Point of View... The signing and performance of the company contract.

Two basic principles that must be clear when signing a 1. contract (1) If the contract is not settled immediately, the parties must agree in writing. Because when such disputes arise, it is more conducive to both parties to clarify their responsibilities. The two basic purposes of the written agreement are: first, the two parties have determined their respective rights and obligations. However, some work units, in the economic exchanges for convenience or based on the trust of customers, and only by the other party's telegram, call, delivery notice, etc. to complete the delivery, if one party appears dishonest, it will be entangled, resulting in a contract dispute. At this time, because there is no way to prove or insufficient evidence, it is often impossible for one to file a case or to obtain the support of the people's court. (2) All provisions of the contract should be specific and detailed. The examination of the qualification of the subject of the contract signed by the 2.. According to different signatories, the following materials should be reviewed: (1) Signing by the legal representative of the other party in person 1. Whether the other party has a business license, and whether it is true, as well as the business scope and business period specified in the business license; 2. There is a difference between whether the legal representative recorded on the business license and the signatory on the contract; 3, the contractor's identity card and other relevant identity materials review; 4, the other party's business premises and whether normal operation, etc. (2) Signing by a specific salesman of the other party 1. Identification materials of the salesman; 2, the relationship between the salesman and the entrusting unit; 3. Can there be legal and efficient entrustment procedures between the salesman and the entrusting unit; 4. Whether the salesman has obtained the authorization of the entrusting unit, especially the authority of the entrusted agent and the time limit of the entrusted agent. Special precautions against unauthorized agents and ultra vires agents; 5. Whether the entrusted enterprise unit has a business license and whether it still exists at the time of signing the contract. In short, both parties must make specific and careful verification of the situation of the other party before signing. The method adopted can be through telephone consultation, letter, letter, door-to-door inspection, or to relevant government agencies to inquire about the situation. On the basis of some research, we can understand the actual situation of the other party more specifically, which is also the first step for both parties to sign a contract. Review of main contents of 3. contract Generally speaking, the specific content of the contract is jointly agreed by both parties, which mainly includes the following clauses: 1. The names and addresses of both parties; 2. The content of the target; 3. Total amount; 4. Quality; 5. Price or remuneration (payment time limit, payment method);6. Performance time limit, address and method; 7. Liability for breach of contract (economic loss compensation, liquidated damages accounting);8. Dispute resolution methods (people's courts, arbitration commissions). Under a more common service contract, each of the above-mentioned main provisions is described. (1) Review whether the name of the contract is consistent with the specific content of the contract. (2) The names and addresses of the parties in the contract. In addition to the strict examination procedures mentioned above for the subject qualification of the parties to the contract, it is critical that the name of the other party to the contract be carefully examined at the time of signing the contract whether it matches the official seal it has signed. (3) Do a good job in the review of the contract subject. From the service contract, to determine the scope of the service. For ambiguous commodity names, special explanations can be made to avoid unnecessary disputes. (4) Make the necessary approval of the total amount, price, amount, etc. of the subject matter. For service contracts, the service items and methods to be collected shall be determined. (5) The regulations and standards of product quality, as well as the requirements and time limit of the supplier for product quality management, must be clear and specific. In terms of service contracts, the specific provisions for the business they provide are clarified. (6) For the acceptance of the subject matter, the specific acceptance procedures should be strictly standardized. If the other party is requested to sign for it in time after receiving the subject matter, if there is any objection, we must inform us within the specified time limit, otherwise we shall be deemed to have completed the performance of the contract. (7) The method and time limit of payment. What kind of payment method is of vital importance to the realization of our creditor's rights, and a performance method with a relatively small risk factor should be selected according to the performance ability of the other party. When the buyer pays by bank check, it is inspected in accordance with the prescribed procedures to prevent the buyer from taking the subject matter with a false check. In order to avoid the opponent's false cheque, you can go directly to the drawer's bank to hold the cheque and record it, and you can verify that the cheque has been cashed. (8) The deposit clause can be clearly defined in the contract, which can effectively safeguard our interests. In addition, the terms of liability for breach of contract should be clearly defined in accordance with the principle of our advantage. The problems that should be paid attention to in the performance of the 4. contract. (1) The presence of a contract does not necessarily mean that the contract has been performed. At the end of the work, the other party should sign for the receipt. The receipt should be sealed as much as possible. If there is no seal, the authorized person should sign it. (2) If we have an obligation to pay and the other payee is inconsistent with the parties to the contract, the parties to the contract shall be asked to provide a description of the payment instructions. (3) If the other party asks a third party to pay us, the payer shall issue a payment voucher. (4) Pay attention to the retention of evidence in the performance of the contract. In the transaction, the transaction documents are not properly preserved. In the event of a dispute, due to incomplete documents, some of the transaction details have no evidence, and even some of the original documents are lost, leaving only a copy. Because the copy is easy to forge, the handwriting cannot be identified and cannot be independently used as evidence, it is difficult for the court to accept the copy when the other party does not admit it. (5) Close coordination between the business and finance departments to effectively collect accounts payable to avoid arrears exceeding the statute of limitations. (6) In case of disputes, attention should be paid to collecting and submitting the following evidence to prove the signing, performance and modification of the contract: 1, written contract or oral contract content, witness testimony; 2. evidence of the delivery of the subject matter or the provision of documents relating to the subject matter; 3. Evidence of delivery of relevant documents and information; 4, the receipt of the subject matter of evidence; 5, the subject matter quantity, quality objection notice of evidence; 6. Evidence of sample sealing and sample quality; 7. Evidence of a third party's claim to the subject matter; 8. Evidence of contract modification and termination; 9. Evidence of breach of contract; 10. The amount of compensation for breach of contract or loss and other evidence. The 5. combines the case to explain the matters needing attention in the process of signing and performing the contract. Case 1: Case concerning unauthorised representation The owner of the house, Party A, entrusts his mother to sell the house to Party B through an intermediary. After Party B pays part of the purchase price, Party A (the owner's mother) will hand over the house to Party B. Later, due to the rise in house prices, Party A believed that the sale of the house was at a loss and asked Party B to increase the house price, which Party B refused. Party A filed a lawsuit with the court, arguing that his mother had no right to sell the house, because the power of attorney only listed the management of the house and other matters, and did not explicitly authorize the sale of the house. In the course of the court hearing, it was found that in order to fulfill the house purchase contract between the two parties, Party A had changed the purchase receipt into an invoice at the developer's office and handed it to Party B for tax deduction. The court, based on other facts of the case, determined that although the authorization of the power of attorney was unclear, Party A had acted afterwards to ratify the fact that the house purchase contract between the two parties was valid. Tip: If you strictly review the principal's agency authority and matters when signing the contract, you can avoid leaving legal loopholes for the other party. Case 2: Credit investigation on signing a contract The plaintiff is an equipment leasing company, the defendant is the lessee, the plaintiff leases the equipment to the defendant for use, the defendant stores the goods in a third party, the third party and the defendant has a certain relevance, the plaintiff has always thought that the third party is the defendant's subordinate enterprises, the reason why the lease to the defendant is because the third party has the ability to perform. During the performance of the contract, the plaintiff found that the defendant was unable to perform the contract. After investigation, the third party and the defendant had a certain degree of relevance, but they were completely two independent subjects in law. There was no basis for requiring the third party to bear the responsibility in accordance with the law. Tip: In this case, if the lessor conducts an appropriate credit investigation at the time of signing the contract, this situation can be avoided. Case 3: Review of illegality in relation to the signing of a contract A cultural company (Party A) signed an agreement with another company (Party B) to sign an agreement on a certain service. In the signed contract, both parties agreed that Party A would deliver the corresponding service payment to the account designated by Party B, and then Party B would designate the payment to a certain person's account. Later, due to disputes over various services, Party B sued the court and required Party A to pay the corresponding service fee. Party A replied that Party B provided a personal account, in violation of the law, so failed to pay, failed to pay the reason in Party B. After trial by the court, the court found that the agreement violated the mandatory provisions of the Company Law and the Commercial Bank Law and was invalid. Tip: A basic part of reviewing a contract is a legality review. Case 4: Contract seal, inconsistent at the time of contract signing and performance A construction company (A) to the steel company (B) to buy steel, the buyer and seller signed a steel purchase and sale agreement, after the agreement is signed, the steel company will be transported to the construction company's site, the construction company received steel, stamped on the delivery note, but the chapter is not filed. After a dispute over the steel payment, Party B sued Party A to the court for payment of the steel payment. Party A replied that it did not receive Party B's steel, and the signature on Party B's delivery note was not Party A's. At the time of the lawsuit, all site personnel had been evacuated because the project had been completed. After careful investigation, the court confirmed that Party A received the steel from Party B and finally ruled in favor of Party B. Hint: The seal is inconsistent and occurs from time to time in the performance of the contract. This problem is worth noting. Case 5: Problems arising from fax, etc. in the performance of the contract Party A is a garment company and Party B is a fashion company. Party A is entrusted by Party B to contract labor and produce a batch of garments. The order form is sent by Party B to Party A by fax, but the fax number does not belong to the telephone number of Party B's company. After Party A completes the processing according to Party B's standards, Party B refuses to accept. For this dispute, Party A sued the court and asked Party B to pay the processing fee. Party B replied that Party A has never been entrusted with the processing of clothing and shall reject Party A's claim. Fortunately, before Party A's lawsuit, the recording evidence was preserved. After the first and second instance of the case, Party B was finally decided to lose the lawsuit. Note: The fax involved in this case should be paid attention to when performing the contract. The above cases are all frequent situations that occur in the process of signing and performing contracts. Company managers are reminded that in the process of signing contracts, if there are no corresponding preventive and remedial measures, it is difficult to protect rights and interests.

2021-11-24

Viewpoint... The dispute between the victim of a traffic accident and the jurisdiction of the court where the insurance company is located-and an analysis of the major breakthrough in the successful revision of the jurisdiction appeal case.

In a motor vehicle traffic accident liability dispute case represented by the author, the higher court revoked the result of the inadmissibility ruling made by the basic court, and instructed the court of first instance to file a lawsuit against the relatives of the deceased in the court where the insurer is located. This final result marks a breakthrough in the jurisdiction of traffic accident cases, which is generally accepted by the court of the place where the traffic accident occurred. This article interprets the law by case, although it is a common traffic accident that causes death, but it is of great significance and extraordinary in the jurisdiction of the court, in order to give readers some enlightenment. A victim files a lawsuit in the court where the insurer is located. One day last winter, when A was driving his own private car along the South Second Ring Road in Shizhong District of Jinan City, he collided with B who was riding an electric bicycle across the road, resulting in B's death. The Shizhong District Brigade of the Traffic Police Detachment of the Jinan Public Security Bureau determined in accordance with the law that both the car driver A and the deceased B were equally responsible for the accident. After investigation, C property insurance company Jinan central branch company underwrites the car's strong insurance and commercial insurance under the third party liability insurance. A and the heir of the deceased B signed a "mediation agreement", agreed that the traffic accident in the car's strong insurance and commercial insurance under the three insurance all belong to Ding enjoy and claim. In order to claim the insurance money, Ding filed a lawsuit with the District Court where the insurer is located. 2 The court in the place where the insurer is located ruled that it will not be accepted. A district court orally informed the relatives of the deceased to go to the court where the accident occurred. The relatives of the deceased did not agree for some reason and insisted on prosecuting in Area A. The A District Court then ruled inadmissible. The reasons for the decision are as follows: "After review, this court believes that this case is a motor vehicle traffic accident liability dispute, and the jurisdiction court should be determined by the place of infringement or the defendant's domicile. The place of infringement in this case is the downtown district of Jinan city, and the place of residence of the car driver, I .e. the infringer a, is also the downtown district of Jinan city. although the place of residence of the accused c property insurance company Jinan central branch is Jinan district a, it is not the actual infringer. therefore, there is no legal basis for establishing the jurisdiction court based on the place of residence of the accused c property insurance company Jinan central branch. According to Article 119 of the Civil Procedure Law: "The prosecution must meet the following conditions:... the (IV) falls within the scope of the court's acceptance of civil litigation and the jurisdiction of the court of appeal". Paragraph 4 of Article 124: "For cases that do not fall under the jurisdiction of this court, the (IV) shall inform the plaintiff to bring a suit in a court with jurisdiction". Article 211 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law: "For cases where this court has no jurisdiction, the plaintiff shall be informed to file a lawsuit with a court with jurisdiction; if the plaintiff insists on filing a lawsuit, it shall be ruled not to accept it; if it is found that this court has no jurisdiction after filing a case, the case shall be transferred to a court with jurisdiction". Accordingly, the Court rejected the case. ......, the ruling is as follows: the prosecution of Ding, this court will not accept." Three victims appeal against the law The prosecutor, Ding, refused to accept the ruling of the first instance and appealed to the Jinan Intermediate Court within the time limit for appeal. The appeal request is to revoke the ruling of the first instance and instruct the court of first instance to accept the case. The grounds of appeal are as follows: The 1.'s original ruling that the court of first instance had no jurisdiction over the case was an error of fact. Reason: 1. The logic of the original ruling to determine the jurisdiction of the court is inconsistent and illegal, and the second instance should be corrected. The court of first instance held that "this case is a dispute over liability for motor vehicle traffic accidents, and the jurisdiction court should be determined by the place of infringement or the domicile of the defendant." Obviously, the competent court can be the court of the place of infringement or the court of the defendant's domicile. The appellant has the right to choose these two types of courts according to law. The appellant now chooses the court of the defendant's domicile as the court of appeal, which is in accordance with the law. Article 21, paragraph 3, of the "Civil Procedure Law" stipulates: "If several defendants in the same lawsuit have their domicile and habitual residence in the jurisdiction of two or more people's courts, each court has jurisdiction." Article 35 of this Law provides that: "In an action in which two or more courts have jurisdiction, the plaintiff may sue in one of the courts; ......" Accordingly, the court of the place of domicile of any one of the defendants may be the court of jurisdiction. The jurisdiction conferred on the courts by the Act is not subject to any preconditions. There are two defendants in this case. The appellant chose the court (District A Court) where Jinan Central Branch of C Property Insurance Company is located as the jurisdiction court, which is in full compliance with the law. The original trial ruled that the jurisdiction of the court of appeal was judged on the basis of whether the defendants were infringers. This practice is unfounded and should be corrected. 2. This case is not a purely tort dispute and should not be governed only by tort considerations. The original ruling forced the plaintiff to choose the court of the place of infringement or the court of the place of domicile of the infringer as the court of jurisdiction, which violated the law. The original ruling depriving the plaintiff of the statutory right of action (the choice of the competent court) should be corrected. As we all know, in traffic accident cases, the victim and the driver who caused the accident have a tort relationship, and the insurance company and the victim (the third party) have an insurance contract relationship. According to the traditional theory of tort compensation law, the victim should only sue the infringer such as the driver and the owner of the accident and claim the liability for tort compensation. After the infringer has paid the compensation, the insured (infringer) should apply to the insurer for compensation, instead of the victim directly listing the insurance company that underwrote the car in the infringement case as the co-defendant. These are two different legal relationships. The "Road Traffic Safety Law" implemented on May 1, 2004 broke through the shackles of the above-mentioned traditional tort compensation legal system, and pioneered a new type of accident compensation legal system to list the infringer and the insurer as co-defendants. The Tort Liability Act reconfirms this legal system. Based on the understanding of the aforementioned traditional tort compensation jurisprudence, for a long time after the implementation of the Road Traffic Safety Law, many courts did not follow the provisions of the Traffic Safety Law and the Tort Liability Law when accepting traffic accident cases. The new compensation system is implemented (the infringer and the insurer are listed as co-defendants), but still requires the plaintiff to only list the infringer as the defendant and prohibit the insurer as the co-defendant. It was not until December 21, 2012 that the Supreme Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Road Traffic Accident Damage Compensation Cases came into effect that the practice of courts across the country was unified: victims were allowed to sue infringers and insurance companies at the same time, and victims were required The insurance company that underwrites compulsory traffic insurance and commercial triple insurance is listed as a co-defendant. This practice is still used today. It can be seen from the above that the court of first instance has jurisdiction over the case, not without jurisdiction. From the perspective of the jurisdictional content stipulated in the Civil Procedure Law, if you choose the court of the defendant's domicile to sue, the law does not require the court of the infringer's domicile to be the court of the infringer's domicile. The court of first instance forced the appellant to sue either in accordance with the court of the place of infringement or in accordance with the court of the place of domicile of the infringer among the co-defendants, which in essence illegally deprived the appellant of the right to choose a court of jurisdiction in accordance with the law. This practice has no basis in the law and the ruling of the original trial should be corrected. 3. The ruling of the original trial deprived the appellant of part of his litigation rights, which constitutes an offence and should be corrected. The original ruling of the 2. was wrong in applying the law. (omitted) To sum up, the original ruling found that the facts were wrong and the applicable law was wrong, which should be corrected. In order to safeguard the legitimate rights and interests of the appellant, the court of second instance is requested to correct the error according to law. 4. The Court of Final Appeal revoked the ruling of the first instance and ordered the court of first instance to file a case for acceptance. After the trial, the Jinan Intermediate Court made a final ruling: revoke the first-instance ruling and order the first-instance court to accept the case. The reasons for the revision by the court of second instance are as follows: "... the appellant listed the insurer as a defendant in accordance with the law, in accordance with the provisions of the above judicial interpretation. The third paragraph of Article 21 of the "Civil Procedure Law" stipulates: "If several defendants in the same lawsuit have their domicile and habitual residence in the jurisdiction of two or more people's courts, each people's court has jurisdiction." Article 35 stipulates: "Where two or more people's courts have jurisdiction over a lawsuit, the plaintiff may bring a suit in one of the people's courts; ......" The appellant first chooses to bring a suit in the court of original trial in the place where the insurer is domicile, and the court of original trial has jurisdiction over the case. The court of first instance shall not accept the case improperly and shall correct it. … ruled as follows: The 1. revoked the civil ruling of Jinan District A People's Court (2021) Lu 0102 Minchu XXXX; 2., the case ordered Jinan A District People's Court to accept the case. This decision shall be final." V. Comments on Case-handling Lawyers Defendants in motor vehicle traffic accident liability disputes usually include motor vehicle drivers, motor vehicle owners, and property insurance companies that underwrite motor vehicles that cause accidents. Jurisdictional courts usually include: the court of the place where the accident occurred, the court of the motor vehicle driver's domicile, the court of the motor vehicle owner's domicile, etc. The difference in litigation costs, the different concepts of different courts, the difference in compensation treatment, especially the ability to file a lawsuit in the pilot provinces authorized by the Supreme People's Court to implement a unified compensation standard for the nature of urban and rural household registration, and many other factors have resulted in the same case in different courts. There will be different judgments (the amount of compensation is huge). Therefore, many victims attach great importance to the choice of the jurisdiction court. In many cases, it is more beneficial for the victim to file a lawsuit in the court where the insurer is located. At this time, the victim hopes to file a lawsuit in the court where the insurer is located. We temporarily summarize the above situation as demand-side demand, and the following objective situation can be summarized as supply-side supply: There are nearly 90 property insurance companies in my country, and the provincial branches and head offices of these companies are mostly located in provincial capital cities, Financial and insurance industry clusters in the capitals of autonomous regions, and municipalities directly under the Central Government, that is, they are highly concentrated in a certain 1. and two districts in the city. If the plaintiff takes the court of the insurer's domicile as the jurisdiction court, it will make it difficult for the courts in the 1. districts where property insurance companies in provincial capitals, autonomous regional capitals and municipalities directly under the Central Government gather to deal with an astonishing number of traffic accident cases. In order to deal with and alleviate the contradiction between supply and demand, the above-mentioned grass-roots courts have formed an effective practice over the years. If the plaintiff determines the court of jurisdiction according to the domicile of the insurer, the oral reply will not be accepted and the plaintiff will be informed that he should sue in the court where the traffic accident occurred. This has led to a large number of traffic accident victims who cannot choose to sue in the insurer's domicile court according to their own needs. For decades, the heirs of countless deaths have been unable to shake this judicial reality. When handling the appeal of jurisdiction dispute in this motor vehicle traffic accident liability dispute case, lawyer sun hanchuan overcame the difficulties, solved the above-mentioned problems, and cleared a major obstacle for such victims on the demand side in the future.

2021-11-23

Viewpoint... On the legality of court assistance in changing frozen equity in bankruptcy reorganization cases.

Presentation of 1. issues Article 19 of the Enterprise Bankruptcy Law stipulates that "after the people's court accepts the bankruptcy application, the preservation measures relating to the debtor's property shall be lifted and the enforcement procedure shall be suspended." The administrator may, in accordance with the foregoing provisions, apply for the lifting of all protective measures against the debtor's property, but it is difficult to lift the protective measures against the shareholders' equity holdings. After the reorganization plan adjusts the rights and interests of the contributors, the frozen state of equity will prevent the new and old shareholders from completing the registration of equity changes on their own, thus hindering the implementation of the reorganization plan. In order to solve this problem, the insolvency representative tries to find various ways, such as negotiation, acquisition of creditor's rights, setting settlement conditions, determining the transfer price of formal equity, auction of equity, application to the enforcement court for cancellation, and filing of enforcement objections. These methods have their own disadvantages, such as negotiation or acquisition of creditor's rights, which often increases time or money costs and is unfair to other creditors. In the reorganization plan, the lifting of the equity freeze as a condition for settlement does not necessarily lift all the freezes. Some creditors would rather not receive the payment than cooperate with the unsealing, and this method is not binding on the creditors of non-bankrupt enterprises; when the reorganization plan stipulates that the transfer price in the form of 1 yuan, 10 yuan or 100 yuan will be paid to the first cover and then apply to the enforcement court to lift the freeze on all shares. This practice not only confuses the adjustment of investors' rights and interests with the transfer of shares, but also divides the debt service funds from the transfer price of shares, and the transfer price lacks persuasiveness and basis, which has major logical defects. If the reorganization investor is determined by auction of shares, it is necessary to adjust the rights and interests of the investor before the equity auction, then it is also necessary to face the issue of the equity freeze; apply to the enforcement court to lift the seizure or file an enforcement objection, some courts have ruled to lift the seizure measures, but many courts have rejected the objection. As early as 2012, judges Zhang Yongjun and du Jun of the Supreme people's Court published a paper in the Application of Law, arguing that "the reorganization procedure takes precedence over the ordinary enforcement procedure, and the nature of equity reduction is not an intended transfer but more similar to a legal transfer. After the reorganization plan is approved by the people's court, it will have the nature of an effective legal document. The people's court and other relevant administrative organs should fully guarantee the implementation of the equity reduction in the plan, the equity freeze should be lifted." Professor Wang Xinxin published a paper in the People's Court News in 2016 and argued: "The reorganization plan approved by the court is mandatory for the change of the investor's equity, rather than the complete voluntary transfer of all parties, which is a judicial transfer of equity. Therefore, the court should issue a notice of assistance in execution in accordance with the company's regulations to ensure the implementation of the reorganization plan approved by it." And pointed out that "in the practice of the reorganization of listed companies in China in recent years, there are many cases involving the change of shareholders' equity, all of which are implemented by the court issuing a notice of assistance in execution." If the court accepting the bankruptcy case issues a notice of assistance in execution, requiring the commercial registration authority to register the change of equity under the name of the designated subject, this is the most direct and effective way to solve the problem of equity freeze. The judicial practice of changing the registration of frozen shares directly by the court accepting bankruptcy cases in 2.. Due to the imperfect provisions of the current Enterprise Bankruptcy Law, local courts have made various guidance within the legal framework to solve many practical problems encountered in bankruptcy cases. The Guangdong High Court, the Beijing Bankruptcy Court, the Guangzhou Intermediate Court, the Shenzhen Intermediate Court, and the Jiangsu High Court have made it clear that the court can assist in the implementation of the method of changing the registration of frozen shares. 1. Paragraph 2 of Article 98 of the guidelines on several issues concerning the trial of Enterprise bankruptcy cases issued by the Guangdong Provincial higher people's Court on November 29, 2019 stipulates: "when the people's court approves the reorganization plan, it shall be examined in the light of the value of the debtor's assets, liabilities, the proportion of the debtor's compensation in the reorganization plan, and the size of the retained rights and interests of the original shareholders after adjustment. After examination and approval, it shall be implemented in accordance with the provisions of the reorganization plan. If the people's court or registration authority that has taken measures to seal up the shares refuses to enforce them, the administrator may apply to the people's court for assistance in enforcement." 2. Article 132 of the "Regulations for Handling Bankruptcy Reorganization Cases (Trial)" formulated by the Beijing Bankruptcy Court on December 30, 2019 stipulates: "During the implementation of the reorganization plan, investors, creditors, etc. refuse to cooperate without justifiable reasons. If the rights and interests change procedures, the people's court may issue a notice of assistance in execution to the relevant units based on the application of the administrator and interested parties." 3. Article 10, paragraph 2, of the "Implementation Opinions on Promoting the Exit of Bankrupt Enterprises from the Market" jointly issued by Guangzhou Intermediate People's Court and Guangzhou Market Supervision Administration on May 26, 2020, No. 88 of Guangzhou Zhongfa [2020] stipulates: "Bankruptcy and reorganization enterprises need to change shareholders' matters due to the adjustment of investors' rights and interests, but the shares held by the original shareholders of the enterprise are pledged or sealed up, the administrator may go to the corresponding market supervision department for equity change registration with the case acceptance ruling, the approval of the reorganization plan ruling, the decision of the designated administrator (liquidation group), the notice of assistance in execution and other materials." 4. Article 7 of the minutes of the meeting on issues related to the cancellation of enterprises jointly issued by the Shenzhen Intermediate people's Court and the Shenzhen Municipal Market Supervision Administration on September 25, 2020 stipulates: "if a bankrupt and reorganized enterprise needs to change shareholders' matters due to the adjustment of the rights and interests of investors, but if the shares of the enterprise held by the original shareholders of the enterprise are pledged or sealed up, the people's court shall issue a notice of assistance in execution, the administrator may go to the commercial registration authority to register the change of equity with the ruling on the acceptance of the case, the ruling on the approval of the reorganization plan, the decision of the designated administrator (liquidation group) and the notice of assistance in execution issued by the people's court." 5. Article 5 of the "Implementation Opinions on Doing a Good Job in the Registration of Bankrupt Enterprises and Optimizing the Business Environment" jointly issued by the Jiangsu Provincial Higher People's Court and the Jiangsu Provincial Market Supervision Administration on November 16, 2021 stipulates: "The registration of change of shareholders of bankrupt enterprises shall be handled in accordance with the law. According to the bankruptcy reorganization plan approved by the people's court, it is necessary to change the registration of shareholders of the bankruptcy reorganization enterprise, but because the equity held by the original shareholders of the enterprise has been pledged or sealed up by the court, if the administrator is unable to apply for the registration of shareholder change, the bankruptcy court may issue a notice of assistance in execution, notify the market supervision department to assist in lifting the seal, removing the pledge, and handle the registration of equity change. After the seizure is lifted or the pledge is removed, the bankruptcy court shall promptly inform the pledgee and the court that originally took the protective measures of the situation." 3. Court Accepting Bankruptcy Cases Changes the Legality Basis of Frozen Equity Registration by Co-Enforcement It is the most effective way to solve the obstacles of equity freezing that the court accepting bankruptcy cases directly requires the commercial registration authority to complete the change registration by means of the notice of assistance in execution. In the absence of clear legal provisions, why do places such as Guangzhou and Shenzhen dare to issue the above judicial documents, and why do some areas dare to issue direct co-enforcement transfers? In addition to the admirable spirit of social responsibility, the more important support lies in the stable legal basis of this practice. The legal effect of the (I) equity freeze only extends to the autonomy of shareholders to transfer equity and the right to dividend income. According to the Civil Code, equity is one of the six property rights enjoyed by civil subjects, alongside property rights, claims, intellectual property rights and inheritance rights. Equity can be divided into self-interest and co-interest according to the purpose and manner of exercise. Self-interest rights refer to the rights enjoyed by shareholders based on their own interests, which can be exercised separately, including the right to return on assets, the right to request the distribution of surplus property, the right to transfer shares, the right to subscribe for new shares, etc. The right of common interest refers to the rights enjoyed by shareholders based on the interests of all shareholders or the company, including the right to vote at the shareholders' meeting, the right to convene the shareholders' meeting, the right to propose proposals, the right to question, the right to inquire about the articles of association and the books of account, and the right to request revocation by resolution of the shareholders' meeting. The Supreme People's Court<关于人民法院执行工作若干问题的规定>（试行）》第38条规定：“对被执行人在有限责任公司、其他法人企业中的投资权益或股权，人民法院可以采取冻结措施。冻结投资权益或股权的，应当通知有关企业不得办理被冻结投资权益或股权的转移手续，不得向被执行人支付股息或红利。被冻结的投资权益或股权，被执行人不得自行转让。”根据《最高人民法院、国家工商总局<关于加强信息合作规范执行与协助执行的通知>(October 10, 2014) Article 12 stipulates that if the shares are frozen, the shareholders shall not transfer them without authorization, and shall not set up pledges or other rights burdens. According to the aforementioned provisions, the consequence of the equity freeze is that the executed person may not transfer the frozen investment interest or equity on his own, and the enterprise may not go through the procedures for the transfer of the frozen investment interest or equity, and may not pay dividends or dividends to the executed person. The legal effect of the equity freeze only extends to the autonomy of the shareholders to transfer their shares and the right to dividend income, limiting the shareholders' right to self-interest, not the right to co-interest. The freezing of (II) shares does not affect the voting, compulsory adjudication and legal effect of the investor's equity adjustment plan. There is a fundamental difference between the transfer of equity to the reorganization investor or creditor in the adjustment plan of the investor's equity in the reorganization plan and the transfer of equity. The transfer of equity is the act of a shareholder transferring his equity to another person by means of transactions, gifts and other laws or the articles of association of the company. On the other hand, the adjustment of the rights and interests of the investors in the reorganization plan is based on the principle that creditor's rights take precedence over equity, and the rights and interests of the investors are reduced in the case of enterprise bankruptcy, so as to introduce the way of restructuring investors or debt-to-equity swap and reorganization. The acquisition of equity by investors is not based on the self-transfer of shareholders, and the investment price is not paid to individual shareholders. The shareholding freeze restriction is the shareholder's right to self-transfer and dividend of equity and investment interests. The reorganization plan investor's equity adjustment plan is not a shareholder's own transfer of equity or investment interests, nor does it involve dividends, does not belong to the restriction of equity freeze, and does not affect the voting rights of shareholders on the plan. According to Article 87 of the Enterprise Bankruptcy Law, even if the investor group does not vote to pass the capital contribution rights and interests adjustment plan, as long as the draft reorganization plan adjusts the investor's rights and interests in a fair and just manner, the court can force the decision. The freezing of equity or pledge is not an exception, and the freezing of equity does not affect the court's ruling and legal effect. (III) equity has undergone a change in the subject of rights prior to the registration of the change. According to the third paragraph of Article 32 of the Company Law, the effect of equity registration of a limited liability company is only against third parties. The industrial and commercial department is not the shareholder's equity confirmation authority, nor is it the property right registration authority, the industrial and commercial department of the limited liability company's capital contribution registration, the essential role is information publicity. Although no change registration has been made, the reorganization investor or creditor may acquire equity in accordance with the provisions of the investor's equity adjustment plan confirmed by the court ruling. (IV) the reorganization plan is an effective legal document, the people's court may complete the formalities for the transfer of property rights certificates by way of co-enforcement. The reorganization plan approved by the court has the nature of an effective legal instrument, and the reorganization plan stipulates that the change of equity to the name of the reorganization investor or creditor shall be implemented. According to Article 4 of the Enterprise Bankruptcy Law: "If the proceedings for the trial of bankruptcy cases are not provided for in this Law, the relevant provisions of the Civil Procedure Law shall apply." Article 251 of the "Civil Procedure Law" stipulates: "In the course of execution, if it is necessary to go through the procedures for the transfer of relevant property rights certificates, the people's court may issue a notice of assistance in execution to the relevant unit, and the relevant unit must go through it." In the course of the implementation of the reorganization plan, it is necessary to go through the formalities for the transfer of shares, but due to the freezing of shares, the shareholders are unable to do so on their own, so the people's court has the right to issue a notice of assistance in execution to the registration authority in accordance with the above provisions. The (V) investor's equity adjustment plan is binding on the debtor and all creditors. Article 92, paragraph 1, of the Enterprise Bankruptcy Law stipulates: "A reorganization plan approved by the People's Court shall be binding on the debtor and all creditors." If the executor applying for the freezing of equity is also a creditor of the debtor, the provisions of the investor's equity adjustment plan and the conditions for the settlement of claims shall be binding on it, and in the case of non-cooperation in the lifting of the equity freeze, the court shall rule on the basis of the reorganization plan to force the resolution of the equity freeze. The adjustment of the rights and interests of the (VI) investor and the change of the equity shall not harm the legitimate rights and interests of the applicant. In the case of the debtor's insolvency, there is no surplus to be distributed to the interests of shareholders, the adjustment of the rights and interests of the investor will not actually harm the rights and interests of the applicant for execution, and the continued freezing of the original investor's equity has no practical significance for the applicant for execution. If the enterprise goes bankrupt and liquidates due to the inability to transfer the shares, the shareholders' shares will no longer exist and the creditors will suffer greater losses. 4. epilogue As a civil preservation measure, the legal effect of the equity freeze is only to prohibit the right of shareholders to transfer their equity and investment interests and the right to dividends. The adjustment of the investor's rights and interests of the reorganization plan is the reduction and transfer of the investor's rights and interests based on the debtor's assets and liabilities in the bankruptcy reorganization proceedings of the enterprise, which is fundamentally different from the transfer of equity, and is not within the scope of the equity freeze measures. The reorganization plan is an effective legal instrument, and the adjustment of the rights and interests of the contributors determined by it has the effect of enforcement. In the case that the debtor and shareholders are unable to implement the investor's rights and interests adjustment plan on their own due to the freezing of equity, the people's court shall complete the registration of frozen equity changes by issuing a notice of assistance in execution in accordance with the provisions of the Enterprise Bankruptcy Law and the Civil Procedure Law. The practice has a sufficient legal basis and should be supported and widely applied.</关于加强信息合作规范执行与协助执行的通知></关于人民法院执行工作若干问题的规定>

2021-11-23

Real estate perspective: interpretation-the use of collective operating construction land to develop affordable rental housing.

In order to effectively improve the housing conditions of people with household registration difficulties in cities and towns, and solve the housing difficulties of new citizens, young people and other groups, we are gradually accelerating the improvement of the housing security system with public rental housing, affordable rental housing and shared property housing as the main body. Concept of 1. indemnificatory rental housing On June 24, 2021, the General Office of the State Council issued the "Opinions of the General Office of the State Council on Accelerating the Development of Affordable Rental Housing" (Guo Ban Fa [2021] No. 22), which explained the concept of affordable rental housing from the legal and policy levels. Affordable rental housing refers to the housing that the government organizes construction or raises through other means to rent out to eligible urban families or individuals with housing difficulties. Affordable rental housing mainly solves the housing difficulties of eligible new citizens, young people and other groups. It is mainly small households with a construction area of no more than 70 square meters, and the rent is lower than the rent of rental housing in the same area and quality market. 2., the State Council and Shandong Province have successively issued documents allowing collective operating construction land to be used for the development of affordable rental housing. On June 24, 2021, the General Office of the State Council issued the "Opinions of the General Office of the State Council on Accelerating the Development of Affordable Rental Housing" (2021 No. 22), which proposed that "large cities with net population inflow and cities determined by the provincial people's government, on the basis of respecting the collective wishes of farmers and with the consent of the urban people's government, can explore the use of collective operating construction land to build affordable rental housing; support should be given to the use of collective operating construction land in urban areas, close to industrial parks or areas with convenient transportation to build indemnificatory rental housing; rural collective economic organizations can build and operate indemnificatory rental housing through self-construction, joint venture, shareholding, etc.; the right to use collective operating construction land for the construction of indemnificatory rental housing can be mortgaged." On November 16, 2021, the General Office of the People's Government of Shandong Province issued the "Implementation Opinions of the General Office of the People's Government of Shandong Province on Accelerating the Development of Affordable Rental Housing" (Lu Zheng Ban Fa [2021] No. 17), which proposed that "Jinan, Qingdao and other large cities with a net inflow of population should focus on new citizens and young people, give priority to physical security and pay equal attention to rental subsidies, make use of resources such as collective operating construction land, supporting land for industrial parks, idle land owned by enterprises and institutions, idle houses in non-residential stock, and newly supplied state-owned construction land, actively support specialized large-scale housing leasing enterprises, and multi-point layout to drive the whole area. Vigorously develop affordable rental housing, and strive to achieve a balance between work and housing." Relevant regulations of Jinan City, 3. On October 13, 2021, the General Office of the Jinan Municipal People's Government issued the ''Jinan City Collective Construction Land Management Measures (Trial) ''(JZBF [2021] No. 21), although JZBF [2021] No. 21 Article 5 stipulates that collective construction land can be used for major (key) projects such as affordable public rental housing determined by the people's government at or above the county level, however, Article 12 of Chapter III" Collective operating construction land entering the market "stipulates that" collective operating construction land refers to collective construction land that is determined by land and space planning (overall land use planning, urban and rural planning) as industrial storage, commerce, tourism, entertainment and other operational uses, and registered for land ownership in accordance with the law." Document No. 21 of the Economic Administration Office [2021] does not directly stipulate in the chapter "Collective operating construction land entering the market" that collective operating construction land can be used to develop affordable rental housing. According to Article 8 of the document, it is intended to guarantee Public rental housing is included in the approval of collective construction land use rights. However, Lu Zhengban Fa [2021] No. 17 has made it clear that Jinan should use collective operating construction land to develop affordable rental housing. Since the national, provincial, and municipal regulations are not completely consistent, in practice, how should we master the use of collective operating construction land in the market? Our lawyers believe that from the time of issuance, the State Office issued document No. 22 [2021] in June this year, in November of the same year, the Shandong Provincial Government Office of the State Office issued document No. 22 [2021] detailed, and issued Lu Zheng Office issued document No. 17 [2021], the above documents are highly consistent in content, and actively explore the use of collective business construction land to build affordable rental housing, use resources such as collective operating construction land to actively support specialized large-scale housing rental enterprises, and vigorously develop affordable rental housing. Although Jinan's regulations on the use of collective construction land in the market are slightly different from those of the State Council and Shandong Province, the use of collective construction land to develop affordable rental housing is in the same line and complementary. Under the premise of meeting the requirements of document No. 22 issued by the State Office of the people's Government of China and document No. 17 issued by the Lu Zheng Office of the people's Government of Jinan City, collective operating construction land can be used to build indemnificatory rental housing, and relevant rural collective economic organizations can build and operate indemnificatory rental housing through self-construction, joint venture, shareholding and other means.

2021-11-23

Construction Engineering Environmental Capital Law Review (31st issue) | Ministry of Housing and Urban-Rural Development Standard Quota Department issued "Construction Engineering Volume List Pricing Standard" (draft for comments)

Source: Ministry of Housing and Urban-Rural Development of the People's Republic of China On November 19, 2021, the Standard and Quota Department of the Ministry of Housing and Urban-Rural Development issued the "Construction Project Volume List Pricing Standard" (draft for comments), which revised the "Construction Project Volume List Pricing Standard" (GB 50500-2013). The housing and urban-rural construction departments of all provinces and autonomous regions, the housing and urban-rural construction (management) committees of municipalities directly under the Central Government, the Housing and Urban-Rural Construction Bureau of Xinjiang Production and Construction Corps, the construction project cost management agencies of relevant departments of the State Council, and all relevant units: In order to improve the market-oriented formation mechanism of project cost and further unify the project pricing rules, we have revised the "Construction Project Volume List Pricing Standard" (GB 50500-2013) to form the "Construction Project Volume List Pricing Standard" (draft for comments), which is now sent to you for comments. Please feedback your written comments to our company before December 15. Contact person and fax: Cong Mingxue, 010-58934733 Contact E-mail: chengm@mohurd.gov.cn Contact address: Standard Quota Department of Ministry of Housing and Urban-Rural Development, No. 9 Sanlihe Road, Haidian District, Beijing (please indicate the words "Construction Project Quantity List Pricing Standard for Comments"), zip code: 100835 Annex: Valuation Standard for Bill of Quantities of Construction Projects (draft for comments) Department of Standards and Quotas, Ministry of Housing and Urban-Rural Development 17 November 2021 (This active public)

2021-11-21

Viewpoint... The discussion of preventing malicious evasion of financial debt through criminal relief.

Introduction Malicious evasion of financial debts, disrupting the normal financial order, destroying the social credit system, aggravating the operational risk of financial assets and directly threatening the healthy operation of the financial industry is a malignant tumor in the construction of China's financial ecological environment and has great social harm. In recent years, affected by the complex economic situation at home and abroad, the liquidity risk of some enterprises has been exposed and spread along the guarantee circle, and the trend of evading financial debts has risen, which has become one of the prominent problems affecting economic development and social stability. According to data disclosed by the CBI, the non-performing rate of credit funds has remained high for years, and the non-performing situation of national banks in 2019: the non-performing balance of the six major banks was 895.9 billion yuan, of which: 40.75 percent in the secondary category, 42.49 percent in the suspicious category and 16.76 percent in the loss category. The non-performing balance of 12 joint-stock banks was 480.5 billion yuan, of which: 43.64 per cent in the sub-category, 34.47 per cent in the doubtful category and 21.89 per cent in the loss category. Large banks have a non-performing loan ratio of 1.38 per cent and shares of 1.64 per cent. There is no lack of malicious evasion of financial debt. In view of the situation of malicious evasion of financial debts (bank credit) by borrowers, this paper discusses how to realize credit claims and recover credit debts for banks and other financial institutions through criminal means. Text Evasion of financial debts refers to the deliberate evasion, suspension and destruction of banking claims by enterprises, institutions, other organizations and individuals that lend to banking institutions. Malice means that these units and individuals subjectively know that they cannot repay the loan on time, still take false means to obtain the loan, or have the ability to repay the loan, but deliberately do not repay the loan for some motive. Malicious evasion of financial debt undermines the overall efficiency of loan use, and the ownership of credit assets and the safety of credit assets of financial institutions are threatened, which has serious social harm. Non-repayment of loans to financial institutions is not just a civil matter; in many cases, criminal offences are involved. Common charges First of all, let's take a look at the common crimes of malicious evasion of financial debt in the financial sector, especially in the bank credit business: Article 193 of the Criminal Law on the crime of loan fraud, in one of the following circumstances, for the purpose of illegal possession, defrauding loans from banks or other financial institutions, the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and a fine of not less than 20,000 yuan but not more than 200,000 yuan; if the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not less than 10 years and a fine of 50,000 yuan; if the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and a fine of not less than 50,000 yuan but not more than 500,000 yuan or confiscation of property: (I) fabricating false reasons for introducing funds or projects; (II) use of false economic contracts; (III) use of false supporting documents; The (IV) uses a false title certificate as a guarantee or repeatedly guarantees the value of the collateral; (V) defrauding loans by other means. The crime of obtaining loans by fraud is a new crime in the (VI) to the Amendment to the Criminal Law, and it is also a common crime in handling cases of malicious evasion of financial debts. One of the multiple crimes stipulated in Article 175 of the Criminal Law, "Whoever obtains loans, bill acceptances, letters of credit, guarantees, etc. from banks or other financial institutions by deception, causing heavy losses to banks or other financial institutions or other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or separately be fined; causing particularly heavy losses to banks or other financial institutions or having other particularly serious circumstances, shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and shall also be sentenced to a fine." Article 27 of the (II) on the Standards for Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (hereinafter referred to as the "Regulations") issued by the Ministry of Public Security in May 2010 stipulates that where the amount of loans obtained by deception is more than 1 million yuan, or the amount of direct economic losses caused to banks or other financial institutions by deception is more than 200,000 yuan, or although it does not meet the above-mentioned amount standard, however, if a loan is obtained by deception for many times, and other circumstances that cause heavy losses to financial institutions or have other serious circumstances, a case shall be filed for prosecution. The above can be seen, the crime of loan fraud than the crime of loan fraud punishment to be greater, but in judicial practice, the suspected crime of loan fraud case investigation than the suspected crime of loan fraud cases to be more, the reason is that the crime of loan fraud "illegal possession of the purpose" in judicial practice to identify more difficult. The investigative capacity of lawyers and banks makes it difficult to directly prove that the debtor has the purpose of illegal possession, and lawyers or bank staff can find the lender to understand the situation, but do not have the right to interrogate. For example, the purpose of the lender's loan is to purchase equipment, and as a result, after the money is put down, it uses most of the money to build the plant, and part of the money is returned to the previous credit funds, such as this kind of situation is difficult to identify as illegal possession. Because credit payments are still used in actual business, it is a commercial act. Then the debtor's use of fraudulent credit funds to purchase luxury cars and houses can be identified as illegal possession, but it is difficult for us to fix the evidence and can only provide clues to the public security department. The objective elements of the crime of obtaining loans by fraud. Next, according to judicial practice, the objective elements of the crime of obtaining loans are detailed: Direct economic loss caused by 1. Deceptive means to obtain loans of more than 1 million yuan or direct economic losses of more than 200,000 yuan. Whether it is illegally obtaining a loan of more than one million yuan or causing direct economic losses of more than 200,000 yuan to financial institutions, in judicial practice, the three departments of the public security organs and the law only determine that the principal, interest or other liquidated damages cannot be counted. In judicial practice, it is rare to be prosecuted for obtaining more than one million loans by deception or so-called multiple fraudulent loans without causing losses to the bank, and there is no corresponding judicial interpretation. 2. obtain loans by deception This crime is different from the crime of loan fraud and is not specifically listed. Therefore, in judicial practice, the identification of criminal fraud and civil fraud is controversial. Except for the determination of the prosecution standard of the amount of crime, the understanding of each city is not uniform when handling cases. The same case may be identified as obtaining loans by deception in a certain place, but it is identified as ordinary civil fraud by a local case handling agency, disputes can be resolved through civil means. Situations like this where the identification standards are not uniform are often encountered when handling financial cases. The following summarizes the basic objective requirements for filing a case based on multiple cases of fraudulent loan crimes. 1. False financial statements, audit reports. Annual and quarterly written reports on the company's financial position and operations issued by an accounting firm or other financial audit firm. Whether the statements and reports submitted to the bank as the basis for the loan are consistent with the documents submitted to the tax department or retained in the accounting firm or audit company is a key part of the lawyer's review. The financial statements submitted by a company to the tax department are losses for the current year, and the financial statements submitted to the bank for the same period are a profit of more than 2000 million yuan, such statements are sufficient to identify as loan information fraud. Compared with the financial data, the difference is about 30%, which is not considered as false material. For example, the financial data submitted to the tax department made a profit of 1 million yuan in the current year and the bank data submitted was 1.3 million yuan. Such statements are not considered false and belong to reasonable financial data fluctuation. There are two common ways to issue false reports, one is to directly falsify, falsify the seal of a finance company or accounting firm, and directly produce false audit reports and other credit data. In addition, the lender conspires with the financial company. The financial company issues different reports. The one that is kept on file or submitted to the tax department is true, and the one that is provided to the bank is false. The financial company keeps a true report to avoid its own legal risks. When the relevant department checks, it will shirk the false report without knowing that it was forged by the lender itself, thus exempting it from liability. However, in judicial practice, most financial companies were held accountable for issuing false financial reports and were not spared. 2. The collateral and guarantee provided by the loan subject are falsified. (1) Fictitious collateral, material of the value of the pledge. The real market evaluation value of a shop along the street is more than 1200 million yuan, and the evaluation report submitted to the bank is more than 3000 million yuan. This assessment report is beyond the scope of market fluctuations and is fraudulent. (2) Concealing the fact that the collateral is mortgaged multiple times. (3) Fictitious guarantor, the guarantor uses false identity information and business information. The guarantor uses false identity information, which is easy to identify during the second verification, such as name, age, real occupation, etc. In the specific case practice, the main focus is on the real degree of information of the guarantee enterprise, the starting point is in the bank flow, registered capital, the actual business situation. In the process of small and medium-sized enterprise loans, a large part of the guarantee enterprises are shell companies, there is no actual operation, for such a situation must be verified and formed written evidence. 3. The fictitious use of the loan or the inconsistency of the credit funds with the actual use. (1) Fictitious sales contracts, supply and marketing contracts. Through investigation and evidence collection, it is initially understood that the loan subject has no real trading behavior. For example, a company's loan is used to purchase a large program-controlled exchange, through the investigation of the supply enterprise, it is found that the supply enterprise and the loan company are affiliated enterprises of the same actual controller, and the sales contract signed is a false contract, and there is no real transaction behavior. (2) The credit funds do not match their actual use. Transfer bank flow, pay attention to the direction of funds after the funds are decentralized, and focus on the flow from company accounts to individual accounts. For example, after a bank loan is made, the debtor will transfer the funds to several different corporate accounts, and then through the corporate account to the individual account, such a flow of funds is more likely to form direct evidence that the credit funds do not match the actual use. As to whether it is ultimately the job of the public security organs to find out where the money goes, lawyers can only provide clues, and the flow of credit funds is also one of the objective elements to distinguish between loan fraud and loan fraud. It should be noted that the above elements need to be available at the same time. For example, collateral and guarantees must reach an objective level of falsehood and forgery, and if the collateral is sufficient or the guarantee is true, even if the financial statements provided are falsified, in judicial practice the procuratorate will require financial institutions to exhaust civil means to realize their claims and will not initiate public prosecution. The public security organs find that there is a real mortgage guarantee and usually will not be investigated as a criminal case. Evidence clues to be collected for criminal charges From 2017 to 2019, Shandong Province carried out the "Special Governance to Combat Malicious Evasion of Financial Debt", which loosened the objective elements of the above fraudulent loan acquisition. There are cases that show that a lender who has a full mortgage guarantee and uses false loan information to defraud a loan, causing heavy losses to the bank, is criminally punished for the crime of defrauding a loan. However, after 2020, it is difficult to unify the understanding of various places, and the lack of unity of understanding of the elements of crime is one of the sticking points that commercial crime is usually difficult to file. This requires lawyers to make great efforts in preparing evidence materials, turn clues into professional evidence, and help public security organs to collect criminal evidence. The reported materials should be detailed and complete to form an evidence chain. When the public security organs file a case for review, the evidence materials are clear and clear, which is easy to file a case for investigation. In judicial practice, in order to severely punish malicious evasion of financial debts, it is necessary to assist the public security organs in actively carrying out evidence collection and fixation work, and the following clues of evidence need to be collected: First, the details of the loan subject. Company registration information, legal person identity certificate, husband and wife identity information, important is the actual controller information. This kind of information is kept in detailed files when handling bank loans and needs to be copied into a book. Among them, the information of the actual controller is the most important, and many company legal representatives are not the same person as the actual controller. The real lender and administrator are not natural persons reflected in the business registration certificate. The handling of criminal cases is different from civil cases. The loan contract in civil cases pays attention to relativity. Whoever signs the contract will be responsible. If additional contract parties need to submit corresponding evidence. In criminal cases, the information of the actual controller provided by the lawyer as a clue to the case needs to be identified in detail by the judicial department according to its functions and powers, so the actual controller's retreat behind the scenes may avoid civil legal risks, but it is not feasible on the road of criminal investigation. The public security organ will investigate the relationship between the industrial and commercial registration legal person and the actual controller, and take the actual controller as the object of investigation. Therefore, lawyers should fully communicate with bank credit managers in the process of handling cases. In general, credit managers have a better understanding of real lenders. The second is the basic information of the loan. Loan contracts, sales contracts, guarantee contracts, bank flow, financial statements, mortgage warrants, various appraisal reports, bank due diligence information, etc. Financial Statements. In the event of a bad bank credit, the lawyer should first remind the bank to check whether the tax department is consistent with the financial statements provided to the bank credit information, even if the discrepancy is within a reasonable range. This is the most critical link. Sales or supply and marketing contracts. The key to the verification of these two materials is the visit and investigation of lawyers or bank staff. The clearer the investigation of the details of the false contract, the more detailed the evidence clues provided to the public security department, and the smoother the case. One is whether there is a real supply company, the other is whether there is a real goods transaction, and the third is who is the actual controller. The most critical breakthrough point is the bank flow of the supply company. The real company's operating capital flow is very complicated, while the false company's operating capital flow is very simple. Only the capital flow information for loans is easy to identify. Assessment report. The verification of the appraisal report needs to be combined with collateral (in the case of collateral), such as real estate, which requires information on the property, market prices, and field visits to surrounding properties to clarify the actual price. Compare the assessment report to assess its true extent. In a large number of loan materials to focus on the investigation of the above three, the lawyer to prepare all the evidence materials, write a catalogue of evidence, collated into a systematic case file. The next job is to draft the report materials in the name of the bank. The first is the reporting material, and the second is the analysis report or legal opinion. Reporting materials. The reporting materials do not have to be cumbersome and complicated, with the actual loss of the bank as the result, the lender will use what false means to defraud the bank loan process to the time axis written statement. Strive for clarity and clarity so that the handling department at a glance, understand the full picture of the case. Case analysis report, legal opinion. The objective facts of the case investigated will be combined with the constituent elements of the specific charges in the criminal law to analyze the legal relationship and form a systematic written opinion. From the perspective of judicial practice, the lawyer's report is a legal idea provided to the case handling department. Through the written report, the public security organ can understand the legal picture of the case. Concluding remarks In the end, the lawyer with professional criminal legal literacy is good at in the general civil loan contract dispute case, to help banks and other financial institutions to identify the malicious evasion of financial debt lenders, through the public security organs to severely fight.

2021-11-19

Viewpoint | Research on selective law enforcement and its governance

Text In the early stage of economic development, due to the imperfect system of various systems and frequent environmental changes, the consequences of economic reform were extremely unpredictable. In order to deal with the problems in the process of law enforcement, the state adopted selective law enforcement, that is, the law enforcement subjects carried out different law enforcement according to different circumstances and objects, which flexibly made up for the disadvantages of rigid legal constraints. With the continuous improvement of the market economic system and the continuous improvement of the rule of law construction system, the unpredictability of the consequences of the reform has declined. However, with the deepening of the reform, the disadvantages of selective law enforcement continue to highlight, such as excessive discretionary space, abuse of public power, illegal law enforcement and so on. Zhu Zhengfu, member of the National Committee of the Chinese people's Political Consultative Conference and vice president of the all China Lawyers Association, said that if selective and profit-seeking law enforcement is not curbed, entrepreneurs are very vulnerable to the abuse of judicial power. Therefore, measures should be taken to prevent unreasonable selective law enforcement. Analysis of Advantages and Disadvantages of 1. Selective Law Enforcement 1. The positive impact of selective law enforcement: it is conducive to saving judicial costs. The market environment is extremely unstable, and legal adjustments alone are not enough to solve problems flexibly. The optimal law enforcement theory of economics verifies the advantages of selective law enforcement, that is, the law enforcement behavior with excessive law enforcement cost should be solved in a random way, so that the punishment intensity is inversely proportional to the random probability. In the process of law enforcement, our country meets the practical needs through the change of law enforcement behavior and law enforcement intensity. On the one hand, when dealing with emergencies, law enforcement agencies achieve the best law enforcement effect by adopting law enforcement methods that adapt to emergency situations; on the other hand, the lag of laws is often not enough to solve practical problems. When laws, regulations, and rules are not clearly defined, law enforcement agencies can exercise discretion and adopt appropriate solutions and staffing to solve them in a timely and effective manner, to make up for the limited legal rules of the rapid development of the society can not make changes in time; to solve the sudden problems in time. The occurrence of sudden social problems has the characteristics of great influence, rapid spread and urgency, which requires law enforcement agencies not to blindly follow the articles of association to solve them step by step, but should take different intensity of law enforcement means in combination with specific situations. For example, in 2004, three types of cases of gangs, violence, and theft occurred frequently. For this reason, severe crackdowns were taken against these three types of serious crimes; in 2007, severe crackdowns were also taken against the frequent occurrence of bicycle theft; In 2010, there were more criminal cases, focusing on individual extreme violent crimes, gun-related crimes, and "pornography, gambling, and drugs" crimes. Therefore, in view of the criminal situations in different historical periods, the state has adopted a severe crackdown policy to deal with prominent harmful behaviors. 2. Negative impact of selective enforcement: impaired legal authority. Locke pointed out in "On Government" that all the powers of the government, since they are only for the happiness of society, should not be arbitrary and happy, but should be exercised according to established and published laws. Selective law enforcement is not arbitrary law enforcement, it still has to exercise its powers within the framework of the law. However, with the expansion of law enforcement power, "cross-border implementation of authority" has become the norm. Law enforcement officers simply rely on subjective likes and dislikes to deliberately distinguish law enforcement, and the phenomenon of "violating the rule of law for the sake of the rule of law" appears. Law is normative and deterministic. In the field of administrative law, law enforcement agencies first follow the principle of legality and pursue the purpose of "law cannot be authorized. If there is universal selective law enforcement, the authority of the law will be damaged, citizens' belief in the rule of law will be missing, which is not conducive to the construction of a country ruled by law; the credibility of law enforcement agencies will be damaged. With the increase of unreasonable selective law enforcement, power rent-seeking behavior appears on a large scale. Those with public power use power as a bargaining chip to seek their own economic interests, or use power as capital to participate in commodity exchange and market competition for monetary and material benefits. This kind of behavior seriously hinders the construction of the rule of law in the country, leads to the corruption of power, the contradiction between social equality and the distribution of interests. Analysis of the Current Situation of Selective Law Enforcement in 2. 1. Administrative discretion is too large. The primary manifestation of selective law enforcement is the excessive expansion of discretion. Because our country's law does not clearly stipulate the limits of the administrative agency's exercise of discretion, it leads to different judgments in the same case and the current situation of unfair law enforcement. In 2006, in the case of administrative punishment for industry and commerce in Wuxi County, Wuxi County Administration for Industry and Commerce issued a fine of 10000 yuan, 30000 yuan and 80000 yuan to the punished persons Wang Mou, Tan Mou and Liao Mou with the administrative punishment decision No. 145 of (2003) Xi Industry and Commerce Penalty. Afterwards, Liao filed an administrative lawsuit with the Wuxi County People's Court on the grounds of the same act and different penalties. The case caused public dissatisfaction with the opaque law enforcement process and unfair law enforcement results of law enforcement agencies. Although according to the law, the amount of punishment given to Liao by law enforcement agencies is within the scope of authority, but the result of different judgments in the same case reflects the discretion of administrative agencies. Excessive power provides rent-seeking space for law enforcement and damages the public's trust in law enforcement results. 2. Administrative law enforcement supervision is not in place. Selective law enforcement reflects not only law enforcement issues, but also legislative issues. But at present, whether it is the court, the procuratorate, or the higher authorities, the supervision of law enforcement is still not in place. For example, with the emergence of the current situation of "replacing punishment with punishment", administrative organs are often driven by economic interests to avoid criminal punishment by being in administrative punishment. On the one hand, it is easy to cause criminals to escape legal sanctions, on the other hand, it makes the law enforcement environment tend to be bad, reflecting the procuratorial organs' ineffective supervision of administrative law enforcement. Therefore, the procuratorial organs should carry out special actions to prevent "punishment instead of punishment. Not only the procuratorate, but in administrative litigation cases, the court should also stop the inaction and chaos of the administrative agency on the basis of ascertaining the facts. Analysis of Typical Cases of 3. Selective Law Enforcement 1. Haikou "most beautiful illegal construction" case. In June 2016, Hainan Province issued the "Three-Year Action Plan for Rectifying Illegal Buildings in Hainan Province" to demolish illegal buildings. However, after being reported by the masses, a mansion in Xiuying District of Hainan Province was demolished. According to the investigation, the illegal mansion was designated as an illegal building as early as July 2013, and the authorities also issued a demolition notice, but it was not implemented. In 2015, a reminder was also issued to inform the demolition as soon as possible, but the illegal mansion still exists. Local villagers reported that the residents of the mansion were national civil servants, and the family ran the quarry, with wealth and strength, which led to the protection of law enforcement officers with their officials, collusion between officials and businessmen, and illegal buildings have not been demolished. Illegal construction has always been a typical case of selective law enforcement by law enforcement personnel, usually because of the strong background of the violator, the law enforcement personnel selectively enforce the law and evade legal responsibility, and finally the illegal construction becomes the "landmark and most beautiful illegal construction". 2. Japanese Keiichiro Kheyuan lost his car. In February 2012, when Heyuan Keiichiro was playing in Wuhan, his bicycle worth 10,000 yuan was lost. The Wuhan police actively called in the police force and solved the case in three days, which aroused many people's praise. Subsequently, many car owners have reported to the police, asking to find the vehicle, but the Wuhan police ignored. In this case, for similar Qing Festival, they were treated differently because of different objects, which reflected the obvious selective law enforcement characteristics of law enforcement officers. 4. the Governance Measures of Improving Selective Law Enforcement 1. Improve legislation and limit the boundaries of administrative power. The essence of selective law enforcement lies in the blurring of the boundaries of discretion and the strong subjectivity of law enforcement behavior. Therefore, only by limiting the boundaries of discretion can we fundamentally curb unreasonable selective law enforcement. The scope of administrative law is wide, but the legal provisions are not clear. Therefore, we should improve the administrative legislation and define the conditions for the exercise of administrative discretion. On October 23, 2014, the Central Committee of the Communist Party of China pointed out in the decision on several major issues of comprehensively promoting the rule of law, establishing and improving the benchmark system of administrative discretion, refining and quantifying the standards of administrative discretion, and standardizing the scope, type and range of discretion. Therefore, administrative rules should be refined so that law enforcement can be traced. 2. Strengthen the supervision of administrative power. As mentioned above, selective law enforcement has the disadvantages of lax supervision, so we should strengthen its supervision. Specifically, it includes the internal supervision of administrative organs, judicial supervision and social supervision. If you are not satisfied with a specific administrative act, you can file a reconsideration with the higher authority, which shows that the higher authority has a natural supervisory function over the lower authority. Lower-level agencies should regularly submit statements on their work tasks, which should be reviewed by higher-level agencies to reduce the exercise of discretionary power; courts and procuratorates should supervise administrative actions and supervise administrative actions and law enforcement personnel; at the same time, strengthen public opinion supervision. The disclosure of most of the above-mentioned cases is a controversy caused by the dissatisfaction of the public. Therefore, the public and the media should supervise the law enforcement behavior. Although selective law enforcement has played a positive regulatory role in the period of economic transition, with the continuous improvement of the market economic system and the strengthening of the awareness of the rule of law, selective law enforcement has gradually emerged with the disadvantages of excessive discretion and private public power. Selective law enforcement such as "strict crackdown" and "law enforcement movement" that exert positive effects should be implemented. However, my country's current selective law enforcement has disadvantages such as excessive administrative discretion and inadequate administrative law enforcement supervision. It can be seen that selective law enforcement seriously hinders the construction of the rule of law. To this end, we should control selective violations, improve legislation, limit the boundaries of administrative power, strengthen the supervision of administrative power, and improve the quality of law enforcement personnel. Only in this way can we ensure the legitimacy and rationality of administrative actions.

2021-11-19

Viewpoint | Analysis of the principle of trust protection in administrative law

Text The principle of trust protection embodies the goal of building a modern rule of law and maintaining the trust of citizens, and by analyzing the meaning of the principle of trust protection, the origin of theory and practice, the applicable conditions, we can find that it has important value in the administrative rule of law. However, at present, there are still some problems in the principle of trust protection, such as the concept of compensation and compensation is not clear, and the public interest and personal interest conflict. Therefore, China should continue to improve the principle of trust protection, so that the theory and norms of coordination. The meaning and requirements of the principle of trust protection. 1. The basic meaning of the principle of trust protection. That is, the government's actions or commitments to itself should be trustworthy and should not be changed at will. The principle of trust protection first appeared in China's administrative law in 1999 when Article 58 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the the People's Republic of China Administrative Procedure Law stipulated that the court made a judgment confirming that the administrative act was illegal and ordered the administrative organ to take corresponding remedial measures. The "Administrative Licensing Law" introduced the principle of trust protection for the first time. Article 8 stipulates that administrative licenses obtained by citizens, legal persons or other organizations in accordance with the law are protected by law, and administrative agencies shall not change the effective administrative licenses without authorization. If the laws, regulations and rules on which the administrative license is based are amended or abolished, or if the objective circumstances on which the administrative license is granted change significantly, the administrative organ may, in order to meet the needs of public interests, change or withdraw the administrative license that has been in force according to law. If property losses are caused to citizens, legal persons or other organizations as a result, the administrative organs shall compensate them in accordance with the law. In 2004, the State Council promulgated the "Implementation Outline for Comprehensively Promoting the Rule of Law", which reiterated that all administrative decisions must apply the principle of trust protection from the perspective of administrative law enforcement. 2. The requirements of the principle of trust protection. (1) Once an administrative act is made, it may not be revoked, annulled or changed at will without statutory reasons and through statutory procedures. (2) After the administrative organ has made an administrative act of granting benefits to the administrative counterpart, even if an illegal situation is found afterwards, as long as the illegal situation is not caused by the fault of the counterpart, the administrative organ shall not easily revoke or change it, unless such illegal administrative act will seriously damage the public interests of the state and society. (3) After the administrative act is made, if the laws, regulations, and rules on which the administrative act was made are modified or abolished afterwards, or the objective circumstances on which the administrative act was made have changed significantly, for the needs of the public interest. An administrative organ may withdraw, annul or change an administrative act it has already taken. (4) If the administrative organ cancels or changes its illegal administrative act, if this illegal situation is not caused by the fault of the relative, it shall compensate the relative for the losses suffered as a result. If an administrative organ withdraws, repeals or changes an administrative act legally made by it due to the need of public interest, if such withdrawal, repeal or change results in the loss of the relative, it shall also compensate the relative for the loss. The above four requirements reflect the necessary limitations of the principle of trust protection: 1. The abstract administrative acts of administrative organs do not have retroactive effect in principle. 2. The revocation of specific administrative acts shall be restricted. 3. The annulment of specific administrative acts shall be restricted. It can be seen that the application of the principle of trust protection reflects the constraints on administrative power and plays a key role in safeguarding the legitimate rights of administrative counterparts. The theoretical origin of the principle of trust protection. 1. The principle of legal stability. In EC law, the principle of trust protection originated from the principle of legal stability. The object of trust protection is the private trust in the continued state of the old law and the prevention of retroactive destruction of private behavior. According to the German legal philosopher H.Coing, the principle of legal stability includes two meanings:(1) the clarity of legal rights and obligations;(2) the stability of legal relations and legal states. Many German scholars also believe that the principle of legal stability has the dual significance of "legal peace" and "trust protection. In 1956, the High Administrative Court of West Berlin of the Federal Republic of Germany gave a living allowance to a civil servant's widow's judgment, which fully reflected the measurement of the public interest protected by administration according to law and the protection of private trust in the legality of administrative acts when there was a conflict between the principle of administration according to law and the principle of legal stability. In EC administrative law, the principle of legal stability played a pivotal role before the principle of reliance protection emerged as an independent administrative law in 1970. However, there are differences in focus between the two, with the principle of trust protection focusing on private subjective trust and the principle of legal stability focusing more on the stability and peace of objective law. 2. The principle of good faith. The principle of good faith is closely related to the principle of trust protection. Article 8 of the administrative license law stipulates that administrative organs shall not change the effective administrative license without authorization, which also reflects the specific connotation of the principle of good faith. Some scholars believe that the principle of good faith is the "imperial clause" of civil law, while civil law belongs to private law. The principle of trust protection is the basic principle of administrative law, while administrative law belongs to public law, and Article 8 of the Administrative Procedure Law of Taiwan region of China stipulates the two principles separately, which is not confused. Based on this, the principle of good faith should not be used as the theoretical source of the principle of trust protection. However, from the perspective of general legal principles, the principle of good faith in private law can also be applied in public law, and, from the analysis of the meaning of the principle of good faith, it itself has the importance of trust. Therefore, the principle of good faith can be used as the theoretical source of the principle of trust protection. 3. Basic rights guarantee theory. There are two theories in the theory of basic rights protection, the property right theory and the freedom right theory. The former argues that the Constitution guarantees immunity from infringement of a citizen's rights, whether that right is future or retroactive. These guarantees can be realized through property rights and expropriation compensation. For example, Article 8 of my country's Administrative Licensing Law stipulates that if property losses are caused to citizens, legal persons or other organizations, the administrative agency shall provide compensation in accordance with the law. The state should compensate for the damage caused by relying on the old law. The latter believes that trust protection is the embodiment of the right to protect freedom, people can demand that the exercise of administrative acts shall not infringe on individual rights, and should guarantee the possibility of people to realize their own acts by relying on the law. Therefore, the principle of trust protection requires that the administrative agency revokes or annuls the previously published provisions in force without prejudice to the rights of citizens who have relied on the provisions. The practical source of the principle of three faith-based protection. 1. Germany. The principle of trust protection originally originated in the Federal Republic of Germany, and the 1956 decision of the High Administrative Court of West Berlin of the Federal Republic of Germany triggered a discussion of trust protection in administrative law. Articles 48 and 49 of the Federal Procedural Code provide for the ex officio revocation of the administrative treatment of illegal grants and the ex officio repeal of the administrative treatment of legal grants, respectively. In addition, Germany, in stipulating the scope of application of the principle of trust protection, provides for the assurance of the effectiveness of the administrative plan, on the one hand, to ensure the stability of the individual's expectations of the administrative plan; on the other hand, according to the local political, economic and environmental situation, the administrative plan should be adjusted in due course. 2. Great Britain. The meaning of the UK's legitimate expectations is equivalent to the principle of trust protection, and the 1987 Ruddock case made the UK gradually pay attention to the principle of legitimate expectations. If the behavior of public institutions makes individuals expect it, if they want to change it, they need to listen to their opinions, unless the public interest suffers significant damage. In addition, English law provides for the principle of estoppels, which has a similar meaning to the principle of legitimate expectations and embodies the principle of trust protection. 3. United States, France. Although the United States and France do not specify the principle of trust protection, they are expressed through other principles. The principle of trust protection in the United States is through mutual trust and loyalty between administrative agencies, limiting the effective date and retroactivity of regulations, and prohibiting the performance of confession. France expresses the principle of trust protection through the protection of vested interests and the non-retroactivity of administrative law. IV. Conditions for the application of the principle of trust protection 1. Basis of trust. The basis of trust is the premise of trust protection, that is, the administrative acts of administrative organs that lead to trust, including concrete administrative acts and abstract administrative acts. Most scholars believe that the principle of trust protection should run through the whole process of administrative acts, in addition to invalid administrative acts, whether it is specific administrative acts or abstract administrative acts, whether it is legal administrative acts or illegal administrative acts, even if the administrative organs continue administrative practice, administrative inaction, should reflect the principle. 2. Reliance performance. The performance of trust refers to the disposition of the administrative counterpart due to the administrative act made by the administrative organ, including the disposal and use of property. German courts have given a broader interpretation of the act of disposition, as long as the administrative counterpart makes profound and lasting changes to the property, including acts of omission, the administrative organ is not allowed to revoke. 3. Legitimate trust. Article 48, paragraph 2, of the Federal German Code of Administrative Procedure lists three specific situations in which the principle of trust protection does not apply. Based on this, the principle of trust protection should be applied under the premise that the administrative counterpart is not at fault. It should be clear that the judgment of legitimacy, there are different views in theory, some scholars think that personal interests should be compared with the public interest, when the personal interest is greater than the public interest is justified; some scholars believe that legitimate not only requires legitimate expectations, but also still believes that the realization of the expectation should be guaranteed after the administrative organ changes its strategy. However, public welfare is not the only criterion for the establishment of trust protection, even if there is an urgent public interest, trust protection can still be considered, but the way of protection is changed to property compensation. V. Ways of protection of the principle of trust protection Theoretically, there are two ways to protect the trust interests of the relative person, survival protection and property protection. The former refers to the legal relationship between the subjects of administrative legal relations arising from administrative acts, regardless of whether they are legal or not, to stabilize the legal state trusted by the administrative counterpart. Two kinds of protection for the specific situation is different, the protection effect is not the same. 1. Survival protection. This protection reflects the legislative intent of the principle of trust protection, that is, to maintain the relative's trust in the appearance of the law. There is a difference in the way of survival protection when distinguishing between legitimate and illegal acts of benefit. For legitimate acts of benefit, the administrative organ shall uphold the principle of administration according to law and the principle of trust protection to survive its effectiveness; for illegal acts of benefit, if the trust is worthy of protection, it shall continue to survive; if the trust is not worthy of protection, in accordance with the principle of administration according to law, it shall be revoked and compensation for the losses of the counterpart. 2. Protection of property. Article 49 of the German Administrative Procedure Act stipulates that when an administrative organ annuls an administrative act of benefit, it shall, on the application of the counterpart, compensate the property disadvantage suffered by him or her as a result of his or her reliance on the deterministic force of the administrative act. Article 120 of the Administrative Procedure Law of the Taiwan Region stipulates that after the illegal administrative act of granting benefits has been revoked, the revocation authority shall provide reasonable compensation for the property damage suffered by the beneficiary as a result of relying on the disposition. The amount of compensation shall not exceed the benefit of the beneficiary as a result of the existence of the disposition. In the mainland, a distinction is made between compensation and compensation, and in view of the illegal act of granting benefits, the administrative organ shall give reasonable compensation to the counterpart when revoking the administrative act; in view of the legitimate administrative act of granting benefits, if the specific circumstances change, the relative shall not be abolished, the relative shall be compensated. The above two ways are the more common ways of protection, but the principle has also been questioned by many scholars, focusing on the uncertainty of the scope of compensation, increasing the instability of the application of the law. For example, while frequently applying the principle of trust protection, the European Court of Justice has held that illegal benefits should be revoked in accordance with lawful administration, especially for enterprises. Its judgment is based on the view that the public interest takes precedence over the individual interest, but this view undoubtedly shelves the principle of reliance protection under article 48 of the German Administrative Procedure Code. Professor Schwartz commented: "Although the EU Court of Justice is also aware of the concept of trust protection, its use of this principle is more limited than that of German domestic law." Therefore, when our country makes reasonable compensation, the amount of compensation cannot be less than the benefits obtained by the relative person as a result of the administrative act. Six norms of the application of the principle of trust protection. There are still problems in the principle of trust protection in our country. First of all, the boundary between administrative compensation and compensation is blurred. China's Administrative Licensing Law compensates and compensates for the losses caused to the administrative counterpart by the revocation or annulment of administrative acts by administrative organs. However, the standard of compensation and compensation is not defined, and there are no specific rules for operation, so in practice, it is easy to lead to excessive discretion and damage the legitimate rights and interests of the administrative counterpart. Secondly, the comparative measurement of public interest and individual interest is unbalanced. The principle of trust protection solves the problems arising from the trust interests of the administrative subject and the administrative counterpart, which to a large extent involves the public interest. The "Administrative Licensing Law" stipulates that based on trust and protection administrative agencies shall not modify or abolish administrative acts that have taken effect, but they can do so for the needs of the public interest and compensate the counterparty for damage. It can be seen that when faced with the loss of public interest, priority should be given to it. However, if the limits of the public interest are not well grasped, there will be acts of harming the rights and interests of the counterparty in the name of damage to the public interest. Therefore, the scope of public interest should be clarified, that is, facing the public, not a part of the group; the content is public; the nature is public. If the principle of trust protection is to play a role in the legal order of a country, a very important prerequisite is that the legitimate rights and interests of individuals are valued, rather than just an accessory to the public interest. In view of the problems existing in the principle of trust protection in our country, our country should promulgate specific implementation rules to make clear, or promulgate the administrative procedure law, and regard the principle of trust protection as the principle of the whole field of administrative law. At the same time, the standards of administrative compensation and compensation should be clarified through clear procedural steps to avoid secondary damage to the administrative counterpart; the principle of trust protection is a means to solve the problems caused by the trust interests of administrative agencies and administrative counterparts. Correctly defining the scope of public interests is very important to protect private rights and interests. Therefore, in practice, it is necessary to fully consider the specific circumstances and reasonably define disputes. The principle of trust protection is an important principle in administrative law, which plays an important role in restricting administrative power and ensuring the interests of administrative counterparts. Referring to the provisions of the principle of trust protection in foreign countries, we can find that the principle has gradually been paid attention to by law and a perfect legal system has been established. However, the principle of trust protection in China is still in the stage of theoretical exploration, and the specific concept and balance of interests should continue to be improved.

2021-11-19

Viewpoint... Creditors face legal risk prevention in bankrupt enterprises.

Introduction In recent years, more and more enterprises have been ruled by the people's court to enter bankruptcy proceedings. Because early bankruptcy cases are not common, all parties often fail to take the best measures to deal with enterprises on the verge of bankruptcy, resulting in frequent risks after bankruptcy. Combined with his own bankruptcy management experience, the author combs and discusses the legal risk prevention of bankrupt enterprises from the perspective of creditors, with a view to enlightening readers. Text Under the insolvency law, ordinary creditors are usually faced with partial liquidation and partial loss after the order of liquidation of ordinary insolvency claims. At the same time, existing laws also establish systems such as retention of title, security interests, in-transit subject matter retrieval and debt set-off, which can enable individual creditors to obtain preferential settlement from losses. Therefore, when a creditor discovers that a claim has been formed against an enterprise on the verge of bankruptcy or bankruptcy, it should be sorted out in a timely manner to avoid the loss of priority rights. 1. Title retention system Article 641 of the Civil Code and other relevant laws establish a retention-of-title system, in which the parties may agree that in a commodity transaction in which the ownership of property is transferred, the other party retains its ownership of the property after the owner of the property has transferred the possession of the subject matter, and the transfer of ownership occurs only after the completion of certain conditions. Article 38 of the bankruptcy law stipulates that after the people's court accepts the bankruptcy application, the property in the possession of the debtor that does not belong to the debtor may be retrieved by the right holder of the property through the administrator. Thus, when an enterprise is on the verge of insolvency and must trade and is a seller, creditors can add a retention-of-title clause to the contract to avoid insolvency losses. 2, the real right security system. Articles 386, 387, 394, 425 and 447 of the Civil Code and other relevant laws establish a system of security interests, whereby the security interest holder shall, in accordance with the law, enjoy the right to priority compensation for the secured property in the event of the debtor's failure to perform the debts due or the realization of the security interest agreed upon by the parties. Article 109 of the insolvency law provides that a right holder with a security right in the particular property of the insolvent person has a priority right to payment of that particular property. Therefore, when faced with the imminent bankruptcy of the enterprise and must deal, creditors strive to establish a security interest on the basis of claims. After the debtor's bankruptcy, creditors should pay attention to whether there is an organic lien on the debtor's property, in addition to sorting out the mortgaged property and the pledge in a timely manner. (3) Other systems In the subject matter retrieval system, article 39 of the bankruptcy law stipulates that when the people's court accepts the bankruptcy application, the seller has shipped the subject matter of the sale to the debtor as the buyer, and if the debtor has not received and has not paid the full price, the seller may retrieve the subject matter in transit. Debt set-off system, article 40 of the bankruptcy law provides that creditors who have debts to the debtor before the bankruptcy application is accepted may claim set-off from the administrator. Concluding remarks The author sorts out the legal risk prevention measures that creditors should take in different time periods, which can be summarized as follows: when the debtor's credit rating drops, creditors should focus on the retention of title and real right security; After learning that the debtor is bankrupt, creditors should sort out whether there is any object in transit and possession of the debtor's assets. In the declaration of bankruptcy claims, creditors should sort out whether there are various priorities.

2021-11-19

Viewpoint | Can't use Pfizer's prescription for free, learn Pfizer's contract for free

A wave of epidemics in the world again, double eleven express collection are uneasy, when is the head it, see what new progress the pharmaceutical giants have. On November 4, the world's first new crown oral antiviral drug, which can significantly reduce the risk of hospitalization or death of new crown patients by about 50% (phase III clinical mid-term data), was approved for marketing in the UK. On November 5, Pfizer disclosed the phase II/III clinical trial mid-term data of new crown oral antiviral drug PAXLOVID(PF-07321332 + Ritonavir). The results showed that the risk of hospitalization or death of patients was reduced by 89%, this inner volume is pleasing to the eye. Not yet, on November 16 Pfizer issued a statement that it had signed a patent license agreement with MPP and that Pfizer's new crown oral drug, once approved by the regulatory authorities (Pfizer announced that it had submitted an application to the U.S. Food and Drug Administration for an emergency use authorization for its experimental anti-new crown virus oral drug PAXLOVID. The U.S. Food and Drug Administration's advisory board is scheduled to meet on November 30 to discuss the application), will authorize the pharmaceutical company to produce its new crown oral drug generic, and, as long as the new crown outbreak is still listed by the World Health Organization as a public health emergency of international concern, will exempt all national drug sales patent and technology royalties covered by the agreement. Seeing this, are the children going to start preparing their bags to make up for those fallen global trips? wait a minute, in the same mood, the author first looked at this glittering holy agreement, found that China is not in the authorized sales area, it is estimated that one-to-one license agreement negotiations are not in the day and night. All right, since you can't use Pfizer's prescription for free, then learn Pfizer's contract for free (please download it from MPP website for students who like to collect various templates, knowing that you don't have time to find it, the link is posted here: https://medicinespatentpool.org/licence-post/pf-07321332/) First, look at the parties to the contract. The licensor PF PRISM HOLDINGS B.V. is a private limited company (private limited company) registered in the Netherlands. This Pfizer is not another Pfizer, but it is also stated in the preamble that "this Pfizer" or its related parties (Affiliates) hold patent rights and licensed technology, and "this Pfizer" has the right to grant a license. This kind of operation will inevitably make people whisper. Don't panic first. If Pfizer plays tricks against the background, it will do more harm than good. If you know who this MPP is, you will be more relieved. The full name of MPP MEDICINES PATENT POOL FOUNDATION, registered in Switzerland, the official website introduces itself as "a United Nations-backed public health organization working to increase access to, and facilitate the development of, life-save medicines for low- and middle-income countries", a public health organization backed by the United Nations, whose duty is really sacred, and comes from a noble family (funder is Unitaid mechanism-international assistance), it seems that those with PP are not ordinary roles. Although the possibility of Pfizer playing tricks on this agreement is extremely low, in general transaction contracts, small partners must pay attention to the fact that multinational companies generally use branches and subsidiaries to sign contracts with counterparties for reasons such as risk isolation and strategic layout. The due diligence and performance ability of the contracting entity have become necessary steps in risk management. Second, look at the contract jurisdiction law and dispute resolution clauses. The governing law of the agreement is the new york law of the United States (article 8.5 of the agreement), and it is subject to all applicable economic sanctions and export control laws (including the trade control law of the United States and article 4.8 of the agreement). Perhaps MPP respects Pfizer's good deeds very much and gave Pfizer the case in the negotiation of the contract. There are many differences in the culture, thinking and business habits of the parties in cross-border transactions. The jurisdiction law of a cross-border contract determines the big rules of the game between the two parties, and often reflects the negotiating position of the two parties to the contract. With the improvement of China's international status and the improvement of the rule of law, the author sees more and more that Chinese law has become the jurisdiction law in the foreign-related contracts signed by the Chinese side, and the importance of Chinese lawyers in international transactions will naturally rise. As foreign-related lawyers, their gratitude to the country, the party and the people comes from the bottom of their hearts. Then there is the legendary "midnight clause"-the dispute resolution clause (it is common for cross-border commercial negotiations to be put last, and it is common for midnight to be put on the agenda, but it is so important that even when it comes to midnight, the parties will not give up the fight). Will such an official and public welfare agreement be mentioned here? No, they used 7 paragraphs and 556 words to make a detailed agreement on the dispute resolution procedures and methods of both parties (see Article 8.6 of the agreement for details). The whole mechanism of negotiation-senior management consultation-non-binding mediation-ICC arbitration in new york, USA (arbitration language, arbitration seat, composition of arbitration tribunal, information disclosure, cost bearing, judicial review, injunction restriction, exception to patent infringement litigation) is closely fitting and worthy of careful taste. Finally, look at the main text of the contract. The contract has 89 pages and 34127 words in total. It really takes some effort to look at it carefully. MPP has carefully refined the core terms with the 268-word Key Features. As a public organization with such a strong sense of service, let's not waste this kindness. The author is also lazy and a kind porter. The translation in Chinese and English is as follows (if the translation is not allowed for medical majors, please ask experts to make bricks for correction): Note: The list of 95 countries in the authorized sales area is listed in Schedule 3 of the agreement, all of which are "bitter children" in dire straits ". Benefiting from the policy requirements of some overseas institutions and organizations on information disclosure, and moving our hard-working little hands, many excellent international transaction contracts are available free of charge. Just like this contract drafted by lawyers from international organizations and world pharmaceutical giants, there is no doubt about the level and quality. It is also valuable to convert it into hourly rates (500-1000 US dollars per hour for weak speculation) and is a valuable material for us to learn. Although I stole a lazy one here, I will make up for it later. If there are any special and wonderful clauses, I will share them with you later. There is a long way to go for the growth of foreign-related lawyers. I will go up and down to search for them. I look forward to studying, exchanging and discussing these excellent models with more colleagues. We will also introduce more foreign-related legal study materials, remove their dross and extract their essence for our use and add a handful of firewood to the forging of foreign-related talents.

2021-11-18