Viewpoint. Preservation creditors file a third-party revocation lawsuit against the effective judgment of another case, an outsider's execution of the objection, or the path choice of applying for a retrial.

Question raised In September 2019, Company A applied to the court to preserve Company B's $12 million maturity claim against Company A. In January 2020, the court entered into a judgment determining that Company A has a monetary preservation claim of $10 million against Company B. In November 2019, Company B pledged $46 million of its maturing claims on Company A to Company C and registered a pledge of accounts receivable. In March 2020, the court issued a judgment in the case of Company C v. Company B and Company A's accounts receivable pledge dispute, determining that Company C has a secured monetary claim of 40 million yuan against Company B and Company A. After the accounts receivable pledge dispute case entered the enforcement procedure, Company A believed that as a creditor who preserved the monetary creditor's rights, it could not exclude the enforcement of the secured monetary creditor's rights. It was meaningless to file an enforcement objection and an enforcement objection lawsuit, nor could it file a third party's cancellation lawsuit. At the same time, Company A also believes that the judgment of the accounts receivable pledge dispute is correct, and as an outsider, it cannot apply for a retrial of the effective judgment. Therefore, Company A can only object to the court's enforcement action, the enforcement court rejected Company A's objection to stop the enforcement action, and then the higher court rejected Company A's application for reconsideration. As a preservation creditor, can Company A defend its legitimate rights and interests by opposing the effective judgment of another case through a third party's revocation, an outsider's execution of an objection, or an outsider's application for a retrial? Problem reasoning (I) the third person to withdraw the action 1. Whether the preservation creditor is the qualified plaintiff of the third party's revocation. (1) Negative views. The Interpretation and Application of the Minutes of the National Court Civil and Commercial Trial Work Conference published by the People's Court Publishing House in December 2019 on Article 120 of the Minutes of the Conference: Preservation will deprive or restrict the right of ownership, use, income and disposition of the executed person, and at the same time the applicant shall have priority in the distribution of the proceeds from the disposal of the preserved property. The creditor's right to priority payment is not a substantive right to the seized assets. The outsider cannot participate in the original trial litigation in the name of the seizure person, so he or she cannot file an avoidance action in the name of a third party. Supreme People's Court Bulletin Case (2017) Supreme Law Minzong No. 319 Civil Ruling Judgment Summary: According to Article 56 of the Civil Procedure Law, the subject who has the right to bring a lawsuit for revocation by a third party shall be strictly limited to the two categories of third parties with independent claim and without independent claim as stipulated in the first two paragraphs of this article, the subject of the right to bring a third-party revocation action cannot be extended to outsiders with ordinary claims other than the two types of third parties stipulated in Article 56 of the Civil Procedure Law. Ordinary creditors have a certain de facto relationship with the original case in terms of whether the claim can be realized, but this de facto relationship is different from the legal interest. Ordinary creditors do not belong to the third party without independent claim under Article 56, paragraph 2, of the Civil Procedure Law. It can be seen that the Supreme People's Court has strictly limited the plaintiff's qualifications for filing a third-party revocation suit, and generally does not allow ordinary creditors to file a third-party revocation suit, except for the circumstances stipulated in Article 56 of the Civil Procedure Law and Article 120 of the Minutes of the National Court's Civil and Commercial Trial Work Conference. (2) Affirmation of opinion. The article "Judgment Criteria of" Case Handling Results Have Legal Interests with Him "published in the Minutes of the Judges' Meeting of the Second Circuit Court of the Supreme People's Court (Series 2) published by the People's Court Publishing House in April 2021 holds that after the general creditor applies to the court to seize the property of the executed person, the seized property belongs to the property that cannot be disposed of according to the property law and relevant provisions of enforcement, however, due to operational reasons or internal working procedures of the institution, the executed person establishes a mortgage on the seized property and confirms through a mediation letter that others can exercise the mortgage, and the general creditor has a" legal interest "in the case of the executed person and the other person's lawsuit to confirm the mortgage". The latest view of the Supreme People's Court is that there is a conflict of civil rights between the creditor who applies for court preservation of a specific property and the right holder who has other civil rights in the specific property, and there is a legal interest. A third party without an independent claim right to file a third party revocation lawsuit. 2. The preservation creditor is the qualified plaintiff of the third party's revocation. Article 24, paragraph 1, of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Enforcement by People's Courts [2020 Amendment] stipulates: "The transfer, burden of rights or other acts that hinder the execution of the property that has been sealed up, seized or frozen by the person subject to execution shall not be opposed to the person applying for execution." On November 4, 2004, the "Two Highs" judicial database "Understanding and Application of the Provisions of the Supreme People's Court on Seizure, Seizure and Freezing of Property in Civil Execution by People's Courts" interprets Article 26, paragraph 1 (amended to Article 24, paragraph 1, in 2020) of the Provisions: The Provisions have two meanings: First, the executed person transfers, sets mortgage, pledges, leases and other dispositions of the sealed property, the applicant for execution may still request the execution of the property on the basis of the claim contained in the execution basis, without being restricted by the above-mentioned disposition, and there is no need to consider protecting the interests of the counterpart of the disposition. Second, on the premise of not prejudicing the purpose of the seizure and protecting the interests of the executor, in order to protect the security of the transaction, maintain the order of the transaction and promote the transaction, the transfer, setting of burden or other acts that hinder the effect of the seizure by the executor are still valid. The Supreme People's Court's "Understanding and Application of Real Rights in the Civil Code" published by the People's Court Publishing House in July 2020 interprets Item (V) of Article 399 of the Civil Code (Item 5: Property sealed up, detained and supervised according to law shall not be mortgaged) and holds that the mortgage contract signed with the sealed up or detained property as the mortgaged property is still legal and valid, then when the property is movable property, in view of the adversarial registration of movable property mortgage, the mortgage is validly established from the date of the mortgage contract, at which point the question arises as to whether the mortgage takes precedence over the seizure of the claim. If the mortgage is considered to take precedence over the seizure of the claim, the function of the seizure and seizure system will be completely overhead. Therefore, even if it is considered that the mortgage has been established at this time, it cannot take precedence over the seizure and seizure of the claim. In my opinion, after taking protective measures against a particular property, the preservation creditor has a procedural distribution priority over the particular property, and any subsequent disposition of the particular property by the preserved person, even if confirmed by the effective judgment of another case, cannot be opposed to the preservation claim. When the same specific property is burdened with the preservation claim and other civil rights determined by the effective judgment of another case, the effective judgment of another case will inevitably affect the realization of the preservation claim, and there must be a legal interest between the preservation creditor and the effective judgment of another case. Company A's preservation of money claims and Company C's secured money claims are directed to Company B's accounts receivable, the two have a legal interest, Company A as the third party in the dispute over the quality of accounts receivable, is the third party to cancel the lawsuit of the appropriate plaintiff. Of course, whether Company A can finally file a third-party revocation lawsuit depends on whether it meets the relevant conditions stipulated by law and judicial interpretation. (II) Outsiders to Execute Objection 1. The effect of preservation does not mean that the creditor has a substantive right to preserve the property. According to article 24, paragraph 1, of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Enforcement by the People's Court (2020 Amendment), the preservation creditor has priority over the preservation of property, and the priority of this distribution procedure is not a substantive right to the preserved property. The Supreme People's Court's interpretation of Article 120 of the Minutes of the National Court's Civil and Commercial Trial Work Conference also holds that the preservation of the creditor's priority right to compensation is not a substantive right to the preserved property. On July 28, 2020, the first civil court of Shandong high court answered some questions about the trial of the execution objection lawsuit. it was believed that if the outsider filed the execution objection lawsuit to exclude the execution on the grounds of having legal priority such as security right of the execution object and priority compensation right of construction project price, the legal priority only affects the order of compensation and does not belong to the reason of excluding the execution, in general, the outsider should be informed of the resolution through the implementation of the objection review procedure or the allocation scheme objection procedure. 2. The preservation creditor's objection to the execution of the preservation of property and the objection will not be supported by the court. According to Article 24 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by People's Courts (2020 Amendment), the preservation creditor must provide evidence to prove that he has a substantive right to the preserved property and that the right can exclude enforcement. The procedural distribution priority enjoyed by the preservation creditor over the preserved property does not belong to the substantive rights stipulated in Articles 25 and 26 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court (2020 Amendment). The preservation creditor's objection and objection to the execution of the subject matter of the execution of the judgment in another case (preservation of property) will not be supported by the court. Company A, as a preservation creditor, does not enjoy civil substantive rights to Company B's due claims, and cannot file an execution objection and objection to the subject matter of execution, or the execution objection or objection of Company A will not be supported by law. (III) outsiders apply for retrial 1. Relativity of preservation effect. The interpretation of item (V) of article 399 of the civil code in the understanding and application of the real right compilation of the civil code, the interpretation of article 120 of the minutes of the meeting in the understanding and application of the minutes of the national court's civil and commercial trial work, and the article "the validity of the ruling on real estate seizure and the protection of bona fide third parties" in the minutes of the second court of civil trial of the supreme people's court-the court: the effect of preservation is relative, that is, any disposition of the property by the person being preserved shall not be opposed to the applicant for preservation, and shall not be entitled to disposition for the relative. Whether a counterpart who is not entitled to dispose of constitutes a bona fide acquisition under article 311 of the Civil Code (article 106 of the Property Law) depends on whether the preservation decision is publicized. The article "The Effectiveness of Real Estate Seizure Decisions and the Protection of Bona fide Third Parties" in the "Minutes of the Judges' Meeting of the Second Civil Trial Division of the Supreme People's Court-Tracing the Jurisprudence Behind the Decision" holds that the court's adoption of preservation measures on specific property does not ipso facto have the effect against bona fide third parties, unless publicity has been completed. If the preservation is not publicized, the person being preserved shall dispose of the property to be preserved, and the relative may still obtain civil rights in accordance with the system of good faith acquisition. In my opinion, if the preservation ruling has been publicized by posting a seal, public notice, registration or other means sufficient to let others know, there is no question of the good faith of the counterpart when he has no right to dispose of it, and the counterpart cannot obtain civil rights on the basis of the system of good faith acquisition. Conversely, the counterpart may acquire civil rights under the system of good faith acquisition. 2. The preservation creditor may apply for a retrial of another judgment that has not been heard in accordance with the rules of law in good faith. After the preserved person has no right to dispose of the preserved property to the counterparty, if the preserved person or the counterparty sues in another case to determine the relationship of civil rights and obligations between the preserved person and the counterparty, because the case involves the unauthorized disposition of the preserved property, the court In addition to hearing the case in accordance with the demands of the parties, it should also determine the facts and apply the law in accordance with the legal rules obtained in good faith. If the court does not hear the case in accordance with the legal rules obtained in good faith, there is a high possibility that there is an error or partial error in the effective judgment of the other case, and the preservation creditor may consider applying for a retrial of the effective judgment of the other case. Company A applied to the court to preserve Company B's 12 million yuan due creditor's rights to Company A. There was no public announcement, no seal could be posted, and no registration and publicity could be carried out. Company C could not know the fact that the accounts receivable were preserved through the public announcement. According to Article 61, paragraph 2, of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code, Company C shall verify with Company A the authenticity, legality and completeness of Company B's accounts receivable. Company C is not a bona fide third party under Article 311 of the Civil Code (Article 106 of the Property Law) if Company C fails to perform its verification obligations or is informed by Company A that the accounts receivable are preserved, and there may be problems with the dispute over the pledge of accounts receivable not being heard in accordance with the legal rules of bona fide acquisition. If there is a problem with the effective judgment of another case, Company A will have the opportunity to apply for a retrial, but it should meet other conditions stipulated by law and judicial interpretation. Questions for reference Since Company A does not enjoy civil substantive rights to the subject matter of execution, it cannot file an execution objection or objection to the subject matter of execution as an outsider, or the execution objection or objection of Company A will not be supported by law. According to Article 227 of the Civil Procedure Law and Article 423 of the Judicial Interpretation of the Civil Procedure Law, since Company A has not raised any objection to the subject matter of execution, it cannot apply for a retrial of the effective judgment of another case as an outsider. The entry into force of another judgment may be problematic if it is not tried in accordance with the rules of law obtained in good faith. Company A has the opportunity to file an action to revoke the effective judgment of another case as a third party without an independent claim. The third person's right of revocation is one of the paths of the right to relief, whether it works or not is another matter.

2021-11-10

Typical cases | Administrative dispute over schooling for children of migrant workers

Brief of the case With the continuous influx of migrant population into big cities, how to arrange the enrollment of migrant workers' children has become an important work of the local education administrative department. There are a large number of migrants in a certain district. In recent years, the influx of migrants has far exceeded the growth rate of educational resources. The number of school-age children of migrant workers has increased sharply, and the supply of educational resources is highly tight. In the face of such a constantly intensifying contradiction between supply and demand, the Education Bureau of a certain district, according to the requirements of its superiors and after full investigation, and drawing lessons from the practices of Beijing, Shanghai and other provinces and cities, implemented a quantitative allocation policy, so as to achieve scientific allocation and solve as many problems as possible for the children of migrant workers. However, the number of applicants in some schools in the jurisdiction far exceeds the enrollment limit, and some school-age children are unable to attend the registered schools, which causes the parents of the students to be dissatisfied with the education department, which leads to disputes or lawsuits. This case is a typical example. In this case, the plaintiff Zhang's household registration is located in a village in a county and lives in a residential area in a district. When Zhang reached the age of admission, Zhang's parents submitted to a district education bureau application materials such as household registration certificate, work certificate, residence permit, individual business license, etc., and a district education bureau made quantitative scores on the spot based on the materials submitted by him. The total score was 25 points, and Zhang's father signed the score confirmation form. Since then, a district education bureau announced that the enrollment score for the children of migrant workers in its jurisdiction was 19.5 points, and at the same time announced the remaining degrees of each elementary school. Zhang's father applied to a district experimental primary school through the Internet, and agreed to obey the overall adjustment arrangement of the Education Bureau in accordance with the principle of relative proximity if the school has real difficulties in receiving it. After the education bureau told Zhang's father that his daughter's quantitative score did not reach the admission score of 26.5 in a district experimental primary school, she needed to apply for the second time as soon as possible according to the vacant degree in the existing school, but Zhang's father refused to apply for the second time. In order to protect Zhang's right to receive education, a district education bureau transferred him to Tianmou Road Primary School according to the principle of relatively nearby enrollment. Zhang's mother signed the admission notice of Tianmou Road Primary School. Later, Zhang filed an administrative lawsuit with a district people's court, asking the court to revoke the decision of a district education bureau to transfer him to Tianmou Road Primary School and reschedule him to study in a district experimental primary school. The main reasons stated by the plaintiff are: 1. a district education bureau's quantitative scoring policy for the children of migrant workers is illegal; 2. schools are the main body of enrollment work, and a district education bureau has no right to make a decision on the plaintiff's application for admission; 3. the plaintiff lives in a district experimental primary school district, priority should be given to the plaintiff's enrollment nearby. A district education bureau violated the plaintiff's right to equal compulsory education. On September 1, that is, during the trial of the lawsuit, the plaintiff reported to Tianmou Road Primary School. Undertaking process After accepting the entrustment of the Education Bureau, the attorney carefully studied the case and prepared for the lawsuit from the following aspects: First, summarize the laws and regulations, normative documents and related policies related to compulsory education at the national, provincial, municipal, and district levels. In particular, focus on the regulations on the enrollment of children of migrant workers; second, collect relevant cases and articles from all over the country, find out the expert opinions or court judgments that support the claims of the education department; Third, straighten out the evidence materials, and divide the materials submitted by the plaintiff and the materials made by the education bureau and the school from the application for quantitative assignment to the period of enrollment, so as to prevent omissions. On this basis, carefully write the defense, and compile the above-mentioned materials in different categories, list the evidence, and submit them to the court within the prescribed time limit. Proxy opinion In response to the plaintiff's claims and the reasons for the prosecution, the attorney mainly replied from the following three aspects: 1. District Education Bureau has the right to formulate the enrollment policy of its jurisdiction in combination with the actual situation Article 6 of the Regulations on Compulsory Education in Shandong Province stipulates: "Compulsory education is implemented in a system of overall planning and implementation by the provincial people's government, organization and implementation by the municipal people's government divided into districts, and management by the county (city, district) people's government. The education administrative departments of the people's governments at or above the county level are specifically responsible for the implementation of compulsory education; other relevant departments do a good job in the implementation of compulsory education in accordance with their duties." Article 3 of the Municipal Education Bureau's "Opinions on School Enrollment at the Stage of Compulsory Education in a City" stipulates: "The children of migrant workers who apply for admission must bring the household registration certificate that proves the relationship between the children, the work certificate (employment contract, the" five insurance "payment document paid by the unit or the social security payment document paid by the individual, the business license, etc.), and the temporary residence permit (Residence permit), proof of current residence (rental) to the Education Bureau of the county (city) district where the current residence is located to go through the relevant procedures. The certificate of consent to go out to receive compulsory education issued by the education administrative department of the original place of household registration may be submitted after enrollment. The education administrative departments of all counties (cities) and districts shall, on the basis of investigation, publicize the remaining degrees of the school in advance, and actively explore the method of quantifying the admission conditions according to the education capacity, the remaining degree situation and the number of children of migrant workers who move with them, and give priority to arranging the children of migrant workers with higher scores to go to school." Therefore, a district education bureau, as the local education administrative department, has the right to formulate enrollment plans and related policies in accordance with the requirements of laws and superior documents, combined with the actual situation of the region. A district education bureau requires the plaintiff to submit relevant materials and quantify them, which is in full compliance with the relevant provisions of laws and regulations. The 2. education department has the right to make overall arrangements for school-age children to attend schools. Article 14 of the regulations of Shandong Province on compulsory Education stipulates: "if school-age children or teenagers whose parents or other legal guardians work or live in places other than their registered residence receive compulsory education in their parents' or other legal guardians, their parents or other legal guardians shall hold their own identity, residence and employment certificates, Apply to the school of the school district where the place of residence is located. If it is really difficult for the school to accept, the education administrative department of the people's government of the county (city, district) where it resides shall make overall arrangements to study in public schools in accordance with the principle of relatively nearby enrollment." According to the above provisions, although the school is the main body of enrollment work, the education department has the right to make overall arrangements for school-age children to attend schools when there are real difficulties in receiving them. Therefore, if the plaintiff is not admitted to a district experimental primary school, a district education bureau has the right to transfer him to Tianmou Road Primary School in the jurisdiction. A district education bureau in 3. protected Zhang's right to receive compulsory education in accordance with the law. The "relative proximity principle" does not refer to the school that is closest in a straight line to the address of residence, but to the school that is relatively close to its location. The plaintiff stated in the complaint: "Agree to obey the defendant's overall adjustment and arrangement according to the principle of relative proximity if the school has real difficulties in receiving it", proving that the school is subject to adjustment. A district education bureau arranged the plaintiff to attend Tianmou Road Primary School, which is less than 3 kilometers away from home and has the highest teaching conditions in a district, according to the number and distribution of migrant workers' accompanying children in the region, which is in full compliance with the above provisions. The plaintiff had agreed to attend school, and a district education bureau guaranteed his equal right to compulsory education. court decision The court of first instance held that the plaintiff, as a school-age child, had the right to receive compulsory education. When the plaintiff applied for admission, although his household registration was not in a certain district, his parents worked in a certain district, and the plaintiff now lived in a certain district with his parents. The plaintiff had the right to receive compulsory education in a certain district. The defendant, a district education bureau, as the district education administrative department, has the authority to recruit students at the compulsory education stage. The defendant can formulate specific enrollment policies according to the actual situation of a certain district. The scoring criteria adopted by the defendant at the enrollment stage are equally applicable to school children who are not registered in a certain district, and there is nothing improper. The plaintiff applied to the defendant to study in an experimental primary school in a certain district. According to the application materials submitted by the plaintiff, the score was 25 points, which did not reach the minimum score of 26.5 points in an experimental primary school in a certain district. The defendant arranged for him to attend Tianmou Road Primary School, which is relatively close to his home, which has already guaranteed the plaintiff's equal right to receive compulsory education. The judgment rejected the plaintiff Zhang's claim. The plaintiff appealed against the judgment of the first instance, and the court of second instance held that the appellant Zhang, as a school-age child of the children of migrant workers, had the right to receive compulsory experimental education with his parents in accordance with the law. A certain district is an area with a large population of migrant workers. According to the Municipal Education Bureau's Opinions on School Enrollment in the Compulsory Education Stage, in order to protect the equal right to education, the appellee, as the education authority, formulates relevant issues in accordance with the provisions of the higher-level documents and the actual situation of the region. The policy does not violate the restrictive provisions of the law. The appellant's legal representative chose a district experimental primary school through the appellee's online registration system and was not admitted to the school. The appellant chose to obey the transfer, and the appellee transferred the appellant to Tianmou Road Primary School, which is relatively close to his parents' place of residence, according to the vacant degree of primary school in the area under his jurisdiction, and has enrolled in school, thus ensuring his right to compulsory education. The appellee's transfer was not improper and did not violate the prohibition. The appellant's request for revocation of the transfer was not justified and the Court did not support it. The appellant's failure to be admitted to a district experimental primary school was an act made by the school. The appellee did not make the act of transferring the appellant from a district experimental primary school. Therefore, the appellant's request to order the appellee to transfer him back to an experimental primary school was not supported by the court. The court of first instance found that the facts were clear, the application of the law was correct and should be maintained in accordance with the law. The judgment rejected the appeal and upheld the original judgment. case analysis There are four main points of controversy in this case: Is the adjustment made by the 1. District Education Bureau to the plaintiff actionable? The adjustment decision made by the District Education Bureau has had a practical impact on the plaintiff's rights and interests in education. It is a specific administrative act, which falls within the scope of accepting cases stipulated in Article 12 of the Administrative Procedure Law and is actionable. Does the 2. District Education Bureau have the right to formulate relevant policies for the enrollment of children of migrant workers? According to Article 6 of the Regulations on Compulsory Education in Shandong Province and the Opinions on School Enrollment in a City's Compulsory Education Stage, a district education bureau, as the local education administrative department, obviously has the right to formulate enrollment policies based on local actual conditions. It is legal to assign quantitative scores to the children of migrant workers, and require schools to enroll from high to low. Does the 3. District Education Bureau have the right to adjust the school attended by the plaintiff? According to Article 14 of the regulations on compulsory Education in Shandong Province, it is not the school to which the plaintiff applies for admission, the school must arrange for him to attend. If the school has real difficulties in accepting it, the local education administrative department can make overall arrangements in accordance with the principle of relatively nearby enrollment. Does the adjustment made by the 4. District Education Bureau violate the plaintiff's right to equal access to compulsory education? The plaintiff's score did not reach the admission score of a district experimental primary school. The district education bureau arranged for him to study in Tianmou Road Primary School, which is relatively close to his home, and has already guaranteed his equal right to receive compulsory education. Case-handling thinking Government departments should do a good job in the legal risk style of the formulation of relevant normative documents. Article 47 of the Provisions on Administrative Procedures of Shandong Province: "The formulation of normative documents shall be conducted by means of symposiums, demonstration meetings and public solicitation of opinions. Where the contents of the normative documents involve significant public interests, where the public has significant differences that may affect social stability, or where laws, regulations and rules provide for a hearing, the drafting department shall organize a hearing." The notice of the Legislative Affairs Office of the provincial government on the implementation of the unified registration, unified numbering and unified publication system of normative documents (Lu Fu Fa [2011] No. 56) clearly requires that from January 1, 2012, all normative documents should be examined for legality, and the system of unified registration, unified numbering and unified publication (hereinafter referred to as the "three unification" system) should be implemented in the legal institutions of the people's government at the same level; normative documents that do not implement the "three unifications" system are valid until December 31, 2015. The documents will automatically expire on January 1, 2016 and shall no longer be used as the basis for administrative management. Therefore, documents related to major public interests formulated by government departments must strictly follow the requirements for the formulation of relevant normative documents in the ''Administrative Procedure Regulations of Shandong Province'', and extensively solicit public opinions by organizing hearings and holding demonstration meetings, and go to the legal system in accordance with the law. The department conducts unified registration, unified numbering and unified publication. Otherwise, in the process of administrative litigation, if the parties submit a request to the court to review the legality of the document, the administrative agency will face the legal risk of losing the lawsuit.

2021-11-09

Point of View... The determination of the justiciability of internal behavior-taking the minutes of the administrative organ meeting as an example.

The acts of administrative organs on internal matters made by organizations and individuals with administrative affiliation, or internal procedures in the process of initiating administrative acts or administrative acts, although aimed at external matters, are not administrative acts and are not within the scope of administrative litigation. The only exception is that the above-mentioned internal acts can directly affect citizens, legal persons or other organizations and have an impact on their rights and obligations without the need for administrative acts under certain specific conditions. At this time, the substantive effect of internal behavior is equivalent to administrative behavior. Starting from the legislative purpose of the "the People's Republic of China Administrative Procedure Law" to protect the legitimate rights and interests of citizens, legal persons or other organizations, it should be included in the scope of administrative litigation. Analysis on the Legal Attribute and Effect of (I) Meeting Minutes As a common official document of government agencies, in administrative cases, whether the minutes of government meetings belong to specific administrative acts, whether administrative proceedings can be brought against them, how effective the minutes of meetings can be in specific administration, and whether they can be cited as normative documents are puzzled by a considerable number of administrative staff. In practice, some administrative organs fail to accurately distinguish the differences and differences between the meeting minutes and other administrative documents, and directly apply the meeting minutes to guide and manage relevant administrative affairs, which brings many troubles to judicial practice and the relief of the rights and interests of administrative counterparts, and also violates the principle of administration according to law. Therefore, it is necessary to clarify the legal nature and scope of the minutes of the meeting, and standardize the procedures and processes applicable to the transformation of the matters recorded in the minutes of the meeting. 1. Meaning and characteristics of meeting minutes Item 15 of Article 8 of China's "Regulations on the Handling of Official Documents of Party and Government Organs" (Zhongban Fa [2012] No. 14) stipulates: "The minutes are applicable to recording the main information and agreed matters of the meeting." The minutes of the government meeting are processed and compiled according to the minutes of the government meeting, the meeting documents and other relevant materials. They are documentary documents reflecting the basic situation and spirit of the meeting. They are mainly used to record and convey the meeting situation and agreed matters. 2. Analysis of the legal nature of government meeting minutes (1) The difference between government meeting minutes and abstract administrative actions Abstract administrative act refers to a universally binding administrative act made unilaterally by an administrative subject against an unspecified administrative counterpart. Abstract administrative acts have four forms: administrative regulations, administrative rules, administrative measures, decisions and orders. The minutes of the meeting are abstract, which means that the minutes of the meeting are abstract and concise expressive records of the matters and contents of the meeting, and are not all records that do not fall word by word. The content of a matter recorded in the minutes of the meeting is not the detailed process and final conclusion to solve the specific problem, but only the principles and methods to deal with a specific problem. In terms of the content of the minutes of the meeting, the matters recorded may be subject to certain constraints on unspecified administrative counterparts, or may be subject to certain constraints on specific administrative counterparts, but the minutes of the meeting are not consistent with the four forms of abstract administrative acts in terms of normative, procedural and statutory aspects. Even if some of the matters recorded involve some of the rights and interests of unspecified administrative counterparts, they do not have the characteristics of abstract administrative acts. The relevant departments need to transform the matters in the minutes of the meeting into administrative acts with legal basis in accordance with the law., Can produce legal effect. (2) The minutes of government meetings are not specific administrative acts Specific administrative act refers to the act of taking specific measures against a specific person or thing in the process of administrative management. The content and result of the act will affect the rights and interests of a certain person or organization. Its most prominent feature is the specificity and concretization of the object of the act, which belongs to an individual or organization, or a specific social matter. From the point of view of the content recorded in the minutes of the meeting and its own characteristics, the minutes of the meeting do not have the characteristics of specific administrative acts. The minutes of the meeting are formed by the meeting and are not specific administrative acts. In the process of forming the minutes of the meeting, some specific administrative matters are often discussed, and guiding and principled solutions and methods are produced, which have an impact on the rights and interests of the administrative counterpart on the surface, but in fact it still needs to be transformed by the relevant administrative organs in order to have external effect. (3) The minutes of government meetings are applicable to the internal affairs of administrative organs. In terms of the process of formation, content and scope of application of the minutes of the meeting, the minutes of the meeting are internal, that is, they are only applicable within the administrative organ. As a kind of official document, the minutes of the meeting are applicable to recording the meeting situation and agreed matters, and their internal nature should be clearly defined, that is, they should only be effective within the government organs and should not be effective directly to the outside. If the relevant matters need to be effective to the outside, they should be transformed into other corresponding types of official documents. The contents and matters recorded in the minutes of government meetings are abstract contents condensed and summarized, and their impact on administrative affairs and the rights and interests of administrative counterparts should only be principled, instructive and abstract, and cannot be used as the basis for specific administrative acts or directly applied to administrative counterparts. Therefore, the minutes of the meeting only have legal effect internally, that is, only have corresponding binding force within the administrative organ. (4) The minutes of government meetings need to be transformed for external effectiveness. The minutes of the government meeting do not have direct legal effect to the outside world, and the minutes of the meeting need to be transformed into other official documents. The matters recorded in the minutes of the meeting shall have external effect and may be announced in the form of approval, issuance or forwarding of notices. According to the provisions of the regulations, the issuance of "notices" needs to be sealed and has legal effect. For example, the notice (document number) on the issuance of the * * * meeting minutes is to transform the meeting minutes so that the contents and matters recorded in the meeting minutes have external legal effect. (5) Lack of legal basis for the direct external application of the minutes of government meetings The law does not specify whether the minutes of the meeting can be directly applied. In the absence of legal basis and clear positioning, if it is used directly, it will lead to the situation that illegal application is difficult to protect rights. 3. Exceptions to the litigation nature of the minutes of government meetings On the question of whether the minutes of government meetings are actionable and under what conditions they are met, a large number of judicial decisions of the Supreme People's Court uphold the agreed judicial view that the minutes of government meetings are still actionable if certain conditions are met. Two conditions should be met for justiciability: first, the content of the minutes of the meeting directly relates to the specific rights and obligations of citizens, legal persons or other organizations. In the case of Wang mou et al. v. Shenyang municipal people's government of Liaoning province for the retrial of the performance of the meeting minutes ((2018) supreme law application no 1589), the supreme people's court held that: On the issue of the justiciability of the minutes of the meeting. The first paragraph of Article 2 of the "the People's Republic of China Administrative Litigation Law" stipulates that citizens, legal persons or other organizations that believe that the administrative actions of administrative agencies and their staff infringe upon their lawful rights and interests have the right to file a lawsuit in a people's court in accordance with this law. Item 12 of the first paragraph of Article 12 stipulates that if a citizen, legal person or other organization considers that an administrative organ has infringed upon other legitimate rights and interests such as personal rights and property rights, the people's court shall accept it. It can be seen that the criterion for judging whether an administrative act is actionable is whether the administrative act infringes on the legitimate rights and interests of the relative, that is, the act that has an actual impact on the rights and obligations of the relative belongs to the scope of the case of administrative litigation and is actionable. In this case, the minutes of the meeting were made to resolve the housing shading dispute between Wang and others and the Shenyang Military Region Housing Management Office. They involved the repurchase of houses by shaded households and the approval of new housing planning. The content was clear and specific. After the minutes of the meeting were made, Wang and others stopped petitioning and obstructing the construction of the troops. The units involved in the minutes of the meeting have also carried out part of the work in accordance with the contents of the minutes of the meeting. Therefore, the minutes of the meeting have had a direct impact on the rights and obligations of Wang and others, and are actionable. The Shenyang Municipal Government proposed that the minutes of the meeting were not actionable, and the case did not fall within the scope of administrative litigation. The Supreme People's Court did not support it. In the retrial case of Jiaozuo textile co., ltd. suing Jiaozuo municipal people's government for the minutes of the meeting ((2019) supreme law application no 458), the supreme people's court held that: The minutes of meetings, as internal documents used by administrative organs to record and convey relevant meetings and agreed matters, are internal administrative acts and usually have no legal effect on the outside world, nor do they have a direct impact on the rights and obligations of administrative counterparts. The legal effect of the minutes of the meeting should meet two conditions: first, the contents of the minutes of the meeting directly involve the specific rights and obligations of citizens, legal persons or other organizations. Externalization methods include the administrative organ serving or informing the parties of the minutes of the meeting as an administrative decision, or the administrative organ executing the minutes of the meeting directly, and the parties knowing the contents of the minutes of the meeting in the process of execution, otherwise the minutes of the meeting will not have an externalization effect. The way to externalize the minutes of the meeting should be limited to legitimate channels. If the contents of the minutes of the meeting are known through abnormal channels such as private notification, it does not belong to the official release through legal channels. The minutes of the meeting do not have legal effect to the outside world, nor do they have enforcement power, and do not belong to the scope of administrative litigation. If the minutes of the meeting are transformed into other administrative acts with legal effect, the parties may sue for other administrative acts with legal effect, and the minutes of the meeting do not directly affect the rights and obligations of the parties. Whether the minutes of the [2013] No. 2 meeting, which is sued in this case, can be sued depends on whether it has been externalized and has legal effect to the outside world. Jiaozuo Municipal People's Government said that the minutes of the meeting involved in the case had been delivered to a textile company together with the reply of Jiao Zhengtu [2014] No. 35 on May 30, 2014, but did not provide evidence that the minutes of the meeting involved in the case had been delivered. A textile company is inconsistent and contradictory about the time and way it got the minutes of the meeting involved in the case. Therefore, in the absence of evidence to prove that the minutes of the meeting have been externalized, the original ruling rejected a textile company's prosecution is not improper. Huiyin Company's request for the implementation of land issues and other rights not resolved in the original relocation process may be claimed separately. (II) Enlightenment to the Work of Government Departments Since the minutes of government meetings, as internal documents used by administrative organs to record and convey relevant meetings and agreed matters, are internal administrative acts, they usually have no legal effect on the outside world, nor do they have a direct impact on the rights and obligations of administrative counterparts. However, through a large number of judicial cases of the Supreme People's Court, it can be seen that the minutes of government meetings are still actionable when certain conditions are met. Therefore, official documents that really need to be made in the form of meeting minutes in the work of government departments should be strictly examined and checked to avoid the contents of meeting minutes directly involving the specific rights and obligations of citizens, legal persons or other organizations, and infringing upon other personal rights, property rights and other legitimate rights and interests. If relevant matters need to be externally effective, they should be converted into other corresponding types of official documents.

2021-11-09

Viewpoint... The nature of employee fund-raising claims in bankruptcy.

At present, the legal nature of the creditor's rights of fund-raising funds for employees of bankrupt enterprises is still a controversial issue. How to correctly handle the issue of fund-raising funds for employees within the scope of the law is an important issue facing the bankruptcy administrator. Based on the historical evolution of laws, regulations and policies, this paper makes a brief analysis of the legal nature of employee fund-raising claims in bankruptcy cases. The relevant provisions of the employee fund-raising as a priority claim in bankruptcy. 1. Article 3 of the 1994 "Notice of the State Council on Issues Related to the Trial Implementation of Bankruptcy of State-owned Enterprises in Certain Cities" (Guo Fa [1994] No. 59) stipulates that "before bankruptcy, the funds borrowed from the employees in order to maintain production and operation shall be treated as the wages owed by the bankrupt enterprise." This provision applies only to pilot cities for enterprises to optimize their capital structure as determined by the State Council. 2. The first paragraph of Article 58 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases (Fa Shi [2002] No. 23) in 2002 stipulates that "the funds owed by the debtor to the employees of the enterprise shall be paid off in accordance with the order stipulated in Item (I), Paragraph 2, Article 37 of the Enterprise Bankruptcy Law, but the high interest portion that violates the law shall not be protected." (Article 37, paragraph 2, of the 1986 the People's Republic of China Enterprise Bankruptcy Law (for trial implementation) stipulates that "after the bankruptcy estate has paid the bankruptcy expenses in priority, it shall be paid off in the following order: (1) the wages and labor insurance expenses owed by the bankrupt enterprise; (II) the taxes owed by the bankrupt enterprise; and (III) the bankruptcy claims.") The judicial interpretation of the employee fund-raising funds are classified as labor claims (also known as employee claims), so it has the attribute of labor claims, that is, as the wages of employees, etc. in the first order of priority over other claims, has become an important basis for employees to claim fund-raising claims as priority claims in the current bankruptcy practice. II. Disputes over the nature of employee fund-raising claims Since the new "Enterprise Bankruptcy Law" implemented on June 1, 2007 and the subsequent three judicial interpretations have not made clear provisions on employee fund-raising claims. After the implementation of the new Enterprise Bankruptcy Law, there are different views in practice on whether the nature of employee fund-raising is recognized as a priority claim by reference to wages or as an ordinary claim. The first view is that employee fund-raising should be recognized as ordinary claims. The reason is that Article 58 of Fa Shi [2002] No. 23 is explained to Article 37 of the Bankruptcy Law (Trial), which has been repealed by the new Enterprise Bankruptcy Law implemented in 2007. The new Enterprise Bankruptcy Law has no provisions on employee fund-raising claims, which shows that employee fund-raising claims are not essentially different from ordinary private loans and should be treated as ordinary bankruptcy claims. Article 12 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (Fa Shi [2015] No. 18), which came into effect on September 1, 2015, clearly stipulates that legal persons or other organizations raise funds from employees through loans within the unit for the production and operation of the unit, and there are no circumstances stipulated in Article 52 of the Contract Law and Article 14 of these Provisions, where the parties claim that the private lending contract is valid, the people's court should support it. This further proves that employee fund-raising claims should be equivalent to ordinary claims of private lending. The second view is that employee fund-raising should be recognized as employee claims. The reason is that although the Bankruptcy Law (Trial) has been abolished, item (I) of paragraph 1 of Article 113 of the new Enterprise Bankruptcy Law is a continuation of item (I) of paragraph 2 of Article 37 of the Bankruptcy Law (Trial), and Fashi [2002]23 is still in force. In addition, from the perspective of maintaining social stability and the vital interests of employees, it is also in line with the original intent of the legislation to pay off the employees' fund-raising claims of bankrupt enterprises as the first order. Therefore, the employee fund-raising funds are settled by reference to the first order. III Tracing the concept of employee fund-raising It is generally believed that employee fund-raising refers to the loan that an enterprise needs to borrow from the employees of the unit for the purpose of production and operation or expansion of production, and the employees provide to the enterprise for the purpose of obtaining interest income. Employee fund-raising belongs to the category of borrowing, but it is different from other fund-raising behaviors in society. It has the characteristics that the lender is the employee of the enterprise, the purpose of borrowing is the production and operation of the enterprise, and the borrowing behavior is limited to the enterprise. This generalization is in line with the contents of Guo Fa [1994] No. 59 and French Interpretation [2015] No. 18, but is this the whole concept of employee fund-raising? What is the origin of employee fund-raising? Fashi [2002] No. 23 only mentions the concept of fund-raising funds for employees but does not give too much explanation. Is it just to unify the handling standards of state-owned enterprises and other enterprises, and to summarize the description of Guofa [1994] No. 59 "in order to maintain production and operation, funds raised from employees", then why is it not quoted in the original text, but a different name? Or does the name already exist? Since Guo Fa [1994] No. 59 provides for the treatment of such claims in bankruptcy, it indicates that the phenomenon of borrowing from employees should have existed before. So where on earth did it come from as a legal concept at first? Why did Fashi [2015] No. 18 put forward separately only to support the validity of the contract? Was it invalid before? Why did Fashi [2002] No. 23 give priority to protection? With these questions, the author explored. In the People's Bank of China, the "Notice on Strengthening the Management of Internal Fund-raising in Enterprises" (Yinfa [1989] No. 21) issued by the People's Bank of China in 1989 to implement the "Notice of the State Council on Strengthening the Management of Internal Bonds" (1989 No. 174), The author discovered the concept of internal fund-raising of enterprises. The notice stipulates that "internal fund-raising of enterprises refers to the behavior of enterprises raising funds from internal employees. Internal fund-raising should generally take the form of issuing internal bonds. When an enterprise conducts internal fund-raising, it must formulate a fund-raising charter or method, and submit it to the People's Bank of China for approval after examination and approval by the enterprise's account-opening financial institution. The monthly report of securities issuance statistics adds an eighth item, 'intra-enterprise fund-raising, 'and so on. In 1999, the Supreme People's Court issued the "Reply on How to Confirm the Effectiveness of Borrowing Acts between Citizens and Enterprises" (Fa Shi [1999] No. 3) [1], which pointed out that enterprises illegally raise funds from employees in the name of loans, enterprises illegally raise funds from society in the name of loans, enterprises issue loans to the public in the name of loans, and other violations of laws and administrative regulations are invalid. Although due to various reasons, the internal fund-raising of enterprises has been strictly controlled and even severely cracked down, the enterprise fund-raising in China has never completely disappeared. Regarding fund-raising, the regulatory authorities are basically in the "three noes" attitude of no approval, no accident, and no accusation, which makes fund-raising widespread "illegal" existence. Article 12 of the judicial interpretation of private lending issued in 2015 is a timely and effective way to fill this legal gap. 4 Legal analysis of employee fund-raising funds. The author thinks that the employee fund-raising as a legal concept has its important characteristics of the times. The employee fund-raising should not be defined according to the interpretation of the text and applied to the current bankruptcy practice, but should adopt historical interpretation and systematic interpretation. The laws and policies of different periods regulate the internal fund-raising of enterprises differently, and the concept of "employee fund-raising" has different connotations in different periods, the nature of fund-raising claims should also change. Yinfa [1989] No. 174 puts forward higher requirements for the legality of enterprise internal fund-raising, which is different from ordinary lending. According to the upper document "Notice of the State Council on Strengthening the Management of Enterprise Internal Bonds" (Guo Fa [1989] No. 21), it can be seen that the original intention of enterprise internal fund-raising is enterprise internal bonds. If an enterprise raises funds from internal employees to meet its strict requirements, it should naturally be protected by a higher level of law. Fashi [1999] No. 3 stipulates that "enterprises illegally raise funds from employees in the name of loans" is invalid, which also confirms that internal fund-raising in accordance with Yinfa [1989] No. 174 should be protected by law. According to the modern legislative system, Yinfa [1989] No. 174 should be a departmental normative document. After the implementation of the Contract Law on October 1, 1999, internal fund-raising in violation of Yinfa [1989] No. 174 should not be deemed as It is invalid, but it is also free from the original conditions of internal fund-raising of enterprises and turns into the characteristics of ordinary private lending relationships, and should not be subject to higher protection. Fashi [2002] No. 23 is still valid [3]. Although the reason for not abolishing it is unknown, it may be explained in a bankruptcy case of a state-owned enterprise that the author once participated in. The state-owned enterprise entered bankruptcy proceedings in 2017. During the liquidation process, it was found that a large number of employee fund-raising funds from the 1980 s to the 1990 s had not been repaid, and relevant approval documents were not found, however, in accordance with the provisions of the judicial interpretation, the administrator gave priority to the settlement of the employee fund-raising funds as labor claims, and neither the creditor nor the debtor raised any objection to this. After the abolition of Yinfa [1989] No. 174 [2], the internal employees of the enterprise voluntarily lend funds for the paid use of the enterprise for the business activities of the enterprise, which is no different in essence from the lending of funds by social personnel and the repayment of principal and interest by the enterprise on schedule. If only the employee status and the condition of the word "fund-raising" on the debit note are different from the non-employee private lending behavior, it is recognized as the employee's claim in bankruptcy, which violates the legislative purpose of the new Enterprise Bankruptcy Law to fairly clean up the creditor's rights and debts and protect the legitimate rights and interests of all creditors. Five conclusions The author believes that under the "three nos" attitude of the regulatory authorities, the definition of employee fund-raising funds should be distinguished by the implementation date of the new "Enterprise Bankruptcy Law. For employee fund-raising claims that occurred before the implementation of the Enterprise Bankruptcy Law on June 1, 2007, in accordance with the laws and regulations at that time, with reference to the wages and labor insurance expenses owed by the bankrupt enterprise, they shall be paid off in the first order; For employee fund-raising claims that occurred after the implementation of the Enterprise Bankruptcy Law on June 1, 2007, private loans should be treated as ordinary claims in principle. Note: [1] Repealed on July 20, 2019, Decision of the Supreme People's Court on Repealing Some Judicial Interpretations (Thirteenth Batch) Law Interpretation [2019] No. 11. [2] Repealed on October 26, 2010, the People's Bank of China, China Banking Regulatory Commission Announcement [2010] No. 15. [3] The national laws and regulations database (npc.gov.cn) is valid, and the last query time is November 8, 2021. References: 1. Du Hongfang's "An Analysis of the Nature of Employees' Fund-raising Claims in Bankruptcy Cases". 2. Zhang Huaxin's Legal Analysis of the Nature of Employee Fund Raising in Bankruptcy Proceedings. 3. Du Wanhua, Editor-in-Chief, Understanding and Application of Judicial Interpretation of Private Lending by the Supreme People's Court, August 2015.

2021-11-08

Viewpoint... Commercial factoring business contract risk prevention points.

Before the Civil Code came into effect, factoring contracts did not belong to any of the famous contracts listed in the Contract Law. With the rapid development of supply chain finance in recent years, commercial factoring, as a comprehensive financial business integrating financing, accounts receivable collection, accounts receivable management and accounts receivable guarantee, has also received extensive attention. With the promulgation of the Civil Code, Chapter XVI of Title III sets up nine provisions, detailing the definition, content and form of the factoring contract, the validity of fictitious accounts receivable, the subject and manner of notification of the assignment of accounts receivable, and whether there is recourse, making the factoring contract a reputable contract. Therefore, the dispute over the factoring contract has become the 113th cause of action in the Civil Cause of Action, and the agent should strictly follow the provisions of the Civil Code for factoring contracts to avoid contractual risks. The constituent elements of a 1. factoring contract. Prior to the promulgation of the Civil Code, the Tianjin Higher People's Court issued the Minutes of the Trial Committee of the Tianjin Higher People's Court on Several Issues Concerning the Trial of Factoring Contract Disputes in October 2014, which clarified that the legal relationship of factoring should be formed at the same time. The following basic conditions: 1. The factoring company must be a financial institution and a commercial factoring company that can carry out factoring business in accordance with national regulations and approved by the relevant competent authorities; 2. The factoring legal relationship should be premised on the transfer of claims; 3. The factoring agent and the creditor shall sign a written factoring contract; 4. The agent shall provide at least one of the following services: financing, sales sub-account management, accounts receivable collection, credit investigation and evaluation, credit risk control and bad debt guarantee. The aforementioned provisions are summarized in the Civil Code, Article 761 of the Civil Code, which states: "A factoring contract is a contract in which an accounts receivable creditor transfers existing or existing accounts receivable to a factoring person, and the factoring person provides services such as financial communication, accounts receivable management or collection, and payment guarantees for accounts receivable debtors." According to the above provisions, it can be seen that the two necessary elements for the formation of a factoring contract are: a true assignment of accounts receivable and effective factoring services. Factoring is a kind of comprehensive financing business, compared with traditional financing methods such as borrowing and credit enhancement, the transfer of accounts receivable is the core link, if there is no real transfer of accounts receivable, it may be based on the true intention of both parties to the contract to form a loan contract relationship or guarantee contract relationship and other legal relations. According to the circumstances listed in Article 762 of the Civil Code, the elements of a factoring contract generally include the type of business, scope of service, term of service, contract status of the underlying transaction, information on accounts receivable, factoring financing or remuneration for the service and its payment method, and the factoring is required to provide real factoring services in accordance with the contract. 2. the creditor has a genuine underlying contractual relationship with the debtor that can give rise to a specified receivable Article 763 of the Civil Code states: "Where a creditor of accounts receivable and a debtor make up the accounts receivable as the subject of an assignment and enter into a factoring contract with a factoring agent, the debtor of the accounts receivable may not oppose the factoring agent on the ground that the accounts receivable do not exist, unless the factoring agent knows that the accounts receivable are fictitious." According to the above, if the creditor of the accounts receivable and the debtor make up the underlying contract, the true intention of both parties is to obtain financing from the factoring company, in which case it is necessary to distinguish whether the factoring person knows whether the underlying contract is fictitious. First of all, if the factor does not know the fictitious basic contract between the creditor and the debtor, the factor can continue to demand the debtor to perform the payment obligation of accounts receivable according to the provisions of the Civil Code, that is, the validity of the basic contract does not affect the continued validity of the factoring contract, and then the factor can naturally claim rights against the creditor according to the agreement of the factoring contract. If it is agreed in the factoring contract that the factoring person has the right of recourse, the factoring person can exercise the right; if there is no right of recourse, the factoring person can also exercise the right of revocation based on the creditor's fraud according to the provisions of Article 148 of the Civil Code, requiring the creditor to return the financing funds and compensate for the losses. The author believes that under such circumstances, even if the basic contract and the factoring contract have no legal effect, the factorer may still claim rights against the debtor on the basis of reliance interest protection. Secondly, if the factoring person still enters into a factoring contract with the creditor if he knows the fraud of the creditor and debtor of the account receivable, the factoring person will provide funds and agree on the proceeds when he knows that the account receivable does not exist. The act conforms to the appearance form of the loan and also has the meaning of the loan. Therefore, the legal effect of the act should be judged according to the provisions on the validity of the contract. In such cases, the factoring contract and the underlying contract are invalid because they are not the true intention of the parties to the contract, and whether they are a loan or not depends on the scope of the factoring person's business. According to Article 19 of the Banking Supervision and Administration Law: "No unit or individual may establish a banking financial institution or engage in the business activities of a banking financial institution without the approval of the banking regulatory authority under the State Council." The author believes that this is a mandatory provision of validity. If the factoring person does not have the qualification to issue loans, he will face the risk that the loan contract relationship will not be established. In judicial practice, the court generally decides that both parties to the contract will return it separately, and the creditor will return the principal of factoring financing and add the capital occupation fee calculated by LPR in the same period. At this time, the factoring person may suffer certain losses. 3. due diligence on the underlying accounts receivable Accounts receivable is the core concern of commercial factoring companies to carry out factoring business, whether the corresponding accounts receivable to conduct adequate due diligence determines the degree of protection of the trust interests of the factor. The factor shall conduct due diligence on the authenticity, legal validity, transferability and integrity of rights of the accounts receivable. Since the factoring is not a counterparty to the underlying contract, I believe that the depth of due diligence here is a formal review, and that the factoring is considered to be in good faith as long as the obligation of careful review is fulfilled. Due diligence on accounts receivable should focus on the following: 1, the authenticity of accounts receivable: the agent should focus on verifying the original text of the basic contract, out of storage documents, logistics documents, invoice receipts and other materials, to compare samples, interviews and other ways to judge the authenticity of the above materials. Among them, it is also necessary to pay attention to whether the agreed price, term, type of subject matter, payment terms, etc. are significantly different from normal trading habits, whether they are in line with industry practice, and whether different materials can be confirmed by each other to further judge the authenticity of the underlying transaction. It should be noted that future accounts receivable, I .e. accounts receivable that have not yet been formed, may also be classified as factoring under article 761 of the Civil Code. In such cases, the factoring agent should use a higher standard to verify whether the accounts receivable are predictable, whether the payment subject, type, amount and other relevant conditions of the accounts receivable are determined, and if necessary, the debtor needs to give clear confirmation or the creditor to guarantee the credit to prevent the risk of performance of the accounts receivable. 2. Legal validity of accounts receivable: the factoring agent needs to carefully verify the legal validity of the formation of accounts receivable, it is necessary to investigate whether the parties to the basic contract have the qualified civil and commercial subject qualification, whether they have the business qualification to handle the business agreed in the basic contract, whether the basic contract business is in line with the relevant provisions of laws and regulations, whether it will infringe upon the legitimate rights and interests of any third party, and whether there are other defects that lead to the invalidity, revocability and non-establishment of the contract. 3. Transferability of accounts receivable: The factoring person shall verify whether the accounts receivable formed as a result of the underlying contract are transferable, and whether the factoring person can claim the performance of the debt directly to the debtor when the specific circumstances stipulated in the factoring contract occur. In this case, the focus is on verifying whether the receivable has been pledged, whether there is an agreement to prohibit the assignment of the claim, whether there is a debtor's claim to set off the receivable, and whether there are other third parties claiming the receivable that result in the receivable not being assigned. 4. Integrity of accounts receivable: The factorer shall verify whether the creditors of the underlying contract have full ownership and corresponding ancillary rights to the accounts receivable, and that there are no restrictions on the rights of debt set-off, counterclaims claimed by the debtor, damages, pledges, etc. The agent shall obtain a confirmation of the accounts receivable jointly issued by the debtor and the creditor to clarify whether the debtor is in dispute with the payment. In summary, the promulgation of the Civil Code has made factoring contracts a well-known contract and has made clear provisions for factoring business. Commercial factoring companies should conduct a comprehensive review of all aspects from the constituent elements of factoring contracts, the real contractual relationship between the two parties to the basic contract, and the legal compliance of accounts receivable, so as to avoid contract risks.

2021-11-05

Real estate perspective: how to determine the liability of the property company when the owner's proprietary part is damaged.

Case Introduction On the afternoon of March 10, 2018, Yu found that the newly renovated house was damaged due to water leakage upstairs, causing damage to the bedroom roof and living room ceiling. Yu then found the property. After checking the property, the cause of the water leakage was the loosening of the water pipe plug in the upstairs toilet. After the property company failed to contact the upstairs owner, it immediately took measures such as closing the tap water valve to deal with the situation on site. After the incident, Yu communicated with the upstairs owner many times on the issue of loss compensation, but failed, so he took the upstairs owner and the property company to court. focus of controversy Should the property company be liable for compensation when the owner's proprietary part is damaged? court decision (I) court of first instance judgment: The court of first instance held that the legitimate rights and interests of citizens are protected by law. If the perpetrator infringes upon the civil rights and interests of others through fault, he shall bear tort liability. In this case, the damage to the plaintiff's house was caused by water leakage from the upstairs owner's house. The upstairs owner should compensate the plaintiff for the losses caused by this. The defendant's property company, as the maintenance and manager of the residential area, only closed the valve after receiving the water leakage from the residents. It did not notify the plaintiff to carry out inspection in time and the defendant to carry out maintenance. As a result, the plaintiff's losses were expanded, the property company was sentenced to bear the plaintiff's compensation of 3000 yuan. (II) court of second instance judgment: After receiving the repair notice, the appellant's property company failed to contact the owner upstairs and closed the main tap water valve of the staircase pipeline well. It can be seen that the property company has fulfilled the duties of property management, and according to Item 7 of Article 23 of the previous property service contract, Party B (the property company) shall not undertake the insurance custody obligation for the personal and property used by the owner and non-owner during the contract period (except for other special contract provisions), and Yu has not provided evidence to prove that he has signed a special contract with the property company for property custody, therefore, this court believes that the property company does not have liability for breach of contract, the court of first instance to the property company has a certain liability for breach of contract judgment that its liability for compensation has no factual and legal basis, belongs to the determination of facts and the application of the law is improper, the court to correct. Lawyer's opinion Through case search, in judicial practice, for accidents such as household water leakage, the court has different opinions when deciding whether the property company is responsible. For example, in this case, the court of first instance held that the property company, as the maintenance and manager of the community, had defects in performing its maintenance and management obligations, so it should bear certain liability for breach of contract; while the court of second instance, based on the clear agreement of the property service contract, decided that the property company did not bear the responsibility to be revised. Our lawyer believes that in terms of the legal relationship of property management, although the property company is the maintenance and manager of the community. However, according to the relevant property service agreement, the property company is the maintenance and manager of the public areas and public facilities and equipment of the community, and the exclusive part of the owner and its internal facilities and equipment are not the scope of responsibility of the property company. Then, it should be determined whether the property company has fulfilled its corresponding management responsibilities within the scope of responsibility for the public areas and public facilities and equipment in the community. In this case, the property company took timely measures to close the tap water valve after discovering the water leakage, and notified the leaking residents, which should be recognized As fulfilling the corresponding management obligations. In addition, this case is a tort dispute, from the tort legal relationship, the property company does not meet the constituent elements of infringement. Therefore, the property company should not be liable for compensation. Related Cases (I) Wang mou and Li mou dispute over compensation for property damage (2013 Licheng min Chu zi no 2566) Court decision: This court believes that according to the law, the perpetrator shall be liable for compensation if he infringes on the property rights and interests of others. Defendant Li Mingshuang damaged plaintiff Wang Rong's house due to a broken water pipe in his home. Defendant Li Mingshuang argued that the corresponding loss caused by the water leakage was due to multiple causes and one result. The house delivered by the third party Mingdu Real Estate Company had quality problems. The faucet installed by the third party Jinbi Property Company had quality problems. The claim was a contract dispute with the third party and had nothing to do with the tort in this case. Defendant Li Mingshuang should be liable. (II) Shanxi Yunxin Property Management Co., Ltd. Xiangyuan Branch and Yu Bei and Li Yingjun Property Damage Compensation Dispute (2019 Jin 04 Min Zhong No. 1061) Court decision: the second instance only revolves around the appeal request and factual reasons of the parties. In this case, it has been found out that the damage to the appellee's yingbei house was caused by the water leakage in the appellee's Li yingjun house. the appellee yunxin property company received a report from 203 residents for repair. the telephone contact with Li yingjun failed and closed the main tap water valves of 403 households in the staircase pipeline well. It can be seen that Yunxin Property Company has fulfilled its duties of property management, and it is stipulated in Item 7 of Article 23 of the Preliminary Property Service Contract for Affordable Housing in Xiangyuan County provided by Yunxin Property Company that Party B (Yunxin Property Company) shall not undertake the insurance custody obligation for the personal and property used by the owners and non-owners during the contract period (except for other special provisions in the contract), however, Yu Bei did not provide evidence to prove that he had signed a special contract with Yunxin Property Company for property custody. Therefore, the court held that Yunxin Property Company did not have any liability for breach of contract. The court of first instance ruled that Yunxin Property Company had certain liability for breach of contract and had no factual and legal basis for its liability for compensation. It was improper to determine the facts and apply the law. The court corrected it. (III) Wu mou, a property management company and a real estate company (2011 fu min Chu zi no 3195) The court decision: ...... a property management company as a property management company, its responsibility is mainly for the community to carry out professional management, maintenance of public facilities in the community, the owner of the house of proprietary facilities is not in its scope of responsibility, and a property management company after receiving a phone call from Wu took appropriate measures to deal with the incident. Wu also did not submit sufficient evidence to prove that a property management company was at fault in this case, and a property management company has no legal responsibility and should not be liable for compensation. ......

2021-11-05

Construction Engineering Environmental Capital Law Review (No. 30). The similarities and differences between compensation for ecological environmental damage and public interest litigation by procuratorates and environmental protection organizations.

The construction of ecological civilization is a long-term plan related to the well-being of the people and the future of the nation. Since the 18th National Congress of the Communist Party of China, the Party Central Committee with Comrade Xi Jinping at the core has always placed the construction of ecological civilization in a prominent position, repeatedly emphasized that green water and green mountains are golden mountains and silver mountains, and adopted various measures to comprehensively strengthen ecological environmental protection and ecological civilization construction. What is particularly important is that in recent years, the CPC Central Committee and the State Council have tried out a compensation system for ecological and environmental damage nationwide; procuratorial organs have persisted in trying and exploring in the field of public interest litigation for many years, and have established a procuratorial public interest litigation system with ecological and environmental protection as the main content through the authorization of the National people's Congress and the revision of relevant laws. Institutional origin 1. Procuratorial public interest litigation system In order to strengthen the protection of national interests and social public interests, in recent years, procuratorial organs have taken the lead in the attempt and exploration of public interest litigation in the fields of ecological environmental protection, food and drug safety, which has produced positive social effects. On June 27, 2017, the 28th meeting of the Standing Committee of the 12th National People's Congress voted and passed the decision on amending the the People's Republic of China Civil Procedure Law and the the People's Republic of China Administrative Procedure Law. The public interest litigation initiated by the procuratorial organ was clearly written into these two laws. This indicates that China has formally established the system of public interest litigation by procuratorial organs in the form of legislation. 2, the ecological environment damage compensation system. In November 2015, the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council issued the "Pilot Program for the Reform of the Ecological Environment Damage Compensation System" (Zhongban Fa [2015] No. 57). With the approval of the State Council, the governments of 7 provinces (municipalities directly under the Central Government) including Jilin are authorized as the right holders of compensation for ecological environment damage within their administrative regions to carry out pilot reforms of the ecological environment damage compensation system. Two years later, the ''Ecological Environment Damage Compensation System Reform Program'' was issued, stipulating that starting from January 1, 2018, the ecological environment damage compensation system will be piloted nationwide, clarifying the scope of ecological environment damage compensation, the subject of responsibility, the subject of claims, and damage compensation. Ways to solve, etc., and form a corresponding appraisal and evaluation management and technical system, financial guarantee and operation mechanism, and gradually establish a restoration and compensation system for ecological environmental damage, accelerate the construction of ecological civilization. Difference between the two 1. Different in nature The public interest litigation of the procuratorial organ is the application of judicial power and has the relevant characteristics of civil and administrative litigation. The system of compensation for damage to the ecological environment, in which the administrative body is the subject of rights, mainly belongs to the category of administrative power, emphasizing how to use administrative means to solve the problems of compensation and restoration of damage to the ecological environment. The ecological environment damage compensation system requires the government and relevant departments to directly carry out investigation, appraisal and evaluation, compensation consultation, litigation, supervision and implementation and other ecological environment damage compensation work. 2. The main body of the plaintiff is different The plaintiff subject of environmental civil public interest litigation initiated by social organizations is a social organization that is registered with the civil affairs department of the people's government at or above the city level divided into districts in accordance with the law, and has specialized in environmental protection public interest activities for more than five consecutive years and has no illegal record; The plaintiff subject of environmental public interest litigation brought by the procuratorial organ is the procuratorial organ; The main body of the plaintiff in the ecological environment damage compensation lawsuit is the provincial and municipal governments (including the district and county governments under the jurisdiction of the municipality directly under the Central Government) and their designated departments or institutions. 3, the defendant subject is not exactly the same The defendant subject of environmental civil public interest litigation brought by social organizations is the civil subject that pollutes the environment, destroys the ecology and harms the public interest of the society; The main body of the defendant in the ecological environment damage compensation lawsuit is the compensation obligor, that is, the unit or individual that violates the laws and regulations and causes the ecological environment damage, but each region can expand the scope of the ecological environment damage compensation obligor according to the need, and put forward relevant legislative proposals; The defendant subject of environmental civil public interest litigation initiated by the procuratorial organ is the same as the civil public interest litigation initiated by social organizations, but the environmental administrative public interest initiated by the procuratorial organ is aimed at the administrative organ with the responsibility of supervision and management to illegally exercise its functions and powers or omission, resulting in the infringement of national interests or social public interests, Therefore, the defendant subject of environmental administrative public interest litigation initiated by the procuratorial organ is the administrative organ. 4, the scope of application is not exactly the same The scope of application of environmental public interest litigation initiated by social organizations, environmental civil public interest litigation initiated by procuratorial organs, and ecological environmental damage compensation litigation is generally inclusive or overlapping, and they are all applicable to environmental pollution or ecological damage that harms the public interest of society. Subject behavior. The scope of application of administrative public interest litigation initiated by procuratorial organs is only applicable to administrative acts that illegally exercise their functions and powers or omission by administrative organs responsible for supervision and management, resulting in infringement of national interests or social public interests, covering many fields, such as ecological environment and resource protection, food and drug safety, protection of state-owned property, transfer of state-owned land use rights, and so on. The system of compensation for damage to the ecological environment is limited to the field of ecological environment protection. 5, the prosecution time and conditions are different. According to Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Environmental Civil Public Interest Litigation Cases, social organizations can deal with environmental pollution and ecological damage that have harmed the public interest or have a major risk of harming the public interest. File an environmental public interest lawsuit. Therefore, in the time of prosecution, social organizations can bring environmental public interest litigation before the damage occurs or after the damage occurs. In terms of prosecution conditions, social organizations can file environmental public interest litigation under the condition that social public interest damage has occurred, or although the damage has not occurred, it has a significant risk of damaging social public interest. According to the "Pilot Program for the Reform of the Ecological Environment Damage Compensation System", first of all, the ecological environment damage compensation litigation must start in time after the ecological environment damage occurs. Secondly, the ecological environment damage compensation litigation has the pre-procedure of consultation, that is, after the ecological environment damage occurs, the compensation right holder should organize and carry out the ecological environment damage investigation, identification and evaluation, and the preparation of restoration plan, and according to the ecological environment damage identification and evaluation report First, negotiate with the compensation obligor to reach a compensation agreement. Only when the two parties negotiate on the ecological environment damage compensation but fail to reach an agreement, only the right holder of compensation and the department or institution designated by it have the right to file a civil action for compensation for ecological environmental damage. For the environmental civil public interest litigation initiated by the procuratorial organ, after the procuratorial organ discovers the behavior that harms the public interest in the performance of its duties, the procuratorial organ can only bring a lawsuit to the people's court if there is no organ and organization prescribed by law to sue, or if the organ and organization prescribed by law does not sue. For the environmental administrative public interest litigation initiated by the procuratorial organ, after discovering the behavior that harms the public interest of the society, the procuratorial organ should first put forward procuratorial suggestions to the administrative organ to urge it to initiate civil public interest litigation and perform its duties in accordance with the law. Only under the condition that the administrative organ fails to perform its duties according to law, the procuratorial organ should bring a lawsuit to the people's court according to law. 6, the litigation request is different. In the environmental civil public interest litigation filed by social organizations and the environmental civil public interest litigation filed by procuratorial organs, because the defendants are all civil subjects that cause environmental pollution or ecological environmental damage, the litigation claims are similar. Generally, the defendants are required to stop the infringement and eliminate Danger, restore to the original state, compensate for the cost and loss of ecological environment restoration, publicly apologize, and pay legal fees and litigation fees. For the environmental administrative public interest litigation initiated by the procuratorial organ, because it is aimed at the administrative act that the administrative organ fails to exercise its functions and powers or omission according to law, resulting in the infringement of national interests or social public interests, the litigation request of the procuratorial organ generally requires the administrative organ to perform its duties in accordance with the law. In the ecological environment damage compensation litigation, from the current practice of China's ecological environment damage compensation litigation cases, although the provincial, municipal and prefecture-level governments as the ultimate goal of compensation rights holders is to repair the damaged ecological environment, but considering the ecological environment damage compensation litigation is the compensation rights holders and compensation obligors in the pre-litigation consultation procedure for a series of issues such as repair and liability to bear no agreement before the lawsuit, therefore, the right holder's claim against the defendant in the ecological environmental damage compensation litigation mainly focuses on the defendant to pay the ecological damage repair costs and attorney's fees and litigation costs, so as to carry out alternative repair. 7. Different means to achieve the goal Although the ultimate goal of environmental public interest litigation and ecological environmental damage compensation litigation filed by different subjects is to prevent the ecological environment and other national interests and social public interests from being damaged, the focus of the three litigation systems, that is, the means to achieve the goal, is different. Public interest litigation initiated by social organizations focuses on achieving the ultimate goal by imposing civil sanctions on civil subjects that harm the public interest of society, and by providing relief or repair to the damaged or destroyed environment; Ecological environmental damage compensation litigation focuses on the repair of ecological environmental damage that has occurred by urging provincial and municipal governments to consult with the obligor for compensation and filing a lawsuit; The procuratorial organ's environmental public interest litigation focuses on ensuring and urging the administrative organ to exercise its power according to law through legal supervision and restriction on the administrative acts made by the administrative organ, so as to prevent the damage of national interests and social public interests. Two links 1. Mutual support According to the "Ecological Environment Damage Compensation System Reform Plan", the provincial, municipal and prefectural governments, as the right holders of compensation, find that the ecological environment damage needs to be repaired or compensated after investigation, and no agreement is reached after consultation with the compensation obligor, the provincial, municipal and prefectural governments and their designated departments or agencies shall promptly file a civil lawsuit for compensation for ecological environment damage. At the same time, according to Article 55 of the Civil procedure Law, organs and relevant organizations prescribed by law may bring a lawsuit to the people's court for acts that pollute the environment and infringe upon the legitimate rights and interests of many consumers, and the people's procuratorate may support the prosecution. The "Ecological Environment Damage Compensation System Reform Plan" also clearly stipulates that the Supreme People's Procuratorate is responsible for guiding the procuratorial work related to ecological environment damage compensation. When procuratorial organs initiate public interest litigation, especially civil public interest litigation, they also need the support and cooperation of relevant administrative organs in investigation and evidence collection, appraisal and evaluation, etc., in order to effectively perform their functions. 2. Complement each other The "Ecological Environment Damage Compensation System Reform Plan" limits the scope of compensation rights holders from the provincial government during the pilot period to the municipal and prefectural governments, but it still does not give the county and municipal governments the qualifications of compensation rights holders. At the same time, the "Eco-Environmental Damage Compensation System Reform Plan" also imposed certain restrictions on the scope of application, which is limited to "the occurrence of large and above environmental emergencies" and "designated in the national and provincial main functional area planning. There are three situations: key ecological function areas, prohibition of environmental pollution and ecological damage in development zones", and "other serious consequences affecting the ecological environment. If the scope of the impact of ecological environment damage fails to reach the severity of the above provisions, even if it causes damage to the local social and public interests, it can not be investigated for the responsibility of compensation for ecological environment damage according to the reform plan of ecological environment damage compensation system, and this phenomenon of ecological environment damage in local areas is just a common chronic disease in all parts of the country. In this case, only in accordance with the relevant provisions of the Civil Procedure Law, the procuratorial agency can support the "organs and related organizations prescribed by the law", or initiate civil public interest litigation on its own, and fully perform the public interest litigation functions through the procuratorial agency to make up for the above-mentioned system design. The blank caused by the restrictions. In addition, when the compensation right holder is negligent in performing his duties, the procuratorial organ can urge him to actively perform his duties by means of procuratorial suggestions, and jointly promote the compensation and restoration of ecological environment damage.

2021-11-05

Point of View | Limited Company Separation Process Design Combined with Fiscal and Tax Planning

Foreword With the rapid development of market economy, more and more companies are involved in the separation. The intrinsic motivation of enterprise separation usually includes improving efficiency, dividing risk, dividing business segments, and obtaining tax benefits. The separation of a limited company usually includes internal decision-making, financial division, separation registration, tax filing and other procedures, the author combined with fiscal and tax planning through this article to sort out and plan the above procedures, with a view to the readers have some enlightenment. 1. the development of discrete programmes In the case of conditions, the separation scheme can be formulated in advance before the separation, and the improvement of the feasible separation scheme can greatly improve the smooth degree of the implementation phase. The content of the separation plan usually includes the reason and purpose of the separation, the number of surviving companies and derivatives, the scope of business and the size of the registered capital of each company after the separation, and the division of financial assets and liabilities. Special attention is paid to fully consider the relevance of the business scope, registered capital scale and financial assets and liabilities of each company after the separation when formulating the separation plan, so as to prepare for the convergence of financial data before and after the separation. Implementation of 2. discrete programmes Separation procedures usually include internal decision-making, separation agreement signing, financial division, approval and registration, etc., the program implementation stage of the procedures need to be interspersed, the following author will be the specific implementation process and legal basis one by one introduced as follows: 1, approved the name of the derivative company. According to Articles 22 and 23 of the Measures for the Administration of Enterprise Name Registration, the establishment of a derivative company still requires pre-approval of the name. When approving the name of a derivative company, the application for pre-approval of the name of the enterprise shall state the name of the enterprise, domicile, registered capital, scope of business, name or name of the investor, amount of investment and proportion of investment, authorized entrustment opinions, and shall be signed and sealed by all investors. 2, to the general meeting of shareholders to vote on the separation resolution. According to Article 37 of the the People's Republic of China Company Law, the division of the company is within the scope of the powers of the general meeting of shareholders, so the resolution of the division of the company needs to be submitted to the general meeting of shareholders for voting, and according to Article 43 of the the People's Republic of China Company Law, it must be approved by shareholders representing more than 2/3 voting rights. 3. Publication of separate announcement According to Article 175 of the the People's Republic of China Company Law, the company shall notify its creditors within ten days from the date of the resolution on division and make an announcement in the newspaper on the 30th. 4, the preparation of balance sheet and financial list, the drafting of separation agreements. According to Article 175 of the Company Law of the the People's Republic of China, when a company is separated and its property is divided accordingly, a balance sheet and a list of property shall be prepared. After the division of the property is completed, the surviving company and the derivative company enter into a Separation Agreement. The contents of the Separation Agreement usually include the method of separation, the registered capital and equity structure of the parties before and after the separation, the business division plan, the property division plan, the debt division plan, the personnel placement plan and the dispute resolution. 5. Separate registration According to Article 38 of the Regulations on the Registration of the People's Republic of China Companies, if a company is divided, it shall apply for registration 45 days after the date of the announcement. 6. Separate tax registration After the separation registration of the company, the company shall carry out tax separation registration to show that each company pays tax separately. Special attention should be paid to two points: first, separate filing should be carried out before tax separation registration; second, if the separation involves the interests of special tax treatment of asset reorganization, the equity shall not change in December before and after the separation. 7, asset registration separation change. After the separation of the company, the registered assets divided into the derivative company shall be gradually registered for the separation and change. Concluding remarks The division of the company involves the implementation of internal decision-making procedures, drafting of resolutions of the shareholders' meeting, division agreements and other legal work, as well as financial and accounting work such as property division, accounting division, preparation of balance sheets and property lists, as well as tax work such as tax division registration, asset reorganization and special tax treatment. Therefore, lawyers with financial and tax knowledge background participate in the implementation of the division work, with particularly good results.

2021-11-04

Review of Construction Environmental Capital Law (No. 29) | An "Salary"! The Provisions on Wage Deposit for Migrant Workers in the Field of Engineering Construction will come into effect today.

Affected by the new coronary pneumonia epidemic and the uncertainty of the external environment, the recent hidden dangers of wage arrears in some industries have emerged, and the risk of upstream arrears in real estate development projects in some areas may increase the risk of downstream wage arrears. How to prevent the occurrence of wage arrears of migrant workers? The Ministry of human resources and social security, the Ministry of housing and urban rural development, the Ministry of transport and other departments issued the "provisions on wage deposit for migrant workers in the field of engineering construction", which will come into effect on November 1, and become an important safeguard measure to solve the problem of wage arrears in the field of construction. Wage deposit refers to the special fund set up by the general contractor in the field of engineering construction in the bank and stored in accordance with a certain proportion of the amount of the construction contract, which is specially used to pay the wages of migrant workers who provide labor for the contracted project. Since 2016, China has fully implemented the wage deposit system in the field of engineering construction, and various localities have successively established and implemented the system, and achieved good results. However, due to the lack of unified regulations at the national level, there are differences in account opening, storage subject, proportion, form and so on, which makes it difficult for enterprises to comply with the actual operation, and some of them have been increased layer by layer, increasing the financial pressure. The establishment of a security deposit system should not only safeguard the basic rights and interests of migrant workers, but also reduce the burden on enterprises, reduce the occupation of enterprise working capital, and straighten out the management system to form a unified national standard. How does the construction general contractor store the wage deposit? In the past, some places required the proportion of funds to be stored up to 5% or even higher. The new "Regulations" uniformly require that this proportion shall not be less than 1% and not more than 3% in principle. In response to the problem that some localities require construction units, construction general contracting units, subcontracting units, and labor subcontracting units to store wage deposits, the "Regulations" clarify that the main body of wage deposit storage is the general construction contractor, and other entities do not need to store. At the same time, wage deposits can be replaced by bank guarantees issued by banking financial institutions, and conditional areas can also explore the introduction of engineering guarantee company guarantees or engineering guarantee insurance. It is clearly stipulated that if there is no wage arrears for two consecutive years, the storage proportion of new projects shall be reduced by no less than 50%; if there is no wage arrears for three consecutive years and the real-name management of employment and the special account system for migrant workers' wages are implemented as required, the new projects can be exempted from the storage of wage deposit. Li Xinwang, director of the Labor Security Supervision Bureau of the Ministry of Human Resources and Social Security, said that the regulation of the storage ratio is to encourage law-abiding enterprises and punish untrustworthy subjects. In addition, if the construction contract amount is less than 3 million yuan, and the project undertaken by the general contractor for the construction of the project within one year before the signing of the construction contract has no wage arrears, each region may, in combination with the actual situation, exempt the project from storing wage deposit. Can the wage deposit be redirected? In the past, many places required companies to store wage deposits in special financial accounts set up by local regulators. Practice has proved that this model not only occupies the liquidity of enterprises, but also easily generates the risk of account violations. For this reason, in the future, the general construction contractor will independently choose the handling bank, and store the wage deposit in its own bank account, and make it clear that the principal and interest belong to the enterprise, and the enterprise can freely withdraw the interest at any time. When the project is completed, the supervision department receives the return application from the enterprise, and immediately releases the account supervision after 5 days of examination and no arrears of wages and 3 days of bank confirmation, and the funds are freely controlled by the enterprise. At the same time, the Ministry of Human Resources and Social Security has also established an inventory mechanism to ensure that the funds are returned in a timely and in place in response to the problem that individual enterprises forgot to apply for return in the past. How to use the wage deposit in the event of wage arrears? According to the "Regulations", when wages are in arrears, the human resources and social security department shall make an administrative decision to order the payment within a time limit or in advance. If the construction general contracting unit refuses to perform when it is due, the local human resources and social department may issue a "Notice of Payment of Migrant Workers' Wage Deposit" to the bank, and the bank will directly pay the corresponding amount of money from the wage deposit account to the unpaid migrant workers. Li Xinwang introduced, after the use of wage margin, the construction general contractor needs to make up the wage margin or open a new bank guarantee. If the wage deposit is not stored or made up in accordance with the regulations, the human resources and social security department and the engineering construction department of the relevant industry shall order it to make corrections within a time limit according to their duties; if it fails to make corrections within the time limit, it shall be ordered to stop the project and be fined; if the circumstances are serious, the construction unit shall be given penalties such as restricting the construction of new projects, lowering the qualification level and revoking the qualification certificate." In addition, within 2 years before the construction general contractor stores the wage deposit or submits the bank guarantee letter, if the wage is in arrears in the construction project in the wage deposit management area, the wage deposit storage ratio shall be appropriately increased by not less than 50%; due to arrears of migrant workers' wages are included in the "list of serious dishonest subjects", the increase rate shall not be less than 100. At the same time, it is stipulated that the wage deposit can only be used to pay off arrears of wages, not for other purposes, nor can it be sealed up, frozen or allocated without reason.

2021-11-03

Viewpoint | Talking about the management of bankruptcy business archives

Abstract: The file formed in the bankruptcy business is the crystallization of the collective wisdom of all parties and an important material for research and exchange. Strengthening the management of bankruptcy business files is of great significance to the bankruptcy management team. Key Words: Bankruptcy Business Archives Archives Management With the vigorous development of the market economy, a certain number of "zombie enterprises" have appeared in our country, which has caused a certain negative impact on the national economic development and the improvement of people's living standards. In order to properly solve the problem of "zombie enterprises", my country's legislative and law enforcement agencies have conducted active and effective explorations and summaries, and successively promulgated the "the People's Republic of China Enterprise Bankruptcy Law (Trial)", "the People's Republic of China Enterprise Bankruptcy Law" and related judicial interpretations. On the basis of the group, the bankruptcy administrator system was established. The author had the honor to participate in the law firm as an administrator or administrator member of several bankruptcy business, and fully participated in the filing of archives, deeply aware of the importance of bankruptcy business file management, now on the bankruptcy business file management to talk about a few shallow views, in order to play a brick-and-mortar effect. Bankruptcy Business File According to the relevant provisions of the the People's Republic of China Archives Law (2016 Amendment), the Measures for the Filing of Lawyers' Business Archives, the Measures for the Management of Lawyers' Business Archives and the the People's Republic of China Enterprise Bankruptcy Law issued by the Ministry of Justice and the State Archives Administration, the author believes that, insolvency business files refer to the various forms of historical records of words, charts, audio and video that are directly formed by the parties to the insolvency business (creditors, debtors, liquidation groups or administrators, courts, investors, audit and evaluation agencies, etc.) in the insolvency business, which are of value to the State and society. The Significance of Bankruptcy Business Archives Management The management of bankruptcy business files is of great significance, including but not limited: (I) bankruptcy business file is a comprehensive record of the whole process of the relevant bankruptcy business, which belongs to the evidence category of litigation law. Standardized management of bankruptcy business files has a demonstrative effect when disputes arise between the parties. (II) the standardized management of bankruptcy business files is conducive to the management of research, summing up experience and lessons, and improving the level of business. (III) is conducive to internal training and external exchanges. Bankruptcy business archives management practice Summarizing the wisdom of the bankruptcy business team and the relevant file management personnel, the author believes that the bankruptcy business file management can be carried out according to the following process: (I) uniform instrument format In order to facilitate the standardized management of the business, the format of the creditor's rights declaration materials (declaration registration form, power of attorney, legal representative or responsible person's identity certificate, etc.) and the legal documents issued by the manager shall be standardized and unified, including font, font size, line spacing, etc. In addition, the administrator numbers the creditors uniformly according to the chronological order in which they file their claims. The legal documents issued by the administrator shall have the document number (e. g. "AB Broken Tube Zi No. X", "AB" is the abbreviation of the debtor), and the document number shall be arranged in accordance with the chronological order issued by the documents. (II) collection classification According to the actual situation of the bankruptcy business, the administrator shall collect, classify and store the archival information formed in each bankruptcy business according to the chronological order in which the various types of information are formed. The file information of bankruptcy business can be generally divided into five categories, namely, creditor's rights, asset class, procedural class, audit class and financial class, as follows: The creditor file generally includes:(1) the creditor's claim declaration data submitted by the creditor;(2) the creditor's declaration registration form;(3) the debtor's creditor's rights and debts list;(4) the notice of the manager's review opinion and the receipt of service;(5) the creditor's objection and the attached evidence;(6) the notice of the manager's review opinion and the receipt of service;(7) the creditor's claim and debt offset application;(8) voting letter of employee creditor's rights;(9) voting letter of creditors on the draft reorganization plan;(10) letter of confirmation of creditor's rights;(11) letter of choice of creditor's rights confirmation method;(12) confirmation form of creditor's bank account information;(13) list of unopposed creditor's rights and court ruling;(14) assistance in execution documents served by judicial authorities to the administrator;(15) information on withdrawal of creditor's rights settlement;(16) Certificates of payment for the settlement of claims;(17) Other relevant information. Asset files generally include:(1) photocopies of debtor's certificates, signatures, bank account statistics and handover forms;(2) the debtor's industrial and commercial registration files;(3) the debtor's property takeover and entrusted custody;(4) the contract signed by the debtor;(5) notice of continuing to perform the contract, notice of termination of the contract and investigation records;(6) information on the debtor's foreign investment;(7) notice of creditor's rights settlement;(8) Objection of creditors to the notice of liquidation;(9) Information on construction and finalization of construction in progress;(10) Information on property preservation and cancellation of preservation;(11) Entrusted financial audit, asset evaluation contract and audit and evaluation report;(12) Report and attachment of assets and business affairs handed over to the debtor;(13) Other relevant information. The procedural archives generally include:(1) the court's ruling on accepting the debtor's bankruptcy reorganization and the decision on appointing the administrator;(2) application for opening the administrator's bank account, engraving the administrator's seal and court notice;(3) approval form for the use of the administrator's seal;(4) notice and announcement of creditor's declaration of creditor's rights;(5) decision of the debtor to continue or suspend business;(6) the decision, report and attachment of the manager to appoint the management team;(7) the court's reply;(8) the postal service contract signed by the manager;(9) the inquiry result of the postal express mail number of the manager's mail document;(10) the responsibility letter for safe production target management;(11) all kinds of service receipts;(12) online creditor meeting planning and live broadcast service contract;(13) creditor meeting information;(14) The authorization procedures and meeting minutes of the members of the creditor committee;(15) Information on recruiting reorganization investors;(16) Reorganization investment agreement;(17) Draft reorganization plan;(18) The court's ruling on approving the draft reorganization plan;(19) Documents issued by the administrator;(20) Judgment documents for litigation and arbitration cases;(21) Other relevant materials. The audit information includes:(1) the entrustment agreement between the manager and the auditor for the audit of the cost of the construction in progress; and (2) the audit report on the cost of the construction in progress issued by the auditor. Financial information includes: all financial information formed by the administrator in the insolvency proceedings, such information is compiled and filed by professional financial personnel hired by the administrator in accordance with the financial management process, and is not within the scope of this article. (III) finishing Comprehensively sort out and check all the documents and materials formed in the bankruptcy business, fill in the missing materials and remove the materials that do not need to be filed. In the process of filing, only one copy of written materials with the same content is generally stored, except for those with special needs. (IV) volume, write page number The bankruptcy business archives are divided into volumes according to the criteria of category, relevance and chronological order of formation. Each volume of archival materials shall be numbered page by page using Arabic numerals, and those with words on both sides shall be numbered on both sides. The page number is located in the upper right corner on the front and in the upper left corner on the back (pages without words are not numbered). (V) Compilation Volume Directory After the division of volumes and the preparation of page numbers are completed, an in-volume catalog is prepared, taking the debt catalog as an example, in the following format: List of creditor's rights information "AB" in the "file number" column in the volume catalog is the abbreviation of the debtor, and "x" is the sequence number of the volume in similar files. The "page number" column generally indicates the first page number of the corresponding data, but the last line of the "page number" column indicates that the format of the last data in the volume is "first page number-last page number", such as "201-206". (VI) printing of file case cover and engraving of seal According to the material requirements of national archives management, the cover of archives shall be printed in the following format: According to the classification of archival materials, the four seals of "creditor's rights", "assets", "procedures" and "audit" are engraved respectively. (VII) binding The archives shall be arranged in the order of the case cover, the contents of the case, the case materials and the bottom of the case, and bound into a book. File binding can choose to use the following ways:(1) the use of cotton rope, three holes nailed;(2) the use of riveting tube, two holes nailed. The "category" column on the cover is stamped with the engraved "creditor's rights" and other seals; The column of "document name" indicates the contents of the information in the volume, such as "XX company's creditor's rights declaration data"; The column of "filing person" shall be signed or stamped by the file collator. (VIII) printing file box, box. In order to facilitate file management, after the file data is classified and ordered, it should be classified and loaded into the file box. The front and spine of the file box are formatted as follows: Due to the large number of similar files, the blank column under "category" in the spine of the file box can be stamped with engraved seals such as "creditor's rights. Since the full number of the same bankruptcy business file is unique, the administrator may engrave a seal with an Arabic numeral number and affix it in the blank column under the "full number. The "storage period" is recommended as "long-term" and can be printed directly on the ridge of the file box. "Volume number" refers to the starting and ending file numbers of the files loaded into this file box, such as "AB creditor's rights 0001-0006". "Box number" refers to the sequence number of this file box in the same type of file box. The contents in the cover of the archive box can be filled in by the archives management organization (archives or the archives of the law firm). (IX) Compilation of Full Citation Catalogue and Index of Cover and Full Citation Catalogue In order to facilitate the management and use of archives, the full citation directory and the cover and full citation directory index shall be compiled for the classification of archives. 1. Compile full citation catalogue The administrator is required to compile a full citation catalogue according to the contents of the in-volume catalogue, using the full citation catalogue of claims as an example, in the following format: full citation directory In the full citation catalogue, the "responsible person" is the full name of the manager, the "title" is the name of the data, and the "page number" column generally indicates the first page number of the corresponding data, but the last line of the "page number" column indicates the "first page number-last page number" of the last data in the volume, such as "201-206". 2. Prepare the cover of the full citation catalogue. When binding catalogues, it is generally necessary to bind multiple full-citation catalogues of the same kind of archives together. By compiling the cover of the full-citation catalog, relevant information can be intuitively understood. The format of the full citation catalog cover is as follows: Full Citation Catalog Cover 3. Compile index of full citation directory In order to more easily find the various types of full citation directories and file files in which file box, it is necessary to compile a full citation directory index, for example, the debt category full citation directory index, the format is as follows: Full Citation Directory Index 4. Sorting and binding According to the full citation directory cover, full citation directory index, full citation directory order, bound into a book. Binding shall use cotton string, three holes nailed. (X) File Transfer In general, the number of files formed by each bankruptcy business is large. The bankruptcy reorganization business in which the author participated has bound more than 1000 files of various types, used more than 500 file boxes, and bound more than 10000 pages of full citation catalogue, cover and full citation catalogue index. For such a large file, it is more appropriate to transfer it to the archives where the bankrupt enterprise is located. Of course, if the number of files formed by the bankruptcy business is small or the archives where the bankrupt enterprise is located do not agree to receive them, the administrator will still keep them. The archives management personnel shall conduct strict examination when receiving the archives. Those who do not meet the requirements of the filing regulations shall be returned to the filing person for rearrangement. After all the archives are qualified, the handover procedures shall be handled. The 21st century is an era of vigorous development of artificial intelligence and knowledge economy. As intelligent workers, lawyers should have the enthusiasm and sense of urgency to make the crystallization of wisdom produce economic benefits and social effects. Strengthening the management and use of bankruptcy business files and stringing "pearls" into "necklaces" is the mission entrusted to us by the times. As lawyers, we are duty-bound and should take active action to forge ahead!

2021-11-03