and the case acceptance fee will be borne by Company A. Later, because Company A did not fulfill its repayment obligations, Bank B applied to the People's Court for enforcement based on the effective civil mediation, and the court ruled on September 23, 2020 to terminate the enforcement procedure. In this case, the court's mediation did not confirm the mortgage enjoyed by the bank, so did Bank B lose the mortgage, or what remedy was sought to realize the mortgage? The lack of confirmation of the mortgage right in the judgment and mediation statement 1. in force does not result in the loss of the mortgage right of the mortgagee. First of all, the "Maximum Mortgage Contract" signed by Company A and Bank B clearly stipulates the mortgage matters, and goes through the mortgage registration procedures to obtain the other title certificate of the property involved in the case. In accordance with the provisions of Article 172 of the Civil Code, the mortgage is established in accordance with the law. Secondly, according to Article 140 of the Civil Code, the meaning of silence can only have legal effect if the law clearly stipulates and the parties have special agreement. Although the civil mediation statement does not state that Bank B has a mortgage on the property involved in the case, nor does it state that Bank B waives the mortgage on the property involved in the case. Bank B has not expressly renounced the mortgage, and has not canceled the mortgage registration, in the absence of an express agreement or no special provisions of the law, it is not appropriate to presume that Bank B has renounced its rights, so Bank B still enjoys the mortgage on the property involved in the case. (Reference Case:(2021) Supreme Famin Shen No. 1134) Period of exercise of the mortgage of 2. B Bank Article 419 of the Civil Code stipulates that the mortgagee shall exercise the mortgage right during the limitation period of the main claim. As we all know, the statute of limitations system was established to urge civil rights holders to actively claim their rights within the statutory period, and if the statute of limitations expires and the principal claim loses the protection of legal coercion, the debtor can defend it. The statute of limitations system does not apply to security interests, as a security right and a mortgage from the right, can only be exercised during the statute of limitations for the principal claim, I .e., during the exercise of the mortgage. In the light of the above background, the problems during the exercise of the mortgage in judicial practice are classified as follows: Scenario 1: Bank B fails to sue this claim during the statute of limitations for the principal claim. The creditor did not bring a lawsuit against the claim within the limitation period of the main claim, and when the limitation period expires, the claim becomes a natural debt, that is, it loses the protection of legal force and is a debt that cannot be requested for enforcement. If Company A defends this, the court does not protect the claim. A mortgage is a subordinate right, subordinate to the principal claim, in which case the mortgage of Bank B is not protected by law under Article 419 of the Civil Code. If the mortgage registration of Bank B continues to be protected, it loses its legal basis. Therefore, Company A may request the registration of the cancellation of the mortgage in accordance with Article 59 of the Minutes of the National Court's Civil and Commercial Trial Work Conference. Scenario 2: Bank B files a lawsuit against the principal claim during the statute of limitations for the principal claim, fails to apply for confirmation of the mortgage, and fails to apply for enforcement during the enforcement period after the judgment becomes effective. Before the expiration of the statute of limitations for the principal creditor's rights, Bank B only filed a principal creditor's rights lawsuit against Company A, and did not request the court to confirm its mortgage right. After the judgment or mediation of the people's court, it did not apply for execution of the debtor within the time limit for application for execution stipulated in the Civil Procedure Law. If it claims to exercise the mortgage right to the mortgagor, the people's court will not support it. The view in the Judicial Interpretation and Application of the Guarantee System of the Civil Code of the Supreme People's Court: "Since the current law of our country has modified the period of application for enforcement, even if the claim has been confirmed by the people's court, it will no longer be protected by the people's court because the period of limitation for enforcement has passed. Since the principal claim is no longer protected by the people's court, the security interest subordinate to the principal claim is naturally no longer protected by the people's court." In such cases, the period during which the mortgagee exercises the mortgage is up to the time when the statute of limitations for enforcement of the principal claim judgment has elapsed. Scenario 3: Bank B only filed a lawsuit against the principal claim during the statute of limitations for the principal claim, did not apply for confirmation of the mortgage, applied for enforcement within the statute of limitations after the judgment of the principal claim came into effect, and then reached a settlement agreement with Company A under court mediation, withdrew the application for enforcement, and the court ruled to terminate the enforcement proceedings in the case. In this case, the court ruled that the termination of the case was due to the request to withdraw the execution application after the applicant and the person subject to execution reached a settlement agreement. According to the law, the termination of the execution of the case means the end of the execution procedure, which is different from the termination of the execution procedure. In principle, after the execution of the case is concluded, the execution procedure cannot be started again. However, the "Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law" clearly stipulates that the circumstances in which the termination of execution can be resumed are limited to two types of situations, that is, "after the applicant and the person subject to execution have reached a settlement agreement, the people's court may decide to terminate the execution" and "terminate the execution due to the cancellation of the application". In the case of termination of execution under the above two circumstances, if the party subject to execution fails to perform the execution of the settlement agreement, the person applying for execution may apply to the enforcement court to resume the execution of the original effective legal document, or file a lawsuit for the performance of the settlement agreement. It is worth noting that the application for resumption of enforcement should be restricted by the provisions on the limitation of enforcement in the Civil procedure Law and judicial interpretation. (Reference Case:(2020) Supreme Law Enforcement No. 4) The view in the Supreme People's Court Civil Code Guarantee System Judicial Interpretation and Application: In trial practice, the only criterion for supporting the mortgagor is whether the statute of limitations for the principal claim has elapsed. As long as the statute of limitations period for the principal claim has not elapsed, the creditor's request should be supported. Of course, if the limitation period of the main claim expires and the creditor claims to exercise the mortgage, the people's court shall not support it. After the execution of the judgment has failed, the period of limitation of action shall be recalculated. The "failure of enforcement" here should be understood as the decision of the enforcement court to conclude the enforcement proceedings in this case on the judgment of the principal claim. Scenario 4: Bank B only filed a lawsuit against the principal claim during the statute of limitations for the principal claim, did not apply for confirmation of the mortgage, applied for enforcement within the statute of limitations after the judgment of the principal claim became effective, and then reached a settlement with Company A under court mediation, and the court ruled to terminate the enforcement proceedings. Issued by the Supreme People's Court<关于执行案件立案、结案若干问题的意见>(Fa [2014] No. 26) ", the people's court ruled that after the termination of the execution procedure, if it finds that the person subject to execution has property, it may resume execution on the application of the person applying for execution or ex officio. If the executor applies for the resumption of execution, it shall not be subject to the time limit for applying for execution. In this case, since the principal claim judgment has entered into force and Bank B has applied for enforcement within the statutory time limit, there is no question of interruption, suspension or extension of the statute of limitations for the principal claim. As a subordinate right, there is no question of interruption, suspension or extension during the exercise of the mortgage. Bank B may, when applying for the resumption of enforcement proceedings, claim the exercise of the mortgage together with the enforcement court. Scenario 5: Bank B only filed a lawsuit against the principal claim during the statute of limitations for the principal claim, did not apply for confirmation of the mortgage, applied for enforcement within the statute of limitations after the judgment of the principal claim became effective, reached a settlement with Company A under court mediation, and the court ruled to terminate the enforcement proceedings. Company A then files for bankruptcy and liquidation, and Bank B files a claim with the administrator within the statutory period. Although Company A applied to the people's court for bankruptcy liquidation in the course of execution, Bank B, with an effective judgment, declared the claim to the bankruptcy administrator during the period of filing the claim as stipulated by law, and the administrator shall confirm that the claim is a claim secured by property. The period of declaration of claims is also the period of legal protection, because Bank B exercises the main claim within the period prescribed by law, so the main claim is still protected by law, and accordingly, its mortgage should also be protected by law. Trial point of view: mortgage, as a kind of security right, does not apply the statute of limitations system. However, in order to prevent the mortgagee from exercising the mortgage right and give full play to the economic utility of the mortgaged property, the property law stipulates that the mortgagee should exercise the mortgage right within the limitation period of the main creditor's right, which is to make it clear that the mortgagee should exercise the mortgage right within the period when the main creditor's right is protected by law. The period of protection of the law, before the main claim has not been determined by the effective decision, the main claim limitation period. When the main claim is determined by the effective decision of the proceedings, at this time the main claim is not the statute of limitations, but after the decision takes effect, the main claim may not be realized, in the case of the debtor's failure to take the initiative to perform, there is still the problem of enforcement. As long as the parties apply for enforcement against the debtor during the period of application for enforcement, with reference to Article 202 of the Property Law, the mortgagee shall be deemed to have exercised his rights during the period during which the principal claim is protected by law, and the rights of the mortgagee shall still be protected. In other words, after the principal claim has been confirmed by the effective decision, the period during which the principal claim is protected by law at this time is no longer the limitation period, but the period during which the application is made. Similarly, in the case of the debtor's bankruptcy, the period during which the principal claim is protected by law is the period during which the claim is declared under the law. (Reference Case:(2021) Supreme Famin No. 154) In summary, although the law provides for the corresponding protection of the creditor's mortgage, but as the right holder, should still actively claim the right, to avoid exceeding the statutory protection period, otherwise will bear the adverse consequences of the loss of rights.</关于执行案件立案、结案若干问题的意见>

2021-11-26

Real estate perspective: Is punitive damages in the Consumer Rights Protection Law applicable to commercial housing sales disputes?

Case Introduction Lu mou and Liang mou bought a shop from a real estate company in Weihai. when the company sold the shop involved in the case, they informed Liang mou and Lu mou that the house involved in the case was on the first floor and shared a parcel area of 27910 square meters. they agreed in the commercial housing presale contract that the shared parcel was weigao guoyong (2012) no 40, and the parcel area use right was 27910 square meters, which was included in the floor area ratio and was normal property right. However, the real estate registration certificate of the shop involved in the case shows that the common parcel area is 6734 square meters, and the floor 1 (underground right type: underground space construction land use right) is located. Lu mou and Liang mou believe that the company knows that the shop involved in the case belongs to the semi-basement and is a supporting facility room, which is not included in the floor area ratio, and deliberately sells the shop involved in the case to the normal floor area ratio commercial room, which is fraudulent sales, the company is required to be liable for damages in accordance with the provisions of the Consumer Rights Protection Law. focus of controversy Whether the legal relationship of commercial housing sales contract is regulated by the Law on the Protection of Consumer Rights and Interests court decision The court of second instance held that Article 2 of the law on the protection of consumers' rights and interests stipulates that if consumers need to purchase, use goods or receive services for daily consumption, their rights and interests shall be protected by this law; if there are no provisions in this law, they shall be protected by other relevant laws and regulations. The commercial housing presale contract and supplementary agreement clearly stipulate that the use of the shop involved in the case is commercial. Liang and Lu entrust the commercial company designated by the company to operate and manage the shop. Therefore, the shop involved in the case is used for operation rather than living consumption needs. Liang and Lu did not purchase the shop involved in the case based on living consumption needs, and were not "consumers" stipulated in the Consumer Rights Protection Law ", therefore, the legal relationship of the commercial housing presale contract involved in the case is not adjusted by the Consumer Rights Protection Law. And for the legal application of commercial housing presale contract disputes, the Supreme People's Court has formulated a special judicial interpretation, and the relevant provisions of the "Judicial Interpretation of Commercial Housing Sales" should be applied in this case. Lawyer's opinion Our lawyers believe that the punitive damages in the Consumer Rights Protection Law should not be applied to commercial housing sales disputes. First, Article 2 of the Law on the Protection of Consumer Rights and Interests "Consumers need to purchase, use commodities or receive services for their daily consumption, and their rights and interests are protected by this law..." According to the legislative principles and purposes of the Law on the Protection of Consumer Rights and Interests, the "commodities" in this article refer to the commodities that belong to "movable property" for daily consumption, and commercial housing as real estate is a special property, it does not fall within the scope of "goods" adjusted by the Consumer Rights Protection Law. The "product" mentioned in the Product Quality Law, which is at the same level and of the same type as the Consumer Rights Protection Law, does not include commercial housing, etc. In terms of the scope of adjustment, the concept of "commodity" used in the Consumer Rights Protection Law is the same as the concept of "product" used in the Product Quality Law, and disputes over the sale of commercial housing do not apply to the Product Quality Law, the Consumer Protection Act should also not apply. Second, the price of commercial housing is expensive, and it is often millions. The application of the "Consumer Rights Protection Law", especially the application of Article 55 of the "Consumer Rights Protection Law", "If a business operator commits fraudulent acts in providing goods or services, it shall be in accordance with the consumer The request increases the compensation for the losses suffered, increasing the amount of compensation is three times the price of the consumer's purchase of goods or the cost of receiving services." Dealing with commercial housing sales disputes will inevitably lead to an imbalance in the rights and obligations of the operator and the consumer, leading to a serious tilt in the interests of both parties, which violates the principle of fairness and justice. Third, with the continuous improvement of my country's real estate registration system, the implementation of the model text of the commercial housing sales contract, and the requirements of the online signing and filing system, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes (2020 Amendment) The original judicial interpretation of Articles 8 and 9 of the commercial housing sales contract in which the seller maliciously breaches and frauds, resulting in the buyer's inability to obtain the five situations, therefore, for the breach of contract in the sale of commercial housing, the original punitive damages that "the seller can be requested to bear no more than double the paid purchase price" are no longer applicable, and the breach of contract in the sale of commercial housing can be resolved by applying the relevant legal provisions and judicial interpretations of the contract, such as the contract code of the Civil Code and the interpretation of the Supreme People's Court on the application of laws in the trial of commercial housing sales contract disputes, therefore, punitive damages in the Consumer Protection Law should not be applied when disputes over the sale of commercial housing arise. Related Cases (I) Yuan Mou and Changzhou Real Estate Development Co., Ltd. Commercial Housing presale Contract Dispute- (2020) Su 04 Min Shen No. 91 The "Consumer Rights Protection Law" stipulates that if operators provide goods or services fraudulently, consumers can claim punitive damages, but it does not stipulate whether the sale of commercial housing falls within the scope of the law. Punitive damages for the sale of commercial housing are not typical product fraud and service fraud, but mainly because the seller intentionally or violates the principle of good faith, resulting in the subject matter can not be delivered or the subject matter has some defects, or deliberately conceal the true situation, deceive consumers. The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes clearly stipulates the responsibility of developers for fraudulent acts. Therefore, the judicial interpretation should be applied to cases involving fraud in commercial housing sales disputes. Provisions. Therefore, Yuan argued that the provisions of punitive damages in the the People's Republic of China Consumer Rights and interests Protection Law should be applied in this case, which cannot be established in accordance with the law. (II) Yang Mou and Chongqing Real Estate Development Co., Ltd. Housing Purchase and Sales Contract Dispute- (2020) Yu 01 Min Zhong No. 4136 In this case, the two parties are in a contract for the sale of commercial housing, and Yang also applied for the termination of the contract. In this case, the relevant laws and regulations and judicial interpretation of the contract for the sale of commercial housing shall apply. Article 8 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts stipulates: "In case of any of the following circumstances, the purpose of the commercial housing sales contract cannot be achieved, the buyer who cannot obtain the house may request to terminate the contract, return the paid house purchase price and interest, and compensate for losses, and may request the seller to bear no more than double the payment of the purchase price: (a) after the conclusion of the contract for the sale of commercial housing, the seller did not inform the buyer and mortgaged the house to a third party; (II) after the conclusion of the contract for the sale of commercial housing, the seller sold the house to a third party. "Article 9 stipulates:" When the seller enters into a commercial housing sales contract, if one of the following circumstances occurs, resulting in the contract being invalid or canceled or terminated, the buyer may request the return of the paid house purchase price and interest, compensation for losses, and may request the seller to bear the liability of not more than double the paid house purchase price: (1) deliberately concealing the fact that the commercial housing presale license certificate has not been obtained or providing false commercial housing presale license certificate; (II) deliberately conceal the fact that the house sold has been mortgaged; (III) deliberately conceal the fact that the house sold has been sold to a third party or that the house has been resettled for demolition compensation. "Accordingly, in the commercial housing sales contract relationship, the buyer requires the seller to bear the punitive compensation liability, should comply with one of the aforementioned provisions. Yang asked the developer to bear punitive liability on the grounds that the developer would sell the parking space that was judicially seized to it, which constituted fraud. However, when the two parties signed the "parking space confirmation letter", the developer did not have one of the circumstances stipulated in the judicial interpretation, and Yang's claim was not supported by the court.

2021-11-26

In the case of the case, the insurance company shall bear the insurance liability if it knows that the insured meets the deductible.

[brief case]] A machinery company leased the wheel loader it purchased to a company in Zhanjiang Port, and at the request of a company in Zhanjiang Port, insured the Guangzhou branch of a financial insurance company with third party liability insurance. When an employee of a machinery company communicated with a salesman of a financial insurance company Guangzhou branch about the insurance, he informed that the equipment was used for rental and the customer specified the amount of insurance compensation. Later, because the loader caused the death of others in the rental process, a machinery company to a financial insurance company Guangzhou branch claim. The Guangzhou branch of a financial insurance company refused to pay compensation on the grounds that the contract stipulated that the subject matter of insurance caused liability for damages to a third party during the lease and loan period, and the insurer was not responsible for compensation. The people's court held that the Guangzhou branch of a financial insurance company, knowing that the loader involved in the case was leased, that is, in line with the deductible, still underwrote it, and did not fulfill the obligation to prompt the exemption, and should be regarded as agreeing to compensate the third party for the damage caused by the lessee's lease of the loader involved in the case. focus of controversy] Whether the Guangzhou branch of a financial insurance company should bear the responsibility of paying insurance benefits. The court of first instance held that] A financial insurance company Guangzhou branch issued a "comprehensive insurance policy for engineering machinery and equipment" to a machinery company, and the legal relationship between the two parties was established. According to Article 16 of the the People's Republic of China Insurance Law, an insurance accident refers to an accident within the scope of insurance liability as stipulated in the insurance contract. In this case, a machinery company and a financial insurance company Guangzhou branch have a dispute over whether the accident involved constitutes an insurance accident stipulated in the comprehensive insurance of construction machinery and equipment plus the third party liability insurance clause. The main points of the dispute are as follows: 1. the right boundary of the three liability insurance of construction machinery and equipment; 2. whether a machinery company has fulfilled the obligation of disclosure of qualified insured to Guangzhou branch of a financial insurance company; 3. whether a machinery company has the obligation to pay work injury claims to the actual user of construction machinery. 1. on the right boundary of the three liability insurance of construction machinery and equipment. The "People's Property Insurance Company of China Construction Machinery and Equipment Comprehensive Insurance Additional Third Party Liability Insurance Clauses" stipulates that during the insurance period, the insured or its permitted user has an accident in the process of using the subject matter of the insurance, causing a third party If the party suffers personal injury or death or direct property damage, the insured shall be liable for economic compensation in accordance with the law, and the insurer shall be responsible for compensation in accordance with the additional insurance contract. In the following cases, the insurer shall not be liable for compensation for damages to third parties caused by the subject matter of insurance for any reason: during the period of theft, robbery, robbery, rental, loan, or transfer to another person. According to the second paragraph of Article 17 of the the People's Republic of China Insurance Law, for the clauses in the insurance contract that exempt the insurer from liability, the insurer shall, when concluding the contract, make provisions sufficient to attract the attention of the applicant on the insurance policy, insurance policy or other insurance certificates, and make a clear explanation of the content of the clause to the applicant in written or oral form; if there is no prompt or clear explanation, the clause shall have no effect. In this case, a machinery company claimed that the Guangzhou branch of a financial insurance company refused to compensate because of the insurance accident of loader 39 involved during the rental period. since the Guangzhou branch of a financial insurance company had no proof to prove that it had served the additional three insurance clauses for construction machinery and equipment to a machinery company, the Guangzhou branch of a financial insurance company had no right to refuse to compensate on the grounds of applying the exemption clause. However, in the absence of a reminder or express statement of the exemption clause under the aforementioned law, only the exemption clause does not have legal effect, and the definition of the concept of insurance accident and the boundary of rights in the insurance clause is not included here. Therefore, the exemption clause is not applicable in this case, and whether the Guangzhou branch of a financial insurance company makes a claim to a machinery company depends on whether the accident in question constitutes an insurance accident as defined in the "Comprehensive Insurance Clause for Construction Machinery and Equipment of the people's property Insurance Company of China. 2. the question of whether a machinery company has fulfilled its disclosure obligations to the Guangzhou branch of a financial insurance company. The insured involved in the case was a machinery company, and the actual user of the No. 39 loader involved and the person responsible for the accident were both a company in Zhanjiang Port. A machinery company claimed to have informed the Guangzhou branch of a financial insurance company that "several loaders to be insured are for rental use" and submitted a "notarial certificate" to the court of first instance, which confirmed the fact. Although Guangzhou Branch of a financial insurance company knows that the loader No. 39 involved in the case is for rental use, on the premise that the owner and the user can be the insured, the insurance policy issued by Guangzhou Branch of a financial insurance company shall be subject to the intention of a machinery company. A machinery company has not proved that it has made a clear intention to Guangzhou Branch of a financial insurance company to use a company in Zhanjiang Port as the insured, no evidence was submitted to prove that changes were made to the insured after the insurance policy was issued. It shall be deemed that a machinery company has not fully fulfilled its obligations of information disclosure and clear notification, and the liability arising therefrom shall be borne by a machinery company of the insured. According to daily life experience and trading habits, the insured should be independently confirmed by the insured. The insured does not take the initiative to propose, and the insurer has no way to know. A machinery company claims that the insured is determined by a financial insurance company Guangzhou Branch in accordance with relevant laws and regulations. The claim that it is not determined by the personal wishes of a machinery company lacks factual basis, and the court of first instance will not accept it. 3. on the question of whether a machinery company should settle claims to the actual user of loader 39 involved in the case. According to the "Road Traffic Accident Investigation Report", Chen Mou, the driver of loader 39 involved in the case, did not put up the funnel belt feeding and guiding pipe in advance according to the "Safety Technical Operation Regulations for 404 Berth Head Moving Elevated Hopper" during the process of driving the loader to move the funnel, causing the guiding pipe to collide with the cement frame of the conveyor belt nearby, and the guiding pipe fell off and hit the commander, causing the safety accident of the death of the branch. There is a direct legal causal relationship between Chen's illegal operation and Zhi's injury and death. The drainage pipe of loader 39 involved in the case is only the instrumental motivation of Zhi's death. The substantive motivation lies in Chen's negligence and illegal operation. In production, he failed to fulfill the duty of careful attention and the responsibility of ensuring the safety of others' lives, and he was responsible for the death of Zhi. From the perspective that Chen Mou is a staff member of a labor service company stationed in a company in Zhanjiang Port in the form of labor dispatch and Zhi Mou is a staff member of a company in Zhanjiang Port, in accordance with the provisions of the second paragraph of Article 34 of the the People's Republic of China Tort Liability Law (now Article 191 of the Civil Code), during labor dispatch, the dispatched staff member causes damage to others due to the performance of work tasks, the employer receiving the labor dispatch shall bear the tort liability; in accordance with the first paragraph of Article 11 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases, the employer shall be liable for compensation if the employee suffers personal injury in the course of employment activities. Therefore, a company in Zhanjiang Port, whether as an employer receiving labor dispatch or an employer in employment activities, shall bear tort liability for the legal consequences of the death of a work-related injury, which is the nature of the employer's liability rather than the "third party liability" in the third party liability insurance ". According to the fourth paragraph of Article 65 of the the People's Republic of China Insurance Law, liability insurance refers to insurance that is the subject of insurance based on the liability of the insured to a third party in accordance with the law. The aforementioned "third party" refers to the subject other than the insured and its related parties as stipulated in the liability insurance policy, which has no direct related interest and has the right to claim compensation from the insured. In the practice of liability insurance, the boundaries of insurance according to liability are very clear, and the liability of employees for personal injury belongs to the scope of employer liability insurance rather than third party liability insurance. In this case, a company in Zhanjiang Port is not the insured involved. According to the Agreement on Renewing the Lease of Four Longgong Long Arm Loaders signed between a machinery company and a company in Zhanjiang Port, a machinery company only needs to bear the third party liability insurance obligation with the purchase amount of not less than 200000 yuan. In addition, there is no other legal or agreed compensation obligation to a company in Zhanjiang Port, A machinery company claimed that the evidence of the obligation to pay compensation for the death of a third party caused by the loading vehicle within the scope of the three liability insurance for the construction machinery and equipment involved in the case was insufficient, and the court of first instance did not accept it. To sum up, the accident involved does not constitute a liability insurance accident for construction machinery and equipment. A machinery company's claim for compensation of 500000 yuan and interest from a financial insurance company Guangzhou Branch lacks factual and legal basis, and the court of first instance will not support it. The court of second instance held that] The focus of the dispute in the second instance of this case is whether the Guangzhou branch of a financial insurance company should bear the responsibility of paying insurance benefits. First of all, although the insured of the third party liability insurance contained in the insurance policy is a machinery company, but a machinery company has clearly informed the Guangzhou branch of a financial insurance company that the loader involved is for rental use, and also clearly informed that it is insured at the request of the customer, therefore, a financial insurance company Guangzhou branch is in the knowledge that the case involved in the loader is not a machinery company's actual use of the circumstances still agreed to a machinery company as the insured to be insured. However, from the "China People's Property Insurance Co., Ltd. Construction Machinery and Equipment Comprehensive Insurance Additional Third Party Liability Insurance Clause" submitted by a financial insurance company Guangzhou Branch, it can be seen that the insurance liability stipulates that "the insured shall bear the economic liability according to law, and the insurer shall be responsible for compensation according to the agreement of the additional insurance contract", and stipulates that the insurance subject is liable for damages to the third party during the lease and loan period, the insurer is not responsible for compensation. If, in accordance with the terms of the insurance, a machinery company, although insured, but ultimately can not get any compensation, this situation is obviously contrary to the original intention of a machinery company to insure third party liability insurance. Guangzhou Branch of a financial insurance company did not prompt a machinery company in good faith, but after the accident, it refused to pay compensation on the grounds of equipment rental, which was against integrity. Therefore, the Guangzhou branch of a financial insurance company, knowing that the loader involved in the case was leased, should be regarded as agreeing to compensate for the damage caused to a third party during the lease of the loader involved in the case. Secondly, a machinery company did not sign the insurance policy at the time of insurance, and a financial insurance company Guangzhou branch did not submit evidence to prove that it had served the insurance terms of third party liability insurance to a machinery company. Therefore, the Guangzhou branch of a financial insurance company did not inform a machinery company of the contents of the contract and the exemption clause, and did not fulfill the obligation of prompting. According to the provisions of the second paragraph of Article 17 of the the People's Republic of China Insurance Law, the clause exempting the Guangzhou branch of a financial insurance company from liability has no effect on a machinery company. Therefore, a financial insurance company Guangzhou branch claims not to bear the liability, lack of contract basis. Thirdly, according to the agreement on renewing the lease of four long arm loaders signed by a machinery company and a company in Zhanjiang port and the statement made by a machinery company when it insured the Guangzhou branch of a financial insurance company, a machinery company is responsible for handling the third party liability insurance for the loaders involved in the rental case and providing a copy of the insurance contract for the record. The purpose of this agreement between a company in Zhanjiang Port and a machinery company is to reduce losses by settling claims to the insurance company in the event of an accident involving a loader, otherwise the agreement will have no practical significance. As a machinery company is insured with a limit of 500000 yuan for third party liability insurance, a company in Zhanjiang port, after compensating the family members of the deceased, claimed the insurance compensation amount of 500000 yuan to a machinery company, which is in line with the contract purpose of the agreement on renewing the lease of four long arm loaders for third party liability insurance. A company in Zhanjiang Port has received compensation from a machinery company through rent deduction and said that a machinery company has claimed compensation from the Guangzhou branch of a financial insurance company. Therefore, it should be determined that a machinery company because of the accident to bear the economic liability, a machinery company has insurance interests, can claim insurance money to a financial insurance company Guangzhou branch. Lawyer Advice] In this case, the court held that the insurance company did not prompt the insured in good faith to meet a certain exemption reason when accepting the insurance, but refused to pay compensation on the basis of the exemption after the occurrence of the insurance accident, which was obviously contrary to good faith, and finally ruled that the insurance company should bear the insurance liability. Through this case, it is recommended that the insurance company perform its statutory obligations when accepting insurance, and the business management personnel should have a certain degree of professional sensitivity and careful review of the relevant information stated by the policyholder, especially in the case that the subject matter of the insurance stated by the policyholder is obviously In accordance with the exemption of the insurance contract, the policyholder should be promptly prompted and clearly explained, and attention should be paid to the retention of relevant evidence during the process, to prevent insurance claims disputes and adverse risks in the case of legal deductibles.

2021-11-25

Viewpoint | Carrier and Path of Enterprise Compliance Construction

As a legal person, the behavior of an enterprise depends on the behavior of the head and staff of the enterprise, and corporate compliance needs to be achieved through the behavior of the head and staff of the enterprise. The Guidelines for Compliance Management of Central Enterprises (for Trial Implementation) clearly points out that compliance management is an organized and planned management activity aimed at the operation and management behavior of enterprises and employees. In practice, the behavior of the person in charge and the staff of the enterprise is mainly guided and regulated by the role of the actor, the management system and the operation system. The construction of enterprise compliance system should take the actor's role, management system and operation system as the carrier, and build a compliance management system of enterprise organization system, management system system and workflow system. Construction of Compliance Organization System in 1. Enterprises The enterprise organization system provides organizational guarantee for the enterprise compliance construction, and the enterprise organization setting should strengthen the content of compliance construction and clarify the compliance responsibilities. The construction of enterprise organization system should focus on the following aspects: First, clarify the compliance management responsibilities of the directors and supervisors, and build a compliance leadership system. The articles of association are the basic norms of corporate governance, and the leading role of the articles of association in corporate compliance management should be brought into full play. Within the framework of the articles of association, a corporate governance structure with mutual cooperation, mutual restriction and clear division of labor for corporate compliance decision-making, implementation and supervision should be formed. At the same time, a system of compliance management leaders and compliance committees should be established to improve the professional level and ability of compliance. Second, corporate compliance should go deep into the "front line" of business and serve business operations. Operation is the foundation of the enterprise, compliance should be closely around the business operation, fully reflect the practicality of compliance, that is, compliance management responsibilities to the enterprise's business departments, clear business departments responsible for daily compliance management, in accordance with compliance requirements to carry out business. Third, establish institutions, clarify responsibilities, and provide organizational guarantees for compliance construction. Set up a compliance department or clarify a compliance lead department to take the lead in organizing, coordinating and supervising compliance management. At the same time, qualified enterprises can hire compliance consultants to give full play to their compliance practice advantages and jointly provide compliance support for enterprises. Fourth, cultivate compliance awareness and establish a good compliance atmosphere. Compliance awareness is the soft power of compliance and the fundamental guarantee for the implementation of all contents of the compliance system. Enterprises should closely integrate practice and carry out all-round and multi-dimensional compliance training for all employees to enhance their compliance awareness. Construction of Compliance System of 2. Enterprises The enterprise system is the code of conduct for the person in charge and staff of an enterprise, which directly affects the behavior of the enterprise. The construction of the enterprise system is the top priority of the construction of the enterprise compliance system. Enterprise compliance should take the construction of the enterprise system as the starting point to provide system guarantee for enterprise compliance. The compliance construction of enterprise system should focus on the following aspects: First, pay attention to the compliance of the enterprise system. The enterprise system is the main line of enterprise management, and the compliance of the system itself is the premise and basis of enterprise behavior compliance. The enterprise system should comply with laws and regulations, regulatory provisions, industry standards and enterprise articles of association, rules and regulations, as well as international treaties, rules and other provisions. Second, enterprises should establish a special compliance system to provide a quasi-search for compliance construction. The special compliance system is the basis for the compliance work of enterprises, which mainly includes the legality audit system of major matters, the pre-judgment system of major risks, and the risk disposal and management system. Third, around the operation, the establishment of business compliance business guidelines. According to the enterprise business, according to the compliance requirements to improve the business management system, the development of relevant business guidelines, according to the line of business, the development of its supporting compliance guidelines, so that front-line business personnel how to regulate compliance to carry out related business, and according to business development and regulatory needs to update the business guidelines in a timely manner. Construction of Compliance Operation System for 3. Enterprises The enterprise compliance system is a project in which all employees of the enterprise participate, all departments cooperate closely and cooperate with each other. The construction of the enterprise compliance system should embed compliance content in the construction of the enterprise operation system: First, compliance management will be carried out throughout the whole process of enterprise behavior, and a multi-departmental collaborative compliance operation system will be established. Compliance is inseparable from enterprise operation and enterprise management. Compliance management should run through the whole process of enterprise decision-making, implementation and supervision. Compliance operation requires the linkage and cooperation of multiple departments. Compliance work should give full play to the synergy effect of various departments and coordinate with enterprise law, risk, internal control, audit, supervision and other work. At the same time, strengthen the process control of business decision-making, that is, implement the "three important and one large" decision-making system, and refine the decision-making matters and authority at all levels. Second, establish a sound compliance control mechanism to give full play to the front-end effectiveness of compliance review and risk prevention and control. Compliance review is a key link in the compliance guarantee system, and the construction of a compliance review mechanism can effectively play the role of a "firewall" for compliance management. The focus of compliance control should be to improve the system, decision-making, contract, operation compliance review, clear without review can not be implemented. Build a risk management system that combines identification and prevention with response and disposal, strengthen the construction of enterprise risk identification and risk response systems, and effectively prevent and manage risks. Third, optimize the compliance operation system and establish a multi-level compliance management structure. Enterprises should give full play to the main responsibility of compliance management of business departments, compliance management departments, internal audit departments and external compliance consultants, and establish a multi-level compliance operation system. The business department performs the first line of defense for compliance management and proactively conducts daily compliance control; the compliance management department performs the second line of defense for compliance management, provides compliance support to the business department, and conducts compliance audits on specific issues; the internal audit department performs the third line of defense for compliance management and audits compliance management; the external compliance consultant performs the fourth line of defense for compliance management and conducts compliance audits on matters required by the enterprise. Fourth, improve the construction of the compliance guarantee system and establish a reward and punishment incentive and supervision mechanism. The guarantee system is an important part of the compliance operation system, and it is necessary to give full play to the enterprise reward and punishment mechanism to regulate and restrict enterprise behavior. Accountability and assessment and evaluation together constitute a compliance management guarantee mechanism, through the assessment, reward and punishment system to encourage or urge enterprises and employees to perform compliance duties, to ensure compliance and efficient operation. 4. epilogue Corporate compliance construction is a key link to enhance the modernization of corporate governance capabilities, compliance should not only stay at the institutional level, but also need the organic convergence of ideas and practices, corporate compliance organization system, compliance management system, compliance work operation system trinity, mutual convergence, mutual cooperation. Only by integrating compliance concepts and systems into it, and forming an all-round, multi-field, and in-depth compliance, can the due effectiveness of corporate compliance be truly brought into play and the rapid development of enterprises can be promoted and guaranteed.

2021-11-24

Viewpoint | Discussion on the governance structure of for-profit private schools

Introduction Article 1 of the notice on the administration of name registration of for-profit private schools (hereinafter referred to as the notice) (No. 2017 156) stipulates that private schools shall be registered as limited liability companies or joint stock limited companies in accordance with the relevant provisions of the the People's Republic of China company law and the the People's Republic of China law on the promotion of private education, Its name shall comply with the provisions of relevant laws and regulations on company registration management and education. Accordingly, for-profit private schools have the formal characteristics of the company. The purpose of this paper is to explore the governance structure of for-profit private schools, so as to clarify the similarities and differences between the governance structure of for-profit private schools and general companies. Text The nature of 1. for-profit private schools is for-profit legal persons. According to the provisions of Article 1 of the notice, for-profit private schools may be registered as limited liability companies or joint stock limited companies. Combined with the classification of legal persons in Chapter III of the Civil Code, the nature of for-profit private schools should be for-profit legal persons. 2. for-profit private schools are similar to the general corporate governance structure. The Governance Structure of (I) for-profit Private Schools Article 20 of the Law on the Promotion of Private Schools stipulates that private schools shall set up school councils, boards of directors or other forms of decision-making bodies and establish corresponding supervision mechanisms ...... Article 21 of the Law on the Promotion of Private Education stipulates that school councils or boards of directors shall be composed of organizers or their representatives, principals, faculty representatives and other personnel ...... Article 22 of the Law on the Promotion of Private Education stipulates that, the school council or board of directors shall exercise the following functions and powers: (1) dismiss or dismiss the principal ...... Article 23 of the Law on the Promotion of Private Education stipulates that the legal representative of a private school shall be the director, chairman or principal. The twenty-fifth of the Law on the Promotion of Private Education stipulates that the principal of a private school is responsible for the education, teaching and administration of the school and exercises the following functions and powers: (1) to implement the decisions of the school council, board of directors or other decision-making bodies ...... Accordingly, the governance structure of for-profit private schools consists of the council (board of directors), the principal and the supervisory body. The council (board of directors) is the decision-making body of the school, which makes decisions on the education, teaching and administrative matters of the school. The principal is the executive body of the school, responsible for the daily work of the school and the implementation of the decisions of the decision-making body; however, its supervisory body is not composed of school employees, but It is composed of other administrative departments such as the Education Bureau. (II) the general corporate governance structure Article 37 of the Company Law stipulates that the board of shareholders shall exercise the following functions and powers: (1) to decide the company's business policy and investment plan... Article 46 of the Company Law stipulates that the board of directors shall be responsible to the shareholders and exercise the following functions and powers: (1) to convene the board of shareholders and report its work to the board of shareholders... Article 53 of the Company Law stipulates that, the board of supervisors and companies without a board of supervisors exercise the following powers: (1) Check the company's finances... The company's governance structure is reflected in the division of labor and coordination between the shareholders (large) meeting, the board of directors and the board of supervisors. The shareholders' (general) meeting is the authority of the company, which determines the company's business strategy and major policies. The board of directors is the executive body of the company, responsible to the shareholders of the company, responsible for formulating and implementing specific business plans, and responsible for the daily management and operation of the company. The board of supervisors is the supervisory body of the company, which is responsible for supervising the business behavior of the company and its directors, supervisors and senior managers. This division of labor within the company is also the optimal configuration of the modern corporate governance structure, and the "three meetings" cooperate with each other to achieve the company's profit-making goals. Comparative Analysis of (III) for-profit Private Schools and General Corporate Governance Structure As shown in the figure, the company is adjusted by the Company Law, and its governance structure is reflected in the division of labor and coordination among the shareholders' (general) meeting, the board of directors and the board of supervisors. Compared with the general corporate governance structure, as a special company, the provisions of the corporate governance structure of for-profit private schools are found in the Law on the Promotion of Private Education, which is composed of the board of directors (or council), the principal, the education administration department and relevant departments. The two are similar in terms of decision-making and implementation agencies. However, in terms of supervision institutions, the Company Law is a typical civil and commercial law, which pays more attention to the autonomy of market subjects, and sets up a board of supervisors or an independent supervisor system for the internal supervision of the company; the Law on the Promotion of Private Education not only requires for-profit private schools to carry out market autonomy, because the field of education is related to the national talent reserve and citizens' right to education, so that there must be appropriate intervention by the state, therefore, the setting of the supervision body also reflects the characteristics of state intervention, which is externally supervised by the education administrative department and relevant departments. This kind of supervision is not only post-event supervision, but also embodied in all-round supervision and guidance before, during and after the event. Conclusion The governance structure of for-profit private schools has the characteristics of "company-like", but it is not exactly the same as the corporate governance structure. The specific performance is that due to the particularity of for-profit private schools, their supervision institutions reflect the characteristics of state intervention, and the education administrative departments and relevant departments carry out external supervision.

2021-11-24