23
2023-10
The installation of charging piles for household new energy vehicles is rapidly popularizing throughout the country, and disputes between owners and property service companies are increasing due to installation problems. How to define the rights and responsibilities of property companies and owners' meetings, and how to balance the rights of owners with public interests and public safety is worth thinking about. This paper intends to analyze the above problems through five cases.
2023-10-23
28
2023-09
10
2023-07
1. issues raised Fire inspection and acceptance refers to the qualified investigation of fire inspection conducted by the fire department during the completion and operation of enterprises and institutions. The completed construction project is generally submitted by the construction unit to the housing and construction department for fire control acceptance of the project, and can be put into use only after passing the acceptance. Because of the safety of the people's lives and property, which is directly related to fire safety, the third paragraph of Article 13 of my country's Fire Protection Law clearly stipulates: "Construction projects that should be subject to fire protection acceptance in accordance with the law, without fire protection acceptance or unqualified fire protection acceptance, It is forbidden to put into use; other construction projects that fail to pass random inspections in accordance with the law shall be stopped." In practice, there are many houses that are rented out without fire inspection, how to judge the validity of the above-mentioned housing lease contract, how to understand the provisions of Article 13 of the Fire Law, there are different views in judicial practice, this paper intends to analyze the above-mentioned problems through four cases. 2. Related Cases and Referee Views The (I) determines that the lease contract is invalid on the grounds that whether the leased house has passed the fire protection acceptance is related to the public interest, and the provisions of Article 13 of the Fire Protection Law shall be applied. Case 1: Dispute over Housing Lease Contract between Wang Mou 1 and Ke Mou (People's Court of Menyuan Hui Autonomous County, Qinghai Province [2018] No. 469, 2221 Minchu) The court held that although the house lease contract between the plaintiff Wang mou 1 (counterclaim defendant) and the defendant ke mou (counterclaim plaintiff) was the true intention of both parties, the whole building system indemnificatory housing project to which the house involved belongs is a large-scale densely populated place, and whether it has passed the fire control acceptance is related to the social and public interest. Therefore, the house involved in this case should be identified as a house that must be checked and accepted by the fire department of the public security organ. However, before the end of the court debate in this case, the whole building to which the house involved belongs has not yet been checked and accepted. In this case, the plaintiff Wang Mou 1 (counterclaim defendant) rented the house involved to the defendant Ke Mou (counterclaim plaintiff) who runs the Internet cafe, which obviously violated the provisions of Article 13 of the Fire Law. When the defendant Ke entered into the contract, he failed to fulfill his duty of careful examination, so that he could not go through the relevant fire-fighting procedures. The parties shall bear the liability for the negligence of the contract for the invalid lease of the house. (II), even if the house has been completed and accepted or fire-fighting acceptance after the conclusion of the lease contract, the contract will be found to be invalid on the grounds that the lease contract was signed and the time agreed to deliver the house was before the fire-fighting acceptance. Case 2: Bole Jixiangsheng Real Estate Development Co., Ltd. and Huo Yiming Housing Lease Contract Dispute (Xinjiang Uygur Autonomous Region Bortala Mongolian Autonomous Prefecture Intermediate People's Court [2021] Xin 27 Min Zhong No. 352) The court of first instance held that: Articles 10 and 13 of the "the People's Republic of China Fire Protection Law" stipulate that construction projects that require fire protection design in accordance with national engineering construction standards shall implement a construction project fire protection design review and acceptance system. Projects that should be subject to fire control acceptance according to law shall not be put into use without fire control acceptance or unqualified fire control acceptance. Although the houses involved in this case have been completed and accepted between November 2017 and April 2020, they are prohibited from being put into use without fire control acceptance. The "Jixiangsheng Commercial Plaza Store Lease Management Contract" signed by Huo Yiming and Bole City Jixiangsheng Real Estate Company on November 2, 2017 violated the mandatory provisions of the the People's Republic of China Fire Protection Law and was an invalid contract. The court of second instance held that on November 2, 2017, Bole city Jixiangsheng Real Estate Company and Huo Yiming signed the "Jixiangsheng Commercial Plaza Lease Management Contract", which agreed that the delivery time of the store would be November 11, 2017. On April 14, 2020, Jixiangsheng Commercial Plaza passed the fire acceptance. Both parties sign the contract and agree to deliver the house before passing the fire inspection. Articles 10 and 13 of the "the People's Republic of China Fire Protection Law" stipulate that construction projects that require fire protection design in accordance with national engineering construction standards shall implement a construction project fire protection design review and acceptance system. Projects that should be subject to fire control acceptance according to law shall not be put into use without fire control acceptance or unqualified fire control acceptance. Therefore, the "Jixiangsheng Commercial Plaza Store Lease Management Contract" signed by Huo Yiming and Bole City Jixiangsheng Real Estate Company on November 2, 2017 violated the mandatory provisions of the the People's Republic of China Fire Protection Law and was an invalid contract. The subject matter of the (III) lease has passed the fire safety acceptance, which is not a necessary condition for determining the validity of the housing lease contract. As long as the subject matter of the lease obtains a construction project planning permit, it is not appropriate to deny the validity of the lease contract. Case 3: Disputes over Lease Contracts between Li Huanliang and Liu Zhenzhu (Intermediate People's Court of Bayingoleng Mongolia Autonomous Prefecture, Xinjiang Uygur Autonomous Region [2023] No. 42, New 28 Minzong) The Court held that: This Court held that Article 153 of the the People's Republic of China Civil Code stipulates that "a civil juristic act that violates the mandatory provisions of laws and administrative regulations is invalid. However, the mandatory provisions do not render the civil juristic act invalid. Civil juristic acts that violate public order and good morals are invalid." The provisions of Article 10 and the third paragraph of Article 13 of the the People's Republic of China Fire Protection Law do not invalidate the civil legal acts signed by both parties to the lease contract. The shop involved in the case is a market shop, and the subject matter of the lease has passed the fire safety acceptance, which is not a necessary condition for determining the validity of the housing lease contract. Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Urban Housing Lease Contract Disputes stipulates that "the lessor has not obtained a construction project planning permit or has not been constructed in accordance with the provisions of the construction project planning permit. The lease contract concluded with the lessee is invalid." The appellee also provided that he had obtained the construction project planning permit, and the court of first instance determined that the lease contract between the two parties was valid and correct, and the court confirmed it. (IV) without completion acceptance and fire acceptance, it is only an administrative provision for delivery and use, not a legal reason for the invalidity of the contract. Case 4: Dispute over Housing Lease Contract between Guiyang Legend Hospital Co., Ltd. and Guizhou Fu 'an Real Estate Development Co., Ltd. (Guiyang Intermediate People's Court of Guizhou Province [2020] Qian 01 Min Zhong No. 4579) The court held that: in addition, for the leased property involved in the case claimed by Legend Hospital without completion acceptance and fire control acceptance, in accordance with Article 61 of the the People's Republic of China Construction Law, "the construction project can only be delivered for use after the completion of the construction project has passed the acceptance; those who have not passed the acceptance or the acceptance shall not be delivered for use." And the second paragraph of Article 13 of the "the People's Republic of China Fire Protection Law", "Construction projects that should be subject to fire protection acceptance according to law, without fire protection acceptance or unqualified fire protection acceptance, shall be prohibited from being put into use; other construction projects that fail to pass random inspections according to law shall be stopped. use." The provisions of the "housing lease contract" should also be invalid reasons, the court believes that without the completion of acceptance and fire acceptance, only the delivery and use of the management provisions, is not the legal reason to determine the invalidity of the contract, so the court also does not accept this. 3. Summary Through the above-mentioned cases, adjudication point of view, there is a certain controversy in the judicial practice of the validity of the house lease contract without fire acceptance. The focus of the dispute is mainly whether the provisions of Article 13 of the Fire Protection Law are administrative mandatory provisions or effective mandatory provisions. Our lawyers tend to think that this provision is a management mandatory provision, because although the provision stipulates that the house is prohibited from being put into use without fire inspection or fire inspection, it does not explicitly state that violation of this provision will result in the invalidity of the contract. And combined with the punishment measures that Article 58 of the Fire Protection Law stipulates that fire control acceptance should be carried out and put into use without acceptance, it can better reflect that the legislative intention of Article 13 of the Fire Protection Law is for the needs of administrative management. Secondly, the contract of external lease without fire acceptance is recognized as effective to better protect the legitimate rights and interests of the contract-keeping party. According to article 157 of the Civil Code, in the event that the contract is invalid, the parties shall return the property or compensate for the discount, and the compensation claimed by the breaching party shall include only the losses caused by the breaching party. And the invalidity of the contract is a cause that both parties can claim, if the lessor in the course of the performance of the contract to claim that the contract is invalid and thus achieve its purpose of termination, the lessee's rights and interests will be further infringed. In the case of the validity of the contract, if the contract stipulates the liability for breach of contract, as long as the agreed breach of contract is not excessively higher than the loss caused to the contract-keeping party, the contract-keeping party has the right to require the breaching party to bear the liability for breach of contract if it fails to cooperate with the fire acceptance procedures or the house fails to pass the fire acceptance. Therefore, it is not appropriate to consider a lease contract that has not passed the fire inspection as an invalid contract. Finally, judging from the judicial practice in recent years and the answers to this question by the local courts, the applicable space for finding the above-mentioned contract invalid will become smaller and smaller. On the one hand, the court in line with the principle of modesty for the determination of the invalidity of the contract more cautious, more respect for the autonomy between the parties, more attention to maintain the stability of the transaction. On the other hand, the "Beijing Higher People's Court's Several Answers on the Trial of Housing Lease Contract Dispute Cases" (Jinggao Fafa (2013] No. 462) also clarified the point of view on this issue. "If one of the parties requests to confirm that the house lease contract is invalid on the grounds that the leased house has not been completed or the fire control acceptance, or the acceptance is unqualified, it will not be supported. If the leased house fails to complete the project or pass the fire control acceptance due to the lessor's reasons, the house does not meet the conditions for use, and the lessee requires the termination of the lease contract in accordance with the (III) provisions of Article 8 of the interpretation of the Supreme people's Court on several issues concerning the specific application of law in the trial of disputes over urban housing lease contracts, which shall be supported." 4. Risk Alert 1. The purpose of the fire inspection and acceptance filing system is to ensure the quality of the house and maintain the safety of people's lives and property. Therefore, although the fire inspection and acceptance does not necessarily lead to the invalidity of the contract, the acceptance is still a prerequisite for the smooth use of the house. It is forbidden to put into use without fire control acceptance or unqualified acceptance; if other construction projects are unqualified after random inspection, there will also be a risk of stopping use. 2. In order to avoid the risk that the purpose of the contract cannot be achieved due to the failure of the fire inspection, it is recommended that the lessor and the lessee clearly agree on the subject of responsibility for fire inspection and related liability for breach of contract in the lease contract.
2023-07-10
15
2023-04
The legal perspective of minerals. The new policy of mining rights transfer proceeds.
On April 14, the Ministry of Finance, the Ministry of Natural Resources, and the State Administration of Taxation jointly issued the "Measures for the Collection of Proceeds from the Transfer of Mining Rights" to adjust the method of collecting proceeds from the transfer of mining rights. The Measures shall come into force on May 1, 2023, and the Interim Measures for the Administration of the Collection of Proceeds from the Transfer of Mining Rights (Caizong [2017] No. 35) and the Notice of the Ministry of Natural Resources of the Ministry of Finance on Further Clarifying Issues Related to the Collection and Administration of Proceeds from the Transfer of Mining Rights (Caizong [2019] No. 11) shall be repealed at the same time. The Measures for the Collection of Proceeds from the Transfer of Mining Rights are detailed, adjusted and supplemented in the following areas: 1. Collection management system On the basis of maintaining the stability of the overall share ratio between the central and local governments, the provisions on the share of the proceeds from the transfer of mining rights in different situations shall be refined and clarified. Link up with the reform of the transfer of non-tax revenue collection and management responsibilities, and adjust and clarify the collection and management responsibilities between departments. According to the establishment of mining rights, it is clearly stipulated how to determine the expropriation land in complex situations such as cross-provincial, cross-city and county mining rights, as well as oil and gas mining rights. In the collection and management system, it promotes the collection and management policy to keep pace with the times. 2. Method of collection of proceeds from the sale On the one hand, it is clear how the rate of return is levied. Research and formulation of the "Mining Catalog (Trial)" (hereinafter referred to as the "Mining Catalog") in the form of mining rights transfer yield. For the 144 minerals in the Mineral Catalogue (accounting for 83.2 per cent of the statutory 173 minerals), the proceeds from the transfer of mining rights are paid in two parts: "levy by amount" and "levy by rate year by year. Among them, the part of "levy by amount" is determined according to the result of competition in the transfer link, and the difference in owner's equity due to different resource endowments can be reflected in the transfer link. The part of "year-on-year rate collection" shall be paid by the mining right holder on an annual basis according to a certain proportion of the sales revenue (I. e. the rate of transfer) after the mining and sales. On the other hand, the proportion of down payment levied in the form of amount has been reduced, the period of installment payment has been extended to the greatest extent, and the relevant provisions of the market benchmark price have been refined. The optimization and adjustment of the collection method of transfer proceeds is not only conducive to maintaining the market competition mechanism, ensuring the safety and effective use of resources; it also respects the objective laws of mining exploration and development, focuses on solving the problem of the fast pace of collection, and balances the time distribution of the financial burden of mining rights holders. It reduces the cost of enterprises, dispels the concerns of some geological exploration units, encourages speeding up the transfer of mining and production, and releases production capacity as soon as possible. In the way of collecting the proceeds of the sale, the payment pressure on the enterprise is reduced. 3. Contributions and refunds The transfer mechanism of fee source information between natural resources and tax departments is clarified. Provisions have been made for the truthful declaration and payment responsibilities of mining rights holders to ensure that the collection mechanism is implemented. Extend the time limit for mineral rights owners to 30 days from the receipt of payment notices to facilitate their fund-raising. The division of responsibilities and procedures for returning the warehouse have been refined, and it is clear that the local supervision bureaus of the Ministry of Finance are responsible for the return of the central share of the proceeds from the transfer of mining rights. In terms of contributions and refunds, management and service effectiveness have been improved. 4. Convergence of old and new policies Distinguish the three time periods before July 1, 2017, from July 1, 2017 to the date of implementation of the Measures, and after the date of implementation of the Measures, combined with whether the mining rights involve state-funded proven mineral areas and whether the minerals are in the "Minerals" In the Catalogue, detailed regulations have been made respectively. At the same time, it is emphasized that the signed contract or installment payment approval will not be adjusted, and the mining right may continue to pay the remaining part in accordance with the contract agreement or approval. For some enterprises in arrears of mining rights transfer proceeds, one-time payment pressure is greater, allowed to pay in installments. In the convergence of the old and new policies, the classification clarifies the policy of collecting the proceeds of the transfer of the new and old mining rights. The Ministry of Natural Resources stated that the new expropriation method realizes the flexible payment of mining rights transfer income by enterprises, effectively reduces the financial pressure of enterprises, and also ensures that the rights and interests of national resource assets are not lost, which is conducive to the rational adjustment of mineral resource income and promotes the sustainable development of mining.
2023-04-15
14
2023-04
Digital New Media Industry Research | Data Outbound How to Complete Security Assessment
Overseas listing, bond issuance, international cooperative research and development, cross-border trade, etc. will all involve the issue of data exit. With the process of national industry digitization and digital industrialization, data flow is becoming more and more frequent. How to realize the legal and effective use of data and meet the national data security regulations has become a realistic need, so how can enterprises complete the data exit security assessment? 1. what is data and what is data exit Data means any record of information, electronic or otherwise, and the term "any" covers a wide range of visible data. The essence of data export is that the original data generated in China or the collected summary data are obtained by overseas subjects in different ways, such as direct data transmission or storage, or the open data server can be queried or downloaded by overseas subjects. Whether it is active transmission or passive open data, as long as there is a situation obtained by overseas subjects, it belongs to data exit. 2. what data to leave the country needs to complete a security assessment Data security is an obligation that every subject should bear. The value of a single data may not be large, but a large amount of seemingly worthless data will have new functions and even have extremely high utilization value after being aggregated. This is the inestimable role of big data. However, not all data outbound security assessments need to be carried out. Data security assessment must be performed in the following cases: (I) data processors to provide important data abroad; (II) critical information infrastructure operators and data processors that process personal information of more than 1 million persons to provide personal information abroad; Data processors who have provided personal information of 100000 persons or sensitive personal information of 10000 persons to overseas in total are (III) to provide personal information to overseas since January 1 of the previous year; Is it not necessary to conduct a security assessment in addition to the above-mentioned circumstances, the State Network Information Office has the right to specify other circumstances that require the declaration of data exit security assessment. In addition, the concept of the first important data is not clear. Data directly related to national security, the lifeline of the national economy, important people's livelihood, and major public interests belong to the national core data. These seem to be easy to confirm, but it is difficult to distinguish them in practice. If we specialize in a new "little giant" or a single champion manufacturing enterprise collecting a large number of R & D data, we can analyze and infer the R & D path and national development direction of the enterprise by using the data, and even use it for competitors after leaking secrets, resulting in the loss of competitiveness of domestic enterprises. These enterprises are originally the functions of "supplementing the chain", "strong chain" and "extending the chain" of the national industrial chain. Therefore, although it is the data of a single enterprise, however, it is important to complete a security assessment. If ordinary enterprises gather a large amount of information, it will also have an amplification effect. As big data, it still has an inestimable effect. Whether security assessment is needed depends on the specific situation. The national data security system itself also requires the establishment of a data classification and classification protection system. Enterprises need to establish a data security management system in their operations, and designate data security leaders and management agencies to conduct regular assessments of important data. How to 3. Data Exit Security Assessment Declaration The data processor shall declare the data exit security assessment through the local provincial network information office to declare the data exit security assessment. The declaration method is to serve the written declaration materials and attach the electronic version of the materials. After receiving the application materials, the provincial network information office shall complete the completeness inspection of the application materials within 5 working days. If it passes the completeness inspection, the provincial network information office will report the application materials to the national network information office; the national network information office will determine whether to accept and notify the data processor in writing within 7 working days from the date of receiving the application materials submitted by the provincial network information office. Upon completion of the assessment, the data processor will receive a notification of the results of the assessment. If there is no objection to the evaluation results, the data processor shall regulate the relevant data exit activities in accordance with the relevant laws and regulations on data exit security management and the relevant requirements of the evaluation result notice; if there is any objection to the evaluation results, the data processor may apply to the State Network Information Office for re-evaluation within 15 working days after receiving the evaluation result notice, and the re-evaluation result shall be the final conclusion. Core requirements for 4. data exit security assessment If the data must be exported, it is necessary to prove that the act itself is legitimate and necessary. Whether the data exporter has established a data security management system and whether the specific person in charge and organization has the ability to ensure data security. Whether the data flow is safe during and after the exit of the country, and whether the receiving party can continuously ensure data security. Whether there is an agreement between the data exporter and the receiver on the relevant issues, and how the relevant agreement arrangements can be ensured to be implemented correctly and effectively. Specifically, at least the following aspects should be included in the data exit security self-assessment report: The legality, legitimacy and necessity of the purpose, scope and method of (I) data export; (II) the impact of the data security protection policies and regulations and the network security environment of the country or region where the overseas recipient is located on the security of outbound data; whether the data protection level of the overseas recipient meets the requirements of the People's Republic of China laws, administrative regulations and mandatory national standards; (III) the scale, scope, type and sensitivity of the outbound data, and the risks of tampering, destruction, leakage, loss, transfer, illegal acquisition or illegal use during and after exit; Whether (IV) data security and personal information rights and interests can be fully and effectively guaranteed; (V) whether the data processor and the overseas recipient have fully agreed on the obligations of data security protection in the legal documents; (VI) compliance with Chinese laws, administrative regulations and departmental rules; In short, whether data is used abroad or in China, data processing activities should be carried out in accordance with the provisions of laws and regulations, establish and improve the whole process data security management system, organize and carry out data security education and training, take corresponding technical measures and other necessary measures, strengthen data risk monitoring, regularly complete risk assessment, and ensure the effective use of data security, It is beneficial to the country and the people.
2023-04-14
30
2023-03
Introduction Now, more and more people choose to get out of the siege of marriage, and the subsequent division of property has become a very thorny issue for both parties, especially when some people face divorce after a short marriage. At this time, if the property is divided by the other party Half of it is unfair to the other party. In order to avoid and reduce troubles and property losses, more and more couples will choose to pre-engage and post-marital property agreements during the marriage relationship to pre-dispose the property. So, what about the effect of the marital property agreement? Hot Spot Focus The legal property system applicable in our country is the joint system of income after marriage. The so-called "joint system of income after marriage" means that if both men and women get married, there is no explicit written agreement to change the property system, and there is no property other than the personal property belonging to one of the spouses as stipulated in the the People's Republic of China Civil Code, it is shared by the husband and wife. Therefore, in order to avoid property losses caused by divorce, one party often signs a marital property agreement with the other party. This property agreement is legally binding on both parties. A party to a movable property that is capable of immediate performance and has been delivered is not entitled to the right of avoidance. However, if the real estate is involved, the two parties fail to perform the corresponding transfer procedures in accordance with the agreement of the husband and wife property, and the agreement does not agree to be irrevocable, the agreement may face the risk of being revoked. judicial practice In practice, if one party gives his personal real estate to the other party through the husband and wife property agreement before marriage or during the marriage, but fails to register the transfer of ownership, in the event of divorce, one party claims to cancel the property agreement, while the other party claims to continue to perform, what should be done? In judicial practice, although there is no unified standard of adjudication, there are two different ways of adjudication. First, it is believed that the agreement on property between husband and wife, as long as it is the true intention of both husband and wife and does not violate the mandatory provisions of laws and administrative regulations, it should be recognized as an agreement that is valid and legally binding on both parties. The second is that the agreement between the husband and wife on the property is legal and valid, but according to the relevant provisions of the gift contract, "the donor can cancel the gift before the right to the gift property is transferred"; "if the donated property needs to go through registration and other formalities according to law, it shall go through the relevant formalities"; "the gift contract with the nature of social public welfare and moral obligations such as disaster relief and poverty alleviation, or the notarized gift contract, if the donor does not deliver the donated property, the donee may demand delivery." Agreements in the field of marriage and family often involve the terms of property ownership, and the conclusion, validity, revocation and modification of such agreements do not exclude the application of contract law. The author thinks The agreement between husband and wife to return the real estate to one party belongs to the contents of the property agreement, which is legally binding on both parties. However, there is a risk that the party involved may be revoked if it fails to register the change as agreed. 1. If one party agrees to own the real estate under the individual's name to the other party, but cannot handle the transfer registration because the loan has not been returned or fails to handle the transfer registration for other reasons, does the other party have the right to request continued performance? (1) For the property owned by one of the spouses, the individual shall have full ownership and may carry out the act of disposition on his own, although he may agree to give it to the other party. However, if the transfer is not processed and the agreement provides for an irrevocable clause, the autonomy of the parties' consciousness at the time of signing the property agreement should be respected and irrevocable. One party is obliged to assist the other party in the transfer registration procedures. (2) Combined with the understanding and application of relevant provisions in the judicial interpretation (I) of the Civil Code of the Supreme People's Court, the provisions of the Civil Code on the property relationship between husband and wife are special provisions, and the provisions of the Civil Code on Marriage and Family should be applied in priority. Therefore, the agreement on real estate agreement between husband and wife does not need to go through the formalities of property right change, but should be handled in accordance with the agreement. (3) The property between husband and wife is essentially a contract of marital property system, because the act is based on the identity relationship, and often has the purpose of maintaining feelings or living with each other permanently, so it should be presumed that the contract of marital property system is more reasonable, and the provisions of the agreed property system of husband and wife should be directly applied. 2, because China's current real property rights changes in principle to adopt the registration of effective doctrine, if not in accordance with the agreement to handle the transfer procedures, in the context of contract law, one party should enjoy the right of arbitrary revocation. The real estate given by one party to the other party in accordance with the property agreement may be revoked in accordance with the relevant legal provisions of the contract before the transfer procedures have been completed. China's real estate property rights change is based on the principle of registration effectiveness, therefore, has not yet gone through the real estate transfer procedures of the gift, the real estate donor can revoke the gift at any time, the people's court on the gift of the property party divorce claim to cancel the gift contract request should be supported. Legal provisions 1. Article 209, paragraph 1, of the the People's Republic of China Civil Code stipulates that the establishment, alteration, transfer and elimination of real property rights shall be effective upon registration in accordance with the law. 2. The Civil Code of the People's Republic of China provides that the giver may revoke the gift before the right to the gift property is transferred. The provisions of the preceding paragraph shall not apply to a notarized gift contract or a gift contract with the nature of public welfare and moral obligations such as disaster relief, poverty alleviation and assistance to the disabled, which shall not be revoked according to law. 3. Paragraph 2 of Article 464 of the the People's Republic of China Civil Code stipulates that the legal provisions on identity relations such as marriage, adoption, guardianship and other agreements shall apply; if there are no provisions, the provisions of this part may be applied by reference according to their nature. 4. Article 1065 of the the People's Republic of China Civil Code stipulates that men and women may agree that the property acquired during the marriage and the pre-marital property shall be owned by each, jointly or partly by each or partly jointly. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 1062 and 1063 of this Law shall apply. The agreement between the husband and wife on the property acquired during the marriage and the pre-marital property shall be legally binding on both parties.
2023-03-30
29
2023-03
Viewpoint | An analysis of the exit dilemma of the legal representative of a limited company
[Brief]] Although the legal person has an independent subject status, as an abstract organization, the will of the legal person must be expressed externally by a specific natural person. In the design of China's legal person system, the legal representative naturally enjoys the power to carry out civil legal acts in the name of a legal person. Therefore, the "Civil Code", "Company Law", "Regulations on the Registration of Market Entities" and other laws and administrative regulations regulate the legal representative in many aspects. Unfortunately, there are still many difficulties in the withdrawal of the legal representative. Limited company is the most common form of for-profit legal person, this paper takes the legal representative of the limited company as the perspective of the withdrawal of a brief analysis, for the corresponding problem of the practice to provide a little idea. 1. the concept of legal representative The Civil Code stipulates that, in accordance with the law or the articles of association of a legal person, the person in charge of civil activities on behalf of the legal person shall be the legal representative of the legal person. Where a legal representative engages in civil activities in the name of a legal person, the legal consequences thereof shall be borne by the legal person. Legal requirements for the legal representative of a 2. limited company The Civil Code stipulates that if the executive body is the board of directors or the executive director, the chairman, executive director or manager shall serve as the legal representative in accordance with the provisions of the articles of association of the legal person; if there is no board of directors or executive director, the main person in charge as stipulated in the articles of association of the legal person shall be its executive body and legal representative. The Company Law stipulates that the legal representative of the company shall be the chairman, executive director or manager in accordance with the provisions of the articles of association of the company, and shall be registered in accordance with the law. If the legal representative of the company changes, the change registration shall be carried out. From the aforementioned provisions, it is not difficult to see that the legal representative of a limited company belongs to the matters determined by the articles of association and is the registration of the legal person of the company. In terms of scope, the legal representative shall have the position of chairman, executive director or manager. Chairman, Executive Director, Manager and Qualification of 3. Limited Prohibited 1. Chairman, Executive Director The Company Law stipulates that a limited liability company shall have a board of directors with three to 13 members; the board of directors shall have one chairman and may have a vice-chairman. The method for the election of the chairman and vice-chairman shall be stipulated in the articles of association of the company, and the chairman and vice-chairman of a wholly state-owned company shall be designated by the state-owned assets supervision and administration institution from among the members of the board of directors; a limited liability company with a small number of shareholders or a small scale may have an executive director and no board of directors. The statutory powers of the chairman and executive director include presiding over the meeting of the shareholders, convening and presiding over the meeting of the board of directors, etc. 2. Manager The Company Law provides that a limited liability company may have a manager, who shall be appointed or dismissed by the Board of Directors. The executive director may concurrently serve as the manager of the company. Among them, a wholly state-owned company has a manager, who is appointed or dismissed by the board of directors. With the consent of the state-owned assets supervision and administration institution, members of the board of directors may concurrently serve as managers. 3. Qualification prohibition According to the Company Law, senior management refers to the manager, deputy manager, financial officer, secretary of the board of directors of a listed company and other personnel specified in the articles of association of the company. Therefore, the company law fully restricts the qualifications and obligations of directors, supervisors and senior managers of a limited company, that is, the legal representative of a limited company. The company law's prohibition on the qualifications of company directors, supervisors, and senior managers specifically includes: no capacity for civil conduct or limited capacity for civil conduct; for corruption, bribery, embezzlement of property, misappropriation of property, or disruption of the order of the socialist market economy, they are sentenced to criminal punishment, and the execution period is not more than five years, or they are deprived of political rights due to crimes, and the execution period is not more than five years; if a director, factory director or manager of a company or enterprise that has been liquidated in bankruptcy is personally responsible for the bankruptcy of the company or enterprise, and it has not been more than three years since the date of the completion of the bankruptcy liquidation of the company or enterprise; if he is the legal representative of a company or enterprise whose business license has been revoked or ordered to close down due to violation of the law, it has not been more than three years since the date of the revocation of the business license of the company or enterprise; the large amount of debt incurred by the individual has not been paid off when it is due. The effective requirements of the change of the legal representative of the 4.. The legal requirements and qualification prohibitions of the legal representative have been discussed in detail in the previous article. We inevitably have doubts. If the legal representative is prohibited from qualification or loses the status of chairman, executive director or manager during his duties, does the legal representative Of course to withdraw? In order to solve the related problems, we need to clarify the effective elements of the change of legal representative, this view exists in the registration of the effectiveness of the right to say and registration against the effectiveness of two views, limited to space, this article mainly introduces the mainstream point of view. 1. Internal effect of change of legal representative The Supreme People's Court held that the determination of the legal representative of the company is the result of the company's expression of the common will of all shareholders through the articles of association in the case of the dispute over liability for damage to the company's interests [(2021) Supreme Law No. 2]. The Interpretation of the Civil Procedure Law stipulates that the legal representative of a legal person shall be registered in accordance with the law, unless otherwise provided by law, which does not mean that the legal representative of the company is granted by the company registration authority. The registration of the legal representative of the company is only the confirmation of the intention of the legal representative of all shareholders of the company by the administrative organ. The registration of the legal representative of the company in accordance with the law has the effect of publicity, but does not have the effect of determining the true intention of the company on the issue of the legal representative. Similarly, the Supreme People's Court held in Beihai Rongqin Breeding Co., Ltd. and Beihai Ye Kai Breeding Co., Ltd. in the retrial review and trial supervision of enterprise loan disputes [(2021) Supreme Famin Shen No. 1232] that although the change registration of the company's legal representative has the effect of publicity, failure to register is not an effective requirement for the change of the legal representative. Therefore, the change of the company's legal representative is the result of the company expressing the common will of all shareholders through the articles of association, which is applicable to the validity of civil legal acts. 2. The external effect of the change of legal representative. The Civil Code stipulates that if the actual situation of a legal person is inconsistent with the registered matters, it shall not oppose a bona fide counterpart. The Supreme People's Court Bulletin Case Beijing Gongda Real Estate Co., Ltd. and Beijing Xianghe Three Gorges Real Estate Development Company Real Estate Development Company Real Estate Development Contract Dispute Retrial Case [(2009) Minti Zi No. 76] held that the company's legal representative represented the company in civil affairs in accordance with the law. activity. If the legal representative is changed, the change registration shall be made in the administrative department for industry and commerce. The legal representative of the company has been decided by the superior unit to stop his duties when signing the contract, but has not gone through the change registration. If the company claims that the contract is invalid, the people's court will not support it. The Supreme People's Court Bulletin Case China Environmental Protection Technology Group Co., Ltd. and Thumb Environmental Protection Technology Group (Fujian) Co., Ltd. Shareholder Investment Dispute Appeal Case [(2014) Min Si Zhong Zi No. 20] held that the law stipulates that the change of legal representative The significance of registering is to publicize the basic status of the company's will representation to the public. The legal representative of the industrial and commercial registration has the effect of publicity to the outside world. If an external dispute arises from the company's representation by a third party other than the company, the industrial and commercial registration shall prevail. As for the internal disputes between the company and the shareholders arising from the appointment and removal of the legal representative, the effective resolution of the shareholders' meeting on the appointment and removal shall prevail, and the legal effect of the change of the legal representative shall be produced within the company. Therefore, as the sole shareholder of Thumb Company, Environmental Technology Company, its resolution to appoint the legal representative of Thumb Company is binding on Thumb Company. Therefore, the legal representative, as a registered item of a legal person, has the effect of external registration confrontation. During the term of office, the legal representative is prohibited from qualification or loses the position of chairman, executive director or manager, and the legal representative does not withdraw of course. Complete Exit Process and Dilemma of 5. Legal Representative Taking the articles of association as an example, the manager of a limited company shall be the legal representative. The exit process of the change of the legal representative is that the company shall register the change according to law after changing the manager. The change of the company manager is in principle the authority of the company's board of directors, and the company law stipulates that the board of directors exercises the authority to decide on the appointment or dismissal of the company manager and his remuneration matters. From this, we can see that the change of the company manager as the legal representative is an important prerequisite for the legal entity of the company to exercise its powers in accordance with the law. Similarly, taking the articles of association as an example of the chairman and executive director of a limited company, the change of the legal representative in principle also requires the standardized exercise of the legal person organ of the company as a prerequisite, but at this time, it is necessary to take into account many factors such as the division of authority of the shareholders' meeting and the board of directors, as well as whether the proposed chairman has the status of a director. Obviously, the legal representative's exit dilemma mainly comes from the company's legal person organ's irregular exercise of power, such as in the company deadlock, the company is difficult to form an effective organ resolution, the company has neither the will to change, nor the ability to change. 6. Solution Path In order to solve this dilemma, this paper discusses the following aspects. 1. Legal relationship between the legal representative and the company At present, there are no clear legal provisions on the relationship between the legal representative and the company, and there are many different understandings in practice, among which the mainstream view is that the legal representative and the company belong to the principal relationship. The Supreme People's Court Wei Tongbing, Xinjiang Baota Real Estate Development Co., Ltd. and others requested to change the company registration dispute civil retrial case [(2022) Supreme Famin No. 94] held that the legal representative is the person in charge of the company engaged in civil activities on behalf of the company, and the registration of the legal representative has the effect of publicity in accordance with the law. As far as the company is concerned, the legal relationship between the company and the legal representative is entrusted, and the representation of the legal representative is based on the authorization of the company, which is obtained from the time of appointment to the time of removal of the appointment. After the authority of the company removes the legal representative from his post in accordance with the provisions of the articles of association, the representation of the legal representative shall be terminated. Where the shareholders' meeting of a limited liability company dismisses the legal representative of the company in accordance with the provisions of the articles of association, the executive organ of the company shall implement the resolution of the company and handle the industrial and commercial change registration of the legal representative of the company in accordance with the law. 2. Whether the legal representative's arbitrary removal has legal effect According to the theory of entrustment of the legal representative, the legal representative, as a party to the entrustment relationship, has the right to terminate arbitrarily in principle, but limited to the requirement of the company law on the resignation of a director to continue to perform his duties until the successor arrives, the legal representative's right to terminate arbitrarily may be restricted by the commercial organization law. The Supreme People's Court Beijing Zhongzheng Wanrong Pharmaceutical Investment Group Co., Ltd. and Cao Fengjun Company's Resolution Dispute Re-examination Case [(2017) Supreme Law Minzai No. 172] held that the relationship between the company and the directors belongs to the appointment relationship. In the absence of contrary provisions in the law and the articles of association, the resignation of the directors of the company shall generally have legal effect when the resignation of the directors is delivered to the board of the company. Jin Enshu and Cai Mengjie submitted their resignation letters to Century Shengkang Company on October 31 and November 11, 2011 respectively. At that time, Zhao Bingxian was the legal representative of Century Shengkang Company and could represent Century Shengkang Company in accordance with the law. Because he recognized that he had received the two resignations, the resignations of Jin Enshu and Cai Mengjie had taken effect. Beijing Haidian District People's Court Fu Haiyang and Beijing North Aerospace China Times Technology Co., Ltd. requested to change the company registration dispute in the first instance [(2021) Beijing 0108 Minchu No. 58333] held that according to the provisions of the Company Law, if the directors are not re-elected in time at the expiration of their term of office, or if the members of the board of directors fall below the quorum due to their resignation during their term of office, the original directors shall still perform their duties before re-election. Even if Fu Haiyang resigns as a director, he should still perform his duties as a director before he is re-elected, not to mention that the shareholders' meeting has not made a resolution on the appointment of his directors. Regardless of whether Fu Haiyang leaves Tianhua, the dismissal of his manager position must also be decided by the board of directors. Fu Haiyang did not provide evidence to prove that the board of directors had made a decision to dismiss his manager position, so Fu Haiyang remained the manager of Tianhua Company. Fu Haiyang unilaterally requested Tianhua to remove the identity of its directors and managers without the resolution of the shareholders' meeting and the board of directors of Tianhua Company, and to remove the lack of factual and legal basis for the registration of its directors and managers. 3. Obstacles to enforcement after obtaining a successful judgment Even after the successful judgment, the withdrawal of the legal representative still has enforcement obstacles. Huang Qinhu of Renhua County People's Court of Guangdong Province, Jinsheng Industrial Co., Ltd. of Renhua County of Guangdong Province and other disputes related to the company for the first time [(2022) Yue 0224 Zhi No. 387] held that in the process of execution, because both the applicant and the person subject to execution said that they could not elect a new legal representative, the court sent a letter to Renhua County Market Supervision Administration Bureau to ask whether Huang Qinhu could clean up the legal representative of Jinsheng Industrial Co., Ltd. of Guangdong Renhua, renhua County Market Supervision Bureau replied that only in terms of its functions and current relevant laws and regulations, its system does not remove the operating specifications of the legal representative of the limited company. Due to the inability to clear the identity of Huang Qinhu's legal representative in Guangdong Renhua County Jinsheng Industrial Co., Ltd., the execution of this case cannot be carried out. In accordance with the provisions of item 6 of article 264 of the the People's Republic of China civil procedure law, the ruling is as follows: end the execution of case no 387 of Guangdong 0224 (2022). In summary, the withdrawal of the legal representative is a systemic problem, this article hangs a leak, briefly from the above six aspects of the discussion. In practice, we also need to make a specific analysis from at least three angles: the legal representative itself, creditors and minority shareholders. In the part of legal liability, in addition to civil liability, we also need to comprehensively sort out the relevant judicial liability, administrative liability, and even criminal liability, so as to solve the specific problems encountered in the work.
2023-03-29
12
2023-03
Introduction Penalty interest and compound interest are two professional terms with different meanings in the financial industry. They cannot be included in each other, let alone confused. As to whether financial institutions can claim compound interest on penalty interest, looking at the current relevant laws and regulations, there is no clear stipulation that "compound interest should be calculated for overdue penalty interest", but in judicial precedents, we find that in some cases, it can be supported by the court to claim compound interest for overdue penalty interest. Therefore, this paper will combine the relevant jurisprudence of the Supreme Court to sort out the decision on whether the overdue penalty interest can be calculated and compound interest, with a view to providing some ideas and guidance for the handling of similar situations in the future. The concept of 1. penalty interest and compound interest. The concept of (I) penalty interest. According to Article 25 of the "Regulations on the Administration of RMB Interest Rates" (Yinfa [1999] No. 77) issued by the People's Bank of China (hereinafter referred to as the "Regulations on the Administration of RMB Interest Rates"), overdue loans or misappropriation of loans shall be overdue or From the date of misappropriation, penalty interest shall be charged at the penalty interest rate until the principal and interest are paid off, and the penalty interest rate shall be adjusted in sections. Thus, the penalty interest is due to the borrower overdue repayment or misappropriation of the principal of the loan, by the lender to the borrower to collect punitive interest, penalty interest is mainly divided into the loan overdue penalty interest and loan misappropriation after the penalty interest two categories, this paper mainly discusses the type of penalty interest is overdue penalty interest. The calculation basis of the penalty interest comes from the agreement of the loan contract. With reference to Article 3 of the Notice of the People's Bank of China on Issues Related to RMB Loan Interest Rate (hereinafter referred to as the "Notice of Loan Interest Rate"), the penalty interest rate for overdue loans (loans that the borrower fails to repay on the date agreed in the contract) is changed from the current interest rate of 2.1 per 10,000 per day to an additional 30%-50% on the loan interest rate stated in the loan interest rate level; the penalty interest rate at which the borrower fails to use the loan for the purpose agreed in the contract has been changed from the current five-tenths-of-a-day interest rate to an additional 50-100 per cent on the level of the loan interest rate stated in the loan contract. For loans that are overdue or not used for the purpose agreed upon in the contract, interest shall be charged at the penalty interest rate from the date on which the loan is overdue or not used for the purpose agreed upon in the contract until the principal and interest are paid off. Interest that cannot be paid on time is compounded at the penalty rate. Concepts related to (II) compound interest According to Articles 20 and 21 of the "Regulations on the Administration of RMB Interest Rates", the compound interest involved in financial claims refers to "interest on interest". Specifically, the compound interest on loans refers to the interest generated by the unpaid interest on loans. It is a method of interest calculation. In addition to the interest generated by the principal, the interest generated by the principal is also calculated as interest, which is liquidated damages in nature. The basis for the calculation of compound interest is also derived from the agreement of the loan contract, and according to Article 3 of the Loan Interest Rate Notice: "For interest that cannot be paid on time, compound interest shall be charged at the penalty interest rate.", Thus, if it is during the term of the loan, compound interest is charged at the normal loan rate, and if it is after the expiration of the loan, compound interest is charged at the penalty rate. 2. Disputes over Whether Overdue Penalty Interest Can Be Compensated As mentioned earlier, compound interest is interest on the unpaid interest payable, so can compound interest still be charged for overdue penalty interest? One view is that compound interest is a punitive measure for the borrower's default interest and penalty interest, and its calculation base can include the default interest and penalty interest. However, another view is that the penalty interest already reflects the penalty for default interest, compound interest can only be calculated on the basis of interest, can not be added to the overdue penalty interest. (I) affirms that late penalties can be compounded. 1. [Case 1] (2020) Civil Judgment No. 374 of the Supreme Court The Supreme Court held that both the Liquidity Loan Contract and the Fixed Assets Loan Contract involved in the case stipulate that "the lender has the right to charge the overdue penalty interest according to the actual overdue days from the overdue date of the overdue date until the borrower pays off the principal of the loan due at maturity (the term" maturity "in this contract includes the situation where the lender announces the premature maturity of the loan)", "The interest (including normal interest, overdue penalty interest and misappropriation penalty interest) that the lender fails to pay on time shall, from the date of expiration, be compounded according to the actual number of days overdue at the overdue penalty interest rate agreed in this contract". The Regulations on the Administration of RMB Interest Rates and the Notice of the People's Bank of China on Issues Related to RMB Loan Interest Rates do not restrict banks and other financial institutions from calculating compound interest on penalties. The above agreements do not violate the mandatory provisions of laws and administrative regulations. It should be determined that Zhenghua Company and Shanghai Pudong Development Bank Guiyang Branch and Shanghai Pudong Development Bank Bijie Branch have reached an agreement on the liability for breach of contract when the loan is overdue, that is, a penalty interest is charged on the outstanding principal payable, and a compound interest is charged on the interest, including the penalty interest. 2. [Case 2] (2019) Supreme Court Civil Judgment No. 840 The Supreme Court held that the agreement in the Liquidity Loan Contract on the interest that cannot be paid on time and the penalty interest in accordance with the penalty interest rate standard to collect compound interest is the agreement of the parties and the agreement is the true intention of the parties and does not violate the law. At the same time, the debtor has not proved that the total amount of interest calculated according to the contractual method of calculating interest, penalty interest and compound interest exceeds the amount calculated according to the standard of 24% annual interest rate based on the principal amount owed, so there is no problem of excessive. Compound interest shall be calculated on the basis of unpaid interest payable and the aforementioned unpaid penalty interest payable from March 21, 2015 in accordance with the penalty interest rate standard agreed in Article 4 of the Liquidity Loan Contract until the date of full settlement of the principal and interest of this loan. (II) negative said: overdue penalty interest can not be calculated compound interest 1. [Case 1] (2019) Civil Judgment No. 1990 of the Supreme Court The Supreme Court believes that, in accordance with the relevant provisions of the People's Bank of China's Regulations on the Administration of RMB Interest Rates and the Notice on Issues Related to RMB Loan Interest Rates, the calculation base of compound interest should only be normal interest, that is, interest payable during the contract period, excluding overdue penalty interest. The Loan Contract does not explicitly agree on the calculation of compound interest on penalties and the quarterly settlement of penalties and compound interest outside the performance of the contract, so the Court does not support the above proposition. 2. [Case 2], (2020) Civil Judgment No. 145 of the Supreme Court The Supreme Court held that Article 4.4 of the "Trust Loan Contract" signed by the Foreign Economic and Trade Trust Company (Party A) and Hengfeng Silk and Satin Company (Party B) stipulates: "Party B fails to use the loan as agreed in the contract, and for the part that is not used as agreed in the contract, the interest shall be calculated at 100 on the basis of the original interest rate from the date of change of use. If Party B fails to repay the loan on time, the outstanding part of the loan shall be charged at 50% interest on the basis of the original interest rate from the date of overdue. Interest that is not paid on time is compounded at the aforementioned penalty rate. The original interest rate is the interest rate applicable before the maturity date of the loan (including the early maturity date). If the loan is both overdue and not used for the purpose agreed upon in the contract, interest is charged at the higher of the above provisions." As Hengfeng Silk Company failed to repay the loan and pay the interest on schedule, the Foreign Economic and Trade Trust Company requested to collect the penalty interest from July 3, 2017 (based on the principal of the loan in arrears of 90 million yuan, calculated at the annual interest rate of 11.325 to the date of payment) and compound interest from July 21, 2016 (based on the interest in arrears, calculated at the annual interest rate of 11.325 to the date of payment) according to the above-mentioned contract, it has been supported by the court of first instance, and its current claim that the penalty interest on the loan involved in the case should also be compounded. There is no clear contract basis. The first instance judgment is not supported and it is not improper, and the court maintains it. " 3. of Judges Meeting Opinion on Whether Late Penalty Interest Can Be Compound On both of these views, the judge's opinion in the minutes of the 20th judges' meeting of the Second Circuit Court of the Supreme People's Court in 2021 adopted the affirmative statement that penalty interest and compound interest are usually only applicable to financial lending. In financial lending, the interest during the loan period can be calculated as compound interest when there is no doubt that compound interest is calculated on the basis of the interest owed on the settlement date multiplied by the corresponding interest rate, so the calculation of compound interest is closely related to the settlement date. Penalty interest charged after the loan is overdue, because there is no interest settlement date problem, so in general there is no penalty interest calculation compound interest problem. Of course, if the loan contract has a clear agreement on the overdue interest settlement date and the collection of overdue penalty interest, there may also be the problem of penalty interest collection compound interest. In view of the fact that the current law does not prohibit the collection of compound interest on penalties, in accordance with the principle of autonomy, the parties should be allowed to make such transaction arrangements, but not exceed the statutory interest rate ceiling. Considering that a financial lending contract is usually a form contract drawn up in advance by one of the financial institutions, it is up to the financial institution to prove that it has fulfilled its obligation to prompt and explain the existence of a clause on whether the penalty interest should be and how to calculate compound interest. Advice from 4. lawyers Financial institutions need to make clear agreements on the terms of the loan contract, and cannot violate the mandatory provisions of relevant laws and administrative regulations. In particular, loan interest, late penalty interest, misappropriation penalty interest and compound interest in the loan contract need to be clearly stated to ensure that the terms can be clearly distinguished and clearly prompted. The agreement of the loan contract for the calculation of compound interest on penalties and interest cannot be claimed as the content of overdue interest, such as "interest that cannot be paid on time", "interest payable for unpaid interest" and other interest expressions with different understandings, otherwise it will bear the adverse consequences of being the provider of the format clause.
2023-03-12
10
2023-03
Civil and Commercial Perspective... The legal effect of the will.
Recently, the author received a number of consultations on the legal effect of the will. Some consultants lack the elements of the will, and some cannot obtain the estate according to the will for other reasons. So, how can the testator write a legal and valid will, so that their wishes can be realized? The author intends to combine a specific case to analyze. Brief of the case Zhang and Zhao got married in 1970. After their marriage, they had a very good relationship and gave birth to their second sons Zhang and Zhang. Zhao died of illness in 2000. Zhang was too sad. Later, his youngest son Zhang reassured him and suggested that he find another wife. Later Zhang registered for marriage with Luan, 20 years younger than himself, in early 2001 and gave birth to a daughter Zhang moujiao at the end of 2001. Because of his love for his little daughter and his current wife, Zhang handed over most of his property to his current wife, but he felt ashamed of his two sons. On October 21, 2021, he wrote a will and promised that his pre-marital property would be inherited by his two sons in a hundred years, and then handed the will to his younger son for safekeeping. Zhang died on December 23, 2022, but Zhang transferred the property to Luan before he died. Zhang Mouhua called for advice: Now that the house has been transferred to Luan, can the two brothers get the house according to their father's will? legal analysis 1, will is the will before life according to their own meaning of the property disposition of his death, the will is a unilateral, to-style, civil legal act. From the perspective of civil legal acts, a legal and valid will needs to meet the following conditions at the same time:(1) the actor has the corresponding civil capacity;(2) the meaning is true;(3) it does not violate the mandatory provisions of laws and administrative regulations. 2. A valid self-written will should meet the following elements: (1) The entire contents of the will are written by the testator, self-written will can neither be written by others, nor can be printed with a printer, can only be written by the testator himself with a pen to record its meaning. The whole content here refers to the whole writing of the will, including the main part of the will on how the estate is handled, as well as the will's signature and the year, month and day indicated, which must be written by the will. That is, all the fonts of the will are required to be written by the testator himself, which is the most important formal element of the self-written will. (2) A self-written will shall be signed by the testator. After the will is written, the testator must also write his name at the end of the will. (3) The self-written will shall be indicated by the testator by the year, month and day. It should be noted that this article requires the visionary to indicate "year, month, and day", not just the date. 3. The property involved in the will must be lawfully existing. the author's point of view 1. Inheritance is the property left over from the death of a citizen, and it is the object of the legal relationship of inheritance, that is, the subject of the right of inheritance. If the estate does not exist, the legal relationship of inheritance cannot be established. Only the property left undisposed at the time of the decedent's death is an estate, and the property that the decedent has disposed of before the inheritance begins is not an estate. Specifically in this case, because the estate no longer exists, it does not belong to the scope of the estate from a formal point of view. 2, but specific to the case, Zhang can call the property file to see if the property transfer is in line with the law? Transfer to Luan is a gift or sale? Zhang has the capacity for civil conduct? If Zhang has no capacity for civil conduct when disposing of the property, the disposition is invalid, Zhang can get the property according to the will. The author reminds 1, self-written will must require me to write. The so-called "self-writing" means writing by oneself, which must be written by oneself. The signature and date from the first part of the "will" to the place of deposit should be written by oneself. 2. The testator is not a person with limited civil capacity. In judicial practice, many elderly people suffer from Alzheimer's disease, stroke, brain atrophy and other diseases in their later years and are unable to live normally or even express their wishes normally. If it is shown that they are indeed persons with no capacity for civil conduct or persons with limited capacity for civil conduct, then The will made by him is invalid. 3. The property involved in the will must be real, is the property legally occupied by the will. 4. Guarantee that the will held is the last will. According to the third paragraph of Article 142 of the Civil Code, if there are several wills, the contents of which conflict, the last will shall prevail. 5, the true care of the testator, life filial piety, otherwise, the testator has the right to make a will or disposition of property. To sum up: in this case, although Zhang Mou Xin and Zhang Mou Hua hold Zhang Mou's will, but because Zhang Mou has already disposed of the property involved in the will, if the disposition is legal, Zhang Mou Xin and Zhang Mou Hua have no right to obtain the property according to the will. Legal basis Article 143 of the the People's Republic of China Civil Code: Civil legal acts that meet the following conditions are valid:(1) the actor has the corresponding capacity for civil conduct;(2) the meaning is true;(3) it does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs. Article 1143 of the the People's Republic of China Civil Code: A will made by a person without capacity for civil conduct or a person with limited capacity for civil conduct shall be null and void. A will must express the true meaning of the testator, and a will made by fraud or coercion is invalid. A forged will is invalid. If the will is tampered with, the tampered content is invalid. Article 1134 of the the People's Republic of China Civil Code: The self-written will is written and signed by the testator, indicating the year, month and month. 4. Article 28 of the Judicial Interpretation (I) of the Succession Code of the Civil Code of the Supreme People's Court: The testator must have full civil capacity when making a will. A will made by a person with no capacity for civil conduct or a person with limited capacity for civil conduct is invalid even if he or she later has full capacity for civil conduct. If a testator has full civil capacity at the time of making a will and later becomes a person without civil capacity or a person with limited civil capacity, the validity of the will shall not be affected.
2023-03-10
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
