Viewpoint... An analysis of the liability of shareholders for the company's debt.

1. Introduction The failure of shareholders to fulfill their capital contribution obligations refers to the behavior of the shareholders of the company who fail to fulfill their capital contribution obligations or fail to fully fulfill their capital contribution obligations in accordance with the articles of association of the company. Shareholders who have not fulfilled their capital contribution obligations violate the principle of capital enrichment of the company, which not only harms the interests of the company, but also infringes the interests of other shareholders and creditors of the company, thus affecting the normal development of the company's business. In judicial practice, the case of the company's creditors suing the shareholders who have not fulfilled the obligation of capital contribution to bear the supplementary liability occurs from time to time, especially after the enterprise capital is changed from the original paid-in system to the payment system, the shareholders' insufficient capital contribution, overdue capital contribution, false capital contribution, evasion of capital contribution and other acts have increased, which leads to more special legal problems. The third interpretation of the company law gives the creditors of the company the right to investigate the capital contribution liability of the shareholders who have not fulfilled their capital contribution obligations, rather than the right of subrogation. Article 13 clearly stipulates that the creditors of the company have the right to request the shareholders who have not fulfilled their capital contribution obligations to bear supplementary compensation liability for the part of the company's debts that cannot be paid within the scope of the company's liability property, it is an asset that creditors can expect, which gives creditors a legitimate right to make up their contributions. In the previous article, "The limitation of the company's surplus distribution right of shareholders who have not fulfilled their capital contribution obligations", the author briefly analyzes the limitation of the company's surplus distribution right of shareholders who have not fulfilled their capital contribution obligations, and this article will mainly discuss the liability of such shareholders for the company's debts. 2. relevant laws and regulations (I) Company Law Interpretation II Article 22 When a company is dissolved, any capital contribution that has not been paid by the shareholders shall be treated as liquidation property. The outstanding contributions of shareholders, including the outstanding contributions due and payable, as well as the contributions that have not yet expired in instalments in accordance with the provisions of Articles 26 and 80 of the Company Law. When the company's property is not sufficient to pay off the debts, the people's court shall support the creditor's claim that the shareholders who have not paid their capital contributions, as well as other shareholders or promoters at the time of the establishment of the company, shall bear joint and several liability for the debts of the company within the scope of the unpaid capital contributions. (II) Company Law Interpretation III The second paragraph of Article 13 stipulates that if the creditors of the company request the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations to bear supplementary compensation liability for the unpayable part of the company's debts within the scope of the principal and interest of the unfunded capital contribution, the people's court shall support it; if the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already assumed the above-mentioned responsibilities, the people's court shall not support the same request. The second paragraph of Article 14 stipulates that the shareholders of the company's creditors who request to withdraw capital contributions shall bear supplementary compensation liability for the unpayable part of the company's debts within the scope of the principal and interest of the withdrawn capital contributions, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contributions If the controller assumes joint and several liability for this, the people's court shall support the shareholder who has already assumed the above-mentioned responsibilities and other creditors make the same request. Article 18 stipulates that if a shareholder of a limited liability company fails to perform or fully performs the obligation of capital contribution, the transferee knows or should know that if the company requests the shareholder to perform the obligation of capital contribution and the transferee bears joint and several liability for it, the people's court shall support it; if the creditor of the company brings a lawsuit against the shareholder in accordance with the second paragraph of Article 13 of these provisions, At the same time, the people's court shall support. (III) enterprise bankruptcy law Article 35 stipulates that after the people's court accepts the bankruptcy application, if the debtor's contributor has not fully fulfilled its capital contribution obligations, the administrator shall require the contributor to pay the capital contribution paid, without being limited by the time limit of the capital contribution. (IV) Additional Provisions on Implementation of Changes Article 19 stipulates that the company as the person subject to execution has insufficient property to pay off the debts determined by the effective legal documents, and its shareholders transfer their equity if they fail to fulfill their capital contribution obligations in accordance with the law. The people's court shall support the application for the executor to change or add the original shareholder or the promoter who bears joint and several liability for the capital contribution in accordance with the provisions of the company law. Minutes of the Nine Minds in (V) Article 6 stipulates that under the registered capital subscription system, shareholders shall enjoy the benefits of the term in accordance with the law. The people's court shall not support the creditor's request that the shareholders of the outstanding capital contribution period bear supplementary liability for the debts that the company cannot pay off on the grounds that the company cannot pay off the debts due. However, the following circumstances are excluded:(1) in the case of the company as the executed person, the people's court has exhausted the enforcement measures and has no property to enforce, and has the reasons for bankruptcy, but does not apply for bankruptcy;(2) after the company's debts are incurred, the company's shareholders (General Assembly) will decide or otherwise extend the period of shareholders' capital contribution. (VI) company law (revised draft) for comments Article 48 stipulates that if a company is unable to pay off its debts as they fall due and is manifestly insolvent, the company or its creditors shall have the right to require shareholders who have paid their capital contributions but have not paid their capital contributions in advance. 3. Focus Analysis Should the shareholders of the (I) defective capital increase bear supplementary compensation liability for the debts before the capital increase of the company? The view that shareholders should bear supplementary liability for the claims formed after the capital increase is not controversial in judicial practice, but there are two views in practice as to whether shareholders should bear the debts before the capital increase of the company. The first view is that the company is only subject to supplementary liability for the debt after the capital increase, and the second view is that the time of the formation of the claim is not directly related to whether the shareholders should be liable. According to the Reply of the Executive Office of the Supreme People's Court on Whether Shareholders Should Be Responsible to the Company's Creditors for Defects in Capital Increase after the Establishment of the Company, shareholders with defective capital increase shall only bear corresponding responsibilities to the traders (creditors of the company) after the capital increase registration, and shall not be liable for the company's debts incurred in the transaction with the company before the capital increase. However, the Company Law Interpretation III, published thereafter, does not make special provisions on the timing of the defective capital increase, as the interpretation is of higher legal rank and is therefore preferred, I .e., the defective capital increase shareholders are liable for supplementary liability for the company's debts regardless of when they are formed. Can (II) creditors request shareholders who have not reached the end of the capital contribution period to fulfill their capital contribution obligations in advance? First of all, Article 35 of the Enterprise Bankruptcy Law clearly stipulates that in the case of bankruptcy, if the capital contribution of shareholders is accelerated to expire, and after the people's court accepts the bankruptcy application, the debtor's capital contribution has not fully fulfilled its capital contribution obligations, the administrator shall require the capital contribution to be paid by the capital contribution, without being limited by the time limit of the capital contribution. Secondly, in the case of dissolution, there is also a corresponding legal basis for the accelerated maturity of shareholders' capital contributions. Article 22 of Interpretation II of the Company Law clearly stipulates that when the company is dissolved, the outstanding capital contributions of shareholders shall be regarded as liquidation assets. As to whether the accelerated maturity system is applicable to the non-bankruptcy liquidation stage, there is no unified conclusion of judicial decisions because there are no clear laws and regulations or judicial interpretations. Among them, there are two main bases for holding a positive attitude: first, the period of shareholders' capital contribution is an agreement between the company and the shareholders, and cannot be opposed to a third party other than the two; second, Article 6 of the Jiumin Minutes has added two situations in which shareholders' capital contribution is accelerated under the subscription system, and its normative intention is to better protect the interests of creditors. The negative attitude is based on the fact that the Company Law does not clearly stipulate the accelerated maturity system of shareholders' contributions in the case of non-bankruptcy liquidation stage, and it is not appropriate to expand the interpretation of the provisions of the law on "unfulfilled or incomplete capital contributions"; moreover, individual liquidation in the case of bankruptcy or dissolution is not conducive to the fair liquidation of all creditors. Article 48 of the newly published Company Law (Revised Draft) for comments in December 2021 further clarifies the provisions of the Nine People's Minutes on the accelerated maturity of shareholders' contributions in non-bankruptcy situations, making it a legislative norm and directly clarifying that the judgment standard for accelerated maturity of shareholders' contributions in the non-bankruptcy stage is "the company cannot pay off its due debts and obviously lacks solvency", which is more conducive to the protection of the interests of creditors. Should the original shareholders be liable for the debts of the (III) if the shareholders transfer their shares without fulfilling their capital contribution obligations? According to Article 18 of the interpretation III of the company law, if the shareholders who fail to fulfill the obligation of capital contribution transfer their equity, if the original shareholders know or should know, they shall bear the obligation of capital contribution, because the paid in capital contribution can be inquired through the national enterprise credit information publicity system, etc., so according to the above provisions, the original shareholders and the transferee shall bear joint and several liability for this. At the same time, Article 19 of the Additional Provisions on Changes in Implementation also stipulates that at the stage of implementation, creditors may add that the original shareholders who have not fulfilled their capital contribution obligations in accordance with the law, that is, the transfer of equity, shall be the executed person. However, if the shareholder's capital contribution is not due at the time of equity transfer, can the creditor request the transferring shareholder to take responsibility for the company's debts? There are three views on this issue in the theoretical and judicial practice circles. The first point of view is that the creditor cannot claim rights against the transferring shareholder, because the transferring shareholder's capital contribution is flawless and the fact of the transfer has been registered and publicized; the second point of view is that the creditor can claim that the transferring shareholder shall bear joint and several liability. The "failure to perform or fully perform the obligation of capital contribution" stipulated in Article 18 of the Interpretation III of the Company Law includes "the period of unexpired capital contribution"; The third point of view, the original shareholders shall bear joint and several liability, otherwise, the original shareholders shall not bear joint and several liability. In judicial practice, there are also some cases that the Company Law Interpretation III was promulgated in 2011, when the capital contribution system had not yet been implemented, so Article 18 does not apply to the original shareholders who have not fulfilled their capital contribution obligations to transfer shares. Yang Linping, then president of the Second Civil Division of the Supreme People's Court, also proposed in the Supreme People's Court on Several Specific Issues in Current Commercial Trial Work that Article 18 of the Judicial Interpretation of the Company Law is to make up for the civil liability of capital contributions when false capital contributions are made. At present, there is no law or judicial interpretation to clearly stipulate who shall bear the responsibility for the transfer of equity when shareholders fail to pay their capital contributions because the capital contribution period has not expired. Because the unpaid contribution at this time is legal rather than illegal, the provisions of the above judicial interpretation cannot be applied of course. It can be seen that the Supreme Court's decision is more inclined to the first view, that is, the original shareholders in the case of the capital contribution period has not yet expired, that is, only the current shareholders of the outstanding capital contribution period to bear supplementary liability for the company's unliquidated debts. 4. related cases (I) Case 1:(2019) Chuan 01 Min Zhong No. 15335 Basic case: In 2007, Times Company sued Sichuan Construction Company for a dispute over a construction contract. The court finally ordered Sichuan Construction Company to pay 400000 yuan to Times Company. In 2015, Sichuan Construction Company held a shareholders' meeting and made a resolution to increase the company's registered capital from 10 million yuan to 20 million yuan. The increased registered capital of 10 million yuan was contributed by shareholder Gao Yuan in cash, and the subscription time was December 31, 2016. Before. In 2019, Plaintiff Times Company sued Defendant Highland Compensation Times Company for project payments, interest on funds for overdue payments, case acceptance fees and its litigation costs. The court of first instance (Chengdu Qingyang District People's Court) held that: Plateau is a shareholder of Sichuan Construction Company, its capital increase subscription time has expired, Plateau should fulfill the obligation of shareholder capital contribution. Although the debt involved in the case occurred before the plateau's capital increase, the plateau's failure to fulfill its capital contribution obligations violated the company's capital maintenance principle and posed a greater threat to the interests of the company's creditors. The current Sichuan Construction Company's assets are not enough to pay off the company's creditor's rights. The Times Company has the right to request the shareholder Plateau to bear the liability for compensation. Therefore, the Times Company has the right to claim the 200000 yuan for the project payment and the interest occupied by the overdue payment of the company. The court of second instance (Chengdu intermediate people's Court of Sichuan Province) held that the facts of the first instance judgment were clear, the applicable law was correct, and should be maintained. (II) Case 2:(2017) Zhejiang Min Shen No. 1111 The basic case: after the effective judgment, kangrun washing company owed the plaintiff Miao fugao 50400 yuan. after entering the execution termination procedure because kangrun washing company had no property to execute, miaofugao filed a lawsuit demanding ye mankang and other three shareholders to bear joint and several supplementary liability for the amount owed by kangrun washing company to the extent that the company did not make capital contribution. After examination, Congrun Washing Company was established on July 24, 2014. According to the articles of association of the company, the registered capital of the company is 500000 yuan, with Ye Mankang and Xu Fengyong each contributing 150000 yuan, Xie Baojin contributing 200000 yuan, and the three shareholders contributing before December 31, 2054. On August 18, 2014, Ye Mankang and Xu Fengyong transferred their shares to Xie Baojin, and then went through the industrial and commercial change registration procedures, but the revised articles of association did not change the time for shareholders to subscribe for capital contributions. The Court of Second Instance (Zhoushan Intermediate People's Court) held that: According to Article 26 of the the People's Republic of China Company Law as amended in 2013, the registered capital of a limited liability company is the amount of capital contribution paid by all shareholders registered with the company registration authority. The period of capital contribution subscribed by the shareholders of Congrun Washing Company is before December 31, 2054, before which the shareholders do not need to actually make capital contributions. As a creditor of the company, it has no right to require the shareholders of the company to assume the responsibility of performing the capital contribution. Only in the event of the dissolution of the company, bankruptcy and other statutory circumstances, the shareholders of the contribution of the obligation to accelerate the expiration of the company's creditors in accordance with the Supreme People's Court on the application.<中华人民共和国公司法>若干问题的规定（三）》第十三条第二款的规定，要求未履行或者未全面履行出资义务的股东在未出资本息范围内对公司债务不能清偿的部分承担补充赔偿责任。据此，判决驳回苗福高的诉讼请求。   再审法院（浙江省高级人民法院）认为：一、二审法院驳回苗福高的诉讼请求并无不当。   （三）案例三：（2021）京02民终17362号 基本案情：被告庄惟嘉系第三人亚太迈思公司的股东，经生效判决，亚太迈思公司应付东莞祥丰公司18.2万元货款，因亚太迈思公司未履行判决确定的义务，东莞祥丰公司向法院申请强制执行，执行过程中，东莞祥丰公司又提出执行异议，主张庄惟嘉作为亚太迈思公司的原股东未履行出资义务，申请追加庄惟嘉为案件的被执行人，在其认缴未实缴106万元的出资范围内承担清偿责任，庄惟嘉称其认缴出资期限为2044年，且于2018年开始与李茂盛洽谈股权转让事宜，在向李茂盛转让股权时，已向其告知亚太迈思公司的涉诉情况，亚太迈思公司在双方进行股权转让时除货物外没有其他资产，故庄惟嘉以8万元的价格将股权转让给了李茂盛，故不同意</中华人民共和国公司法>

2022-06-17

Professional perspective | Shareholders writing off a company without liquidation may not be jointly and severally liable for the company's debts

Brief case] A mechanical and electrical Co., Ltd. (hereinafter referred to as "mechanical and electrical company") was established in 2010 with a registered capital of 10 million yuan. Among them, shareholder Zhang holds 30% and shareholder Li holds 70%. In 2018, the mechanical and electrical company ceased operations after being sued for an external debt of 5 million yuan, and the court ruled that it was finally executed because it had no property to enforce. After the shareholders, shareholders Zhang and Li wrote off the mechanical and electrical company without liquidation. Later, the creditors demanded that the shareholders Zhang and Li be liable for compensation on the grounds that the shareholders were "idle in fulfilling their liquidation obligations. focus of controversy] If a limited liability company meets the conditions for liquidation, should the shareholders be liable for liquidation if they cancel the company without liquidation (neglecting to fulfill their liquidation obligations)? legal analysis] ▶Article 183 of the Company Law stipulates that "...... the liquidation group of a limited liability company shall be composed of shareholders, and the liquidation group of a joint stock limited company shall be composed of directors or persons determined by the general meeting of shareholders", and the Supreme People's Court's Rules on the Application<中华人民共和国公司法>Article 18 of the (II) on Certain Issues stipulates that "the shareholders of a limited liability company, the directors and the controlling shareholders of a joint stock limited company fail to set up a liquidation group to start liquidation within the statutory time limit, ...... the shareholders of a limited liability company, the directors and the controlling shareholders of a joint stock limited company fail to perform their obligations ......", and the liquidation obligor of a limited liability company is "shareholder", the liquidation obligors of a joint stock limited company are "directors and controlling shareholders". According to the Supreme People's Court's Application.<中华人民共和国公司法>Article 18 of the (II) on Certain Issues stipulates: "The shareholders of a limited liability company, the directors and the controlling shareholders of a joint stock limited company fail to establish a liquidation group within the statutory time limit to start liquidation, resulting in the devaluation, loss, damage or loss of the company's property. If the creditor claims that it is liable for compensation for the company's debts within the scope of the loss caused, the people's court shall support it in accordance with the law. If the shareholders of a limited liability company, the directors and controlling shareholders of a limited liability company fail to perform their obligations, resulting in the loss of the company's main property, account books, important documents, etc., and the liquidation cannot be carried out, and the creditors claim that they are jointly and severally liable for the company's debts, the people's court shall support it in accordance with the law." referee gist] (2021) Lu Min Zhong No. 1937 The shareholders of a limited liability company are negligent in fulfilling their liquidation obligations and are jointly and severally liable for the company's debts: (1) The shareholders are negligent in fulfilling their obligations; (2) The company's main property, books, important documents, etc. are lost and cannot be liquidated; (3) There is a causal relationship between the failure of shareholders to perform their obligations and the inability to liquidate the loss of the company's main property, books, important documents, etc. In this case, there is a causal relationship between the non-payment of the creditor's claim and the fact that the electromechanical company has no property to enforce. Even if the liquidation and cancellation procedures of the electromechanical company are flawed or even illegal, it cannot be concluded that there is a causal relationship between the non-payment of the creditor's claims involved and the failure of the shareholders of the electromechanical company to fulfill their liquidation obligations. Creditors should be well aware that even if the shareholders of the electromechanical company fulfill their liquidation obligations or they receive the liquidation notice of the electromechanical company and they declare their claims in accordance with the law, it will be difficult to be paid off. Therefore, in the absence of the element of causality, creditors claim that shareholders Zhang and Li should be liable for the debts owed by the mechanical and electrical company, without factual and legal basis. Lawyer Advice] When there is a reason for dissolution of a limited liability company, the shareholders fail to set up a liquidation group in time, resulting in devaluation, loss, damage or loss of the company's property, loss, damage or loss of the company's main property, account books, important documents, etc., and the liquidation cannot be carried out, the shareholders abuse the independent status of legal person and the limited liability of shareholders to seriously infringe the interests of creditors, creditors can pierce the legal person veil and require shareholders to bear joint liability for the company debts. However, if there is no causal relationship between the loss of the company's property or the company's inability to pay off its debts and the failure of the shareholders to set up a liquidation group in time and to fulfill their liquidation obligations, the shareholders may not be liable for compensation. Recommendations: A shareholder of a limited liability company shall, in order to avoid being claimed, do the following in the event of a dissolution of the company: 1. Establish a liquidation group in time; 2, to protect the company's property, to avoid the loss of company property; 3, after the establishment of the liquidation group to actively fulfill the liquidation obligations; 4, save the company's books, important documents; 5, shall not take advantage of the power to accept bribes or other illegal income, shall not embezzle the company's property; 6. If the company's property is found to be insufficient to pay off its debts, it shall apply to the court for bankruptcy in accordance with the law.</中华人民共和国公司法></中华人民共和国公司法>

2022-06-16

Administrative Litigation Vision (VI) | Administrative Litigation Evidence

Foreword Determined by the nature of administrative litigation, the ultimate fact that the evidence of administrative litigation is to prove is the legality of the accused administrative act. Under normal circumstances, the defendant bears the legal burden of proof to prove the legality of the accused administrative act. Throughout the proceedings, the defendant and his agent shall not collect evidence from the witnesses and the plaintiff on their own. The plaintiff may also request the people's court to collect evidence if it is difficult to collect evidence. 1 Types and Characteristics of Evidence in Administrative Litigation Administrative litigation evidence is all the facts that can prove the true situation of administrative cases. According to Article 33 of the the People's Republic of China Administrative Procedure Law (hereinafter referred to as the "Administrative Procedure Law"), administrative litigation evidence includes the following categories: (I) documentary evidence. It is an instrument recorded or expressed in words or symbols to prove the facts to be proved. (II) physical evidence. Refers to an article that uses the appearance, characteristics, quality, etc. of the article to explain part or all of the facts to be proved. (III) audiovisual materials. It refers to the factual materials related to the case recorded by means of audio or video recording. Audio tapes, videotapes and other items belong to the carrier, and the contents of their records belong to the audio-visual materials in the evidence. The audiovisual materials may be provided by the parties concerned, and the people's court may also, on its own initiative, request or copy them from the units or individuals concerned. (IV) witness testimony. Refers to the statement of the facts of the case made by the witness to the people's court orally or in writing. Except for those who are mentally or physically defective and cannot correctly express their will and the litigation agent of the case cannot be a witness in the case, any citizen and organization has the obligation to testify. Witnesses should generally appear in court in person to testify. If there are special circumstances that cannot appear in court, they may testify in the form of written testimony with the permission of the people's court. (V) the parties' statements. It refers to the statement of the facts of the case and the circumstances proving these facts submitted to the people's court by the person directly interested in the case. The statement of the parties is an important clue to find out the facts of the case, but the parties may adapt the objective facts for their own interests, so the people's court should conduct a comprehensive review in combination with other evidence in the case. (VI) identification conclusion. It refers to the technical conclusions made by appraisers with professional and technical expertise on special issues related to the case by using special instruments and equipment. Including medical identification, document identification, technical identification, accounting identification, chemical identification, physical identification, etc. (VII) inspection records and on-site records. The record of inspection refers to the records made by the staff of the administrative organ or the judicial personnel of the people's court for the investigation, inspection, measurement, drawing and photographing of the scene or articles related to the administrative case. On-site transcripts refer to the written records made by the staff of administrative agencies on the on-site conditions related to administrative cases and their handling in the course of administrative management. Evidence in administrative litigation should have three characteristics, namely, objective authenticity, relevance and legitimacy. Objective authenticity means that litigation evidence must be an objective fact that can prove the truth of the case and does not depend on subjective consciousness. Relevance means that the fact as evidence is not only an objective existence, but also has a logical connection with the facts to be found out in the case, so as to explain the facts of the case. Legitimacy means that the evidence must be provided by the parties in accordance with legal procedures, or by statutory authorities, statutory personnel in accordance with the statutory procedures for investigation, collection and review. Evidence that does not meet the above requirements cannot be used as the basis for the court to determine the facts to hear the case. Regardless of the form of the above seven kinds of evidence, the people's court examines its authenticity and legality, and at the same time examines the interrelation between the various kinds of evidence and the relationship with the facts to be proved. Burden of Proof in 2. Administrative Litigation The system of burden of proof is an important part of administrative litigation, and its specific meaning is that the parties who claim the existence of facts in litigation should bear the burden of proof, that is, "who claims, who gives evidence". In order to balance the unequal status of the parties in administrative litigation, the rule of the allocation of the burden of proof in administrative litigation in our country is that the defendant bears the burden of proof in principle, and in exceptional cases, the plaintiff bears the burden of proof, or the court investigates the evidence. (I) the defendant bear the burden of proof Article 34 of the Administrative Procedure Law stipulates: "The defendant shall bear the burden of proof for the administrative act he has committed, and shall provide the evidence for the administrative act and the normative documents on which it is based. If the defendant fails to provide or fails to provide evidence without justifiable reasons, it shall be deemed that there is no corresponding evidence." Therefore, the defendant, that is, the administrative organ, should bear the corresponding burden of proof to prove the legitimacy of its administrative act. "If the defendant fails to provide evidence or fails to provide evidence within the time limit without justifiable reasons, it is deemed that there is no corresponding evidence", which is mainly applicable to the profit and loss administrative act made by the administrative organ against the administrative counterpart, because according to the principle of obtaining evidence before ruling, the administrative organ must have collected sufficient and conclusive evidence when making a profit and loss administrative act, and the administrative organ fails to provide evidence or fails to provide evidence within the time limit without justifiable reasons in litigation, it is difficult for the people's court to support the administrative act. However, when the administrative action involves the legitimate rights and interests of the third party, the simple application of this rule is to transfer the adverse consequences to the third party. This shows that the evidence of administrative litigation should not only be provided by administrative organs, and all legal evidence that can prove the facts of the case can become the basis for the final decision of administrative litigation. In the course of litigation, subject to the rule of "obtaining evidence first, ruling later", the evidence provided by the defendant to prove the legality of the administrative act can only be limited to the evidence that he has already collected when he made the administrative act. If the accused administrative act is made in the absence of evidence or insufficient evidence, the administrative act has been illegal. (II) the plaintiff bear the burden of proof Although the defendant bears the burden of proof for the legality of the administrative act, this principle of distribution of proof does not mean that all the facts to be proved in the administrative litigation shall be proved by the defendant. The plaintiff shall prove whether the conditions for prosecution are met, whether the accused administrative act exists and is implemented, the facts that have been applied for when prosecuting inaction, and the damage suffered in the case of administrative compensation. 1. Eligible for prosecution. Article 4 of the "Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation" (hereinafter referred to as the "Provisions on Evidence") stipulates: "When citizens, legal persons or other organizations file a lawsuit in the people's court, they shall provide corresponding evidence materials that meet the conditions for the lawsuit." Whether the conditions for prosecution are met shall be provided by the citizen, legal person or other organization, that is, it is necessary to prove that it is the counterpart of the administrative act or a person who has an interest in the administrative act, otherwise the people's court will rule not to file the case or dismiss the prosecution after filing the case. 2. The existence and implementation of administrative acts. When the defendant has the burden of proof for the administrative act, he should provide the evidence and the normative documents on which the administrative act is based. It does not mean that the defendant needs to bear the burden of proof for all the facts of the accused administrative act. When the accused administrative act is an act, according to the above-mentioned legal provisions on the burden of proof, the defendant needs to prove that the administrative act he made has factual and legal basis and is a legal administrative act, as to whether the administrative act has been made and who is the subject of the administrative act, it should be proved by the plaintiff. Otherwise, it will make it difficult for the defendant who claims negative facts to fulfill the corresponding burden of proof in the trial of the case. In the case of (2016) Supreme Law Application No. 2907, the Supreme Court held that the plaintiff should obviously prove whether the alleged administrative act exists and whether the administrative act was carried out by the defendant. This is the factual basis for the plaintiff to accuse the administrative organ of having committed an administrative act that infringes its legitimate rights and interests, and also the substantive reason for the establishment of the litigation request, it is not to shift the burden of proof of the illegal administrative act to the plaintiff. 3. The fact that an application has been filed. When the accused administrative act is a failure to perform statutory duties or an omission as an administrative act, the plaintiff should generally prove that it has applied to the defendant, unless there are special provisions. The first paragraph of Article 38 of the Administrative Litigation Law stipulates: "In a case where the defendant is sued for failing to perform his statutory duties, the plaintiff shall provide evidence of his application to the defendant. However, one of the following circumstances is excluded; (I) the defendant should take the initiative to perform his statutory duties ex officio; (II) the plaintiff is unable to provide evidence for legitimate reasons." Therefore, the plaintiff's burden of proof for the performance of the application is not absolute. In the above two cases, even if the plaintiff fails to provide evidence, it will not bear the adverse consequences of the inability to provide evidence. 4. Administrative compensation and compensation cases. According to the second paragraph of Article 38 of the Administrative Litigation Law: "In a case of administrative compensation or compensation, the plaintiff shall provide evidence of the damage caused by the administrative act. If the plaintiff is unable to provide evidence due to the defendant's reasons, the defendant shall bear the burden of proof." The first paragraph of Article 47 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Administrative Procedure Law (hereinafter referred to as the "Application Interpretation") stipulates: "According to the provisions of the second paragraph of Article 38 of the Administrative Procedure Law, in administrative compensation In a case of compensation, if the plaintiff is unable to prove the damage due to the defendant's reasons, the defendant shall bear the burden of proof for the damage." Article 5 of the "Evidence Regulations" stipulates: "In administrative compensation litigation, the plaintiff shall provide evidence of the fact that the specific administrative act being sued has caused damage." According to the above-mentioned provisions, for the fact and amount of damage caused by administrative acts, in principle, follow the rule of proof of who claims who gives evidence, and the plaintiff gives evidence. However, this rule of proof is also not absolute and there are exceptions. In the case of (2016) Supreme Law Administration No. 791, the plaintiff was unable to prove the specific loss due to the defendant's reasons. The Supreme Court held that when Huashan District government organized the demolition of the applicant's house, it failed to register and preserve the articles in the house according to law, and failed to make a list of articles and submit it to the applicant for signature confirmation. As a result, the applicant could not prove the damage to the articles, so whether the loss existed and the specific loss, according to law, the respondent Huashan district government shall bear the burden of proof. In the case that the Huashan District government failed to provide sufficient evidence, the court of second instance, referring to the reasonable market price and in accordance with the principle of "high is not low", supported the applicant's reasonable claim for compensation for indoor goods, which has fully protected the applicant's rights. However, in the administrative compensation litigation, if the plaintiff is unable to provide evidence due to the defendant's reasons, the plaintiff is not automatically exempted from the burden of proof to prove the existence of the loss and the scope of the loss. In the case of (2017) Supreme Law Xing Shen No. 26, if the Supreme Court considers that the plaintiff's proof of the loss is obviously unreasonable, the people's court may determine the corresponding amount of compensation in accordance with the law in the light of the objective facts found after the trial. Although in principle, the defendant bears the burden of proof in administrative litigation, this does not mean that the plaintiff cannot prove the facts of his claim, but that the plaintiff does not bear the consequences of the inability to prove, nor does it of course exempt the defendant from the burden of proof. Article 37 of the Administrative Procedure Law stipulates: "The plaintiff may provide evidence to prove that the administrative act is illegal. If the evidence provided by the plaintiff is not tenable, the defendant shall not be relieved of the burden of proof." In addition, according to Article 46 of the applicable interpretation, if the plaintiff or a third party does have evidence to prove that the evidence held by the defendant is beneficial to the plaintiff or the third party, it may apply in writing to the people's court to order the administrative organ to submit it before the hearing. If the reasons for the application are established, the people's court shall order the administrative organ to submit it. If the administrative organ refuses to submit it without justifiable reasons, the people's court may presume that the facts claimed by the plaintiff or a third party based on the evidence are established. In such a case, even if the plaintiff or a third party does not prove the facts claimed by him, the court still presumes that the facts claimed by him are established and the defendant bears the adverse consequences. (III) people's court to conduct investigation and collect evidence Although the burden of proof and the consequences of the failure of proof shall be borne by the original defendant, under certain circumstances, the people's court may, ex officio, require the parties to provide evidence, collect evidence on their own, or obtain evidence on the application of the plaintiff or a third party. 1. Ex officio. In order to protect the legitimate rights and interests of the State, society and others, the people's court may require the parties to provide and supplement evidence. Article 39 of the Administrative Procedure Law stipulates: "The people's court has the right to require the parties to provide or supplement evidence." Article 37 of the applicable interpretation further explains: "according to the provisions of Article 39 of the administrative procedure law, the people's court may order the parties to provide or supplement relevant evidence if there is no dispute over the parties, but the facts involve the national interests, public interests or the legitimate rights and interests of others." At the same time, the court has the right to investigate and collect evidence on its own. Article 40 of the Administrative Litigation Law stipulates: "The people's court shall have the right to obtain evidence from the relevant administrative organs, other organizations and citizens. However, it shall not obtain, for the purpose of proving the legality of an administrative act, evidence that was not collected when the defendant took the administrative act." Article 22 of the "Evidence Regulations": "According to the second paragraph of Article 34 of the Administrative Litigation Law, the people's court has the right to obtain evidence from relevant administrative agencies, other organizations, and citizens under any of the following circumstances: (1) The determination of facts involving national interests, public interests, or the legitimate rights and interests of others; (II) involving procedural matters such as adding parties ex officio, suspending litigation, terminating litigation, and withdrawal." It can be seen that the court is also bound by the rule of "taking evidence first, ruling later" in the process of obtaining evidence. This provision is not only a requirement of doctorism, but also a requirement of the principle of neutrality. (2017) In the Supreme Law Application No. 2926 case, the Supreme Court held that the court could neither accept the evidence that the defendant did not collect when he made the administrative act, nor obtain the evidence that the defendant did not collect when he made the administrative act in order to prove the legality of the administrative act. 2. Upon request. Article 41 of the Administrative Litigation Law: "If the plaintiff or a third party cannot collect the following evidence related to this case on its own, it may apply to the people's court for access: (1) Evidence kept by state agencies and must be obtained by the people's court; (II) evidence involving state secrets, trade secrets, and personal privacy; (III) other evidence that cannot be collected by itself due to objective reasons." In civil proceedings, if the plaintiff and the defendant are unable to collect evidence on their own for objective reasons, they may apply to the court to obtain evidence. In administrative litigation, the defendant, as an administrative organ, has a higher ability to obtain evidence than the plaintiff and the third party, so the law stipulates that only the plaintiff and the third party have the right to apply to the court for investigation and evidence collection. 3. epilogue Compared with civil litigation, the rule of proof in administrative litigation has its particularity, based on the fact that the status of the plaintiff and the defendant is not equal, it is necessary to ensure the equality of the litigant's litigation status through the distribution of the burden of proof, so the traditional rule of proof of "who claims, who gives evidence" is not fully applicable to administrative litigation. In judicial practice, courts often allocate the burden of proof reasonably on the basis of legal provisions according to the ability of both parties to prove the case, combined with the facts of the case.

2022-06-10

Viewpoint... A preliminary exploration of civil liability for misrepresentation of private equity bonds that can be publicly traded.

摘要：近来，资本市场中可公开交易私募债券虚假陈述案件频频“爆雷”，相关法律法规却鲜有触及责任主体及责任承担比例等问题。虽然最高院于2022年1月出台了《最高人民法院关于审理证券市场虚假陈述侵权民事赔偿案件的若干规定》，但由于私募债券与公募债券或公开发行股票有着本质区别，对于证券种类或性质不同其法律适用应予以区分对待。本文尝试就可公开交易的私募债券涉及虚假陈述的民事责任主体及责任比例进行探讨，并建议尽快制定符合私募债券性质的相关法律法规或司法解释，以符合资本市场的发展。   关键词：可公开交易的私募债券、虚假陈述民事责任   Abstract：The subject and proportion of civil liability for misrepresentation cases of publicly traded private placement bonds in the capital market have rarely been touched upon by relevant laws and regulations. Although the Supreme Court issued several provisions of the Supreme People's Court on the trial of civil compensation cases for misrepresentation infringement in the securities market in January 2022, the definition of the types or nature of securities and their legal application should be treated differently, as private placement bonds are fundamentally different from public offering bonds or public offering stocks. This paper attempts to discuss the subject and size of civil liability for misrepresentation of privately offered bonds that can be publicly traded, and suggests that relevant legal and judicial interpretations in line with the nature of privately offered bonds be formulated as soon as possible to refine the provisions to comply with the development of the capital market.   Key words：publicly traded private placement bonds, civil liability for misrepresentation   一、引言   2022年1月12日起施行的《最高人民法院关于审理证券市场虚假陈述侵权民事赔偿案件的若干规定》（以下简称“若干规定”）虽然明确和细化了证券市场虚假陈述侵权民事赔偿责任的构成要件及追究机制等内容，但没有对公开发行的证券中的股票与债券、公募债券和私募债券等概念进行区分；虽然文义上将适用范围扩大到可公开交易的私募债券等领域，但没有根据私募债券的特点进行细化规定。   “私募”的概念包含于“非公开发行”的范畴之中，在“非公开发行”的定义上我国采取的是“并列规定模式”（或“反向推定模式”），即分别规定公开发行及非公开发行的定义，并在此基础上规定公开发行采取注册制、非公开发行采取备案制及证券发行、交易管理的其他制度，因此在我国关于证券的性质界定及其引发的问题应当是尤为重要的问题。本文将在辨析基础概念的基础上以我国私募债券虚假陈述民事责任法律制度的完善为目的，从梳理、分析立法目的和理论基础为出发点，分析可公开交易的私募债券虚假陈述民事责任制度的法律修订与完善。   二、可公开交易的私募债券概述   （一）可公开交易的私募债券定义   私募债券是指 “在中国境内以非公开方式发行和转让，约定在一定期限还本付息的债券” ， “非公开方式”是指向每期不超过两百人的合格投资者发行且不采用广告、公开劝诱和变相公开方式。实践当中存在“大公募”、“小公募”和“私募”的惯常用法 ，“大公募”和“小公募”均是公开发行，而“小公募”要求向合格投资者发行，“私募”更近一步是指向合格投资者非公开发行。   从法律关系的角度，私募债券不同于股权，持有私募债券代表投资人与发行人之间存在债权债务关系，且其披露文件的作用是供合格投资者判断发行人在经过将来的一段时间后是否还具有还本付息的能力，其风险在于发行人部分或完全丧失还本付息的能力而违约。   根据《公司债券发行与交易管理办法（2021年修订）》，参照2022年《上海证券交易所非公开发行公司债券挂牌交易转让规则（2022年修订）》，非公开发行的债券在已经合法发行之后符合规定完结程序可以在上交所挂牌转让。挂牌转让的交易双方在符合双方皆是合格投资者、转让发生后不会导致债券投资者超过200人、双方协商一致并向交易所申报等规则后即可进行交易，由于交易所有公共平台的性质，本文称之为可公开交易的私募债券。   （二）私募债券的合格投资者制度   合格投资者制度是私募法律制度的核心，我国证券法对投资者设定风险辨识和承担能力门槛并规定合格投资者应当自行承担债券的投资风险，主要借鉴美国的高收益债券的立法经验，其目的是平衡融资便利性和投资者保护，合格投资者在迈入私募债券这种有着更高收益债券的购买门槛的同时，应当承担起相较普通投资者更高的交易注意义务和风险承担能力。合格投资者制度引入，实现对我国证券市场投资者的分类管理，为私募债券等私募证券设置准入门槛，高门槛意味着高风险，高风险中蕴含着高收益，合格投资者应当秉持着善意投资的主观心理进行投资，并且为自己的选择负责。   虽然私募债券中合格投资者承担更高的注意义务与“买者自负”原则，但是这并不意味着虚假陈述民事责任人可以因此免责。   （三）可公开交易的私募证券的交易机制   2022年4月22日上海证券交易所和深圳交易所分别发布《上海证券交易所非公开发行公司债券挂牌规则（2022年修订）》和《深圳证券交易所非公开发行公司债券挂牌规则（2022年修订）》，同时2018年版即时废止。新规没有对挂牌债券的转让规则作出明确规定，参见新规的修订说明，新规完善债券转让机制，重点在于增加原则性规定，同时为后续完善相关规则留出空间。可见有关债券转让机制的详尽立法已经被立法者提上日程。虽然旧规已被废止，但尚没有具体的债券转让机制的规定，旧规仍可以反映可公开交易的私募债券的交易模式。旧规中规定债券转让以协商为主要方式进行，转让双方应当就转让的价格、数量等要素达成一致，应当向交易所提出申报。同时实践当中有关交易需在特定的“固定收益平台”上进行，交易需买卖双方事先确定交易价格、数量后在平台上输入只有他们掌握的特殊编码，才可成功申报。因此虽然可公开交易的私募债券在交易所进行挂牌，但区别于公开发行的债券面向不特定对象交易，其交易模式是典型的在公开交易市场的私下协商交易，双方平等协商的“一对一”交易模式。   （四）可公开交易的私募债券法律适用的困境   1、适用《证券法》的困境   《证券法》没有排除私募证券的法律适用，但是其中仅有第九条、第三十七条和第九十八条规定为有关非公开发行证券的规定，且均在规定中明确“非公开发行”。《证券法》关于信息披露义务的规定，均没有提及“非公开发行”，在第五章信息披露章节中也没有规定非公开发行的债券信息披露规则，则有理由认为《证券法》部分规定仅规范公开发行的债券，或只能在处理非公开发行的债券信息披露时作为参考。   2、适用《若干规定》的困境   2022年1月12日起施行的《若干规定》没有对公募和私募进行区分，规定“信息披露义务人在证券交易场所发行、交易证券过程中实施虚假陈述引发的侵权民事赔偿案件，适用本规定”，且没有进行例外规定。《若干规定》对比2003年《最高人民法院关于审理证券市场因虚假陈述引发的民事赔偿案件的若干规定》中明确规定仅适用于公募证券，文义上拓展了适用范围，扩大到了可公开交易的私募债券等领域。但是非公开发行证券是否应当适用《新虚假陈述若干规定》存在争议。   学者雷继平、王巍、兰朝晖，提出“在证券交易场所发行、交易”的判断标准，或可进一步界定为证券发行、交易“是否使用了证券交易场所的场地和设施”。私募债券在非公开发行阶段由发行人和承销商负责，发行完成后依据相关流程在交易所挂牌，没有使用证券交易场所的场地和设施，不属于“在证券交易场所发行、交易”，同时结合立法目的，认为私募债券不应适用《新虚假陈述若干规定》。   私募债券的可公开交易亦为“一对一”交易，实践当中存在债券发行前就已经约定好交易价格、交易对象和交易时间的“准内部交易”，债券发行和交易均没有使用证券交易所的场所和设施，私募债券对于该等交易的责任分担，应不适用《若干规定》，应在此后的司法解释或法律法规中予以明确。笔者认为，除了上述解释外，私募债券的发行和交易的方式可能存在发行前交易、内幕交易的可能性，故应区分情况以决定是否适用《若干规定》。   三、可公开交易的私募债券虚假陈述民事责任   （一）虚假陈述行为性质   证券市场是一个依赖信息汇集、分析和决策进行交易的场所，其高效健康的运行有赖于高质量的信息披露。在此过程中，投资者不需要支付或仅需支付微小对价即可以获取相关信息。中介机构等信息披露主体非基于同投资者之间的合意，而是基于法律法规、规范性文件规定以及同发行人、上市公司之间的契约关系而进行信息审核，因此投资者追究中介机构虚假信息披露民事责任难以通过以相对性为核心的合同责任。将证券虚假陈述民事责任定义为侵权责任是世界上的大趋势，我国立法和理论都将证券虚假陈述行为定义为侵权行为。证券虚假陈述表面上侵犯的是投资者的获取真实信息权，实质上是侵犯投资者的财产权。根据经济学的“有效市场”假设，在弱势有效市场和半强势有效市场，证券价格难以有效、及时、充分的体现未公开信息，某些未公开信息掌握者可以以信息差获取高额利润，而未掌握信息的投资者会因此受到财产损害。这种针对不确定对象故意或过失损害其绝对权，又依照法律规定承担民事责任的行为，符合侵权行为的定义。采取侵权责任说，可以不受合同相对性限制而追究非证券交易合同主体的责任，更有利于保护投资者并促进行业自律，推动证券市场良性发展。   （二）可公开交易的私募债券纠纷中因果关系探讨   有学者主张推定因果关系的理论基础是“市场欺诈理论”。“市场欺诈理论”巧妙的将投资者对市场定价的信赖与对虚假信息的信赖画等号，桥梁是经济学的“有效市场假设”。由于债券与股票不同，以及收益来源的差异和流通性差异，债券市场恐怕无法归类于强势或半强势有效市场，无法基于“有效市场假设”而成立推定信赖原则。但是除了“市场欺诈理论”还有其他理论可以帮助在私募债券市场成立推定信赖原则。私募债券高度类似合同交易，可公开交易的私募债券对比合同交易主要区别在于合格投资者制度和在公开平台上的信息披露要求。其在公开平台上的信息是经过多方保证真实性、准确性、完整性并在上交所等官方平台上披露的，其信息的可信度远远超出普通合同欺诈

2022-06-08

Viewpoint... How to protect the rights and interests of small shareholders of the shareholder representative litigation system.

Under the modern corporate system, investors tend to believe in capital majority decision, with the primary goal of having more control of the company. However, the problem that follows is that when the interests of controlling shareholders conflict with those of minority shareholders, the interests of minority shareholders are often vulnerable to infringement. This paper will focus on the protection of minority shareholders' rights and interests by means of shareholder representative litigation. The main forms of infringement of the interests of small shareholders in 1.. The fundamental reason for the infringement of the interests of minority shareholders is that the controlling shareholders can essentially control the operation of the company, but the company and shareholders are independent of each other at the legal level, and the property of the company is independent of the property of the shareholders. therefore, when the controlling shareholders make decisions involving the company, they do not proceed from the interests of the company, but encroach on the property of the company through a series of transactions that damage the interests of the company. This will lead to the loss of the company's property and endanger the interests of the company, other shareholders and creditors. If the company were to go bankrupt and liquidate as a result, although the controlling shareholder would have to share the losses with the minority shareholders, the controlling shareholder may have already benefited from the company by using its controlling position to far outweigh the loss of its capital contribution, and the interests of the minority shareholders would not be protected. In this regard, the shareholder representative litigation system directly gives minority shareholders the right to file lawsuits on behalf of the company under certain conditions, which is conducive to protecting the interests of the company and minority shareholders, and investigating the relevant responsibilities of controlling shareholders, directors and supervisors. 2. the subject qualification of shareholder representative litigation. The plaintiff in a (I) shareholder's representative action shall be a shareholder of the company, and the shareholder of a joint stock limited company shall also meet the limit on the period and number of shares held. According to Article 151 of the Company Law, the subject of the shareholder representative action is the shareholder. There are no restrictions on the shareholders of a limited liability company, but the shareholders of a limited liability company have restrictions on the period of holding shares and the number of shares held. The specific requirements are: the shareholders of a limited liability company hold more than 1% of the company's shares for more than 180 consecutive days in order to have the legal qualification to bring a lawsuit. (II) whether the damage to the company occurred before or after the plaintiff obtained shareholder status, it does not affect the right of the shareholder to bring a shareholder representative action. Article 24 of the Ninth Minute provides that "if a shareholder files a shareholder representative action and the defendant defends that the shareholder is not a qualified plaintiff on the grounds that the plaintiff has not yet become a shareholder of the company at the time of the act, the people's court shall not support it". (III) companies should be listed as third parties Since shareholder representative litigation is a dispute arising from the operation of the company, it is to safeguard the interests of the company and involves the entity rights and interests of the company. Therefore, Article 24 of the Judicial Interpretation IV of the Company Law stipulates that the company shall be listed as a third party in the shareholder representative action. Application of 3. shareholder representative litigation According to Article 151 of the Company Law, shareholder representative litigation applies to situations where others infringe on the interests of the company, including the following two types: (I) directors, supervisors and senior executives have caused losses to the company in violation of laws and regulations when performing their duties. This is the most typical situation of filing a shareholder representative lawsuit, directors, supervisors and executives are the actual management personnel of the company, and when they violate the duty of loyalty and diligence and cause losses to the company, they usually have no incentive to file a lawsuit against themselves in the name of the company, and allow the company's property to suffer losses. (II) another person to infringe upon the legitimate rights and interests of the company and cause losses to the company In addition to the previous typical application, the company law expands the scope of application of the shareholder representative litigation system, and any third party (including other shareholders) has room to apply the shareholder representative litigation system as long as it infringes on the legitimate rights and interests of the company. Common scenarios are as follows: 1. Abuse of control by controlling shareholders or actual controllers to infringe on the interests of the company 2. Defective contributions by shareholders 3. The non-performance of the debt of the company's debtor. 4. Misconduct by members of the liquidation team Pre-procedure for shareholder representative litigation in 4.. (I) statutory pre-procedure The main purpose of setting up the pre-procedure is to avoid excessive involvement of judicial factors, to ensure the internal autonomy of the company, and to prevent the abuse of shareholder litigation. According to Article 151 of the Company Law, shareholders are required to perform the legal pre-procedure to file a representative lawsuit, that is, a written request to the board of supervisors, the supervisor of a limited liability company without a board of supervisors, the board of directors, and the executive director of a limited liability company without a board of directors to file a lawsuit. A shareholder has the right to bring a shareholder representative action only if the aforementioned subject refuses to bring a lawsuit, or if the aforementioned subject fails to bring a lawsuit within 30 days from the date of receipt of the request. This requires that before filing a shareholder representative lawsuit, the shareholder must first exhaust the company's internal remedies, and if the plaintiff shareholder does not request the supervisory board, supervisor or board of directors or executive director to file a lawsuit in writing, and there is no sufficient evidence to prove that there is an exception to the pre-procedure in the case, the court will rule to dismiss the lawsuit. Exceptions (II) exemption from statutory pre-procedure 1. In case of emergency According to Article 151 of the Companies Act, shareholders have the right to file a lawsuit directly in case of emergency, I .e. no statutory pre-procedure is required. Examples of emergency situations are as follows: (1) The failure of shareholders to immediately file a lawsuit will result in the expiration of the statute of limitations; (2) The infringer transfers the company's property, and its act of harming the company's interests is continuing, and the company's interests will be irreparable if it does not file a lawsuit immediately. Thus, "urgency" requires urgency to stop the violation, I .e., a real and imminent danger, rather than a remote or speculative one. 2. There is no possibility of litigation by the relevant authorities of the company. Article 25 of the Nine People's Minutes stipulates that "the pre-procedure is aimed at the general situation of corporate governance, that is, when the shareholders submit a written application to the relevant organs of the company, there is a possibility of litigation by the relevant organs of the company. If the relevant facts identified show that there is no such possibility at all, the people's court shall not dismiss the prosecution on the ground that the plaintiff has not fulfilled the pre-procedure". Among them, the case where "there is no possibility of litigation by the relevant organs of the company" is as follows: (1) The company does not have a board of directors, a supervisory board, or a person who has already left the company without serving; (2) The directors or supervisors of the company are under the control of the controlling shareholder who committed the infringement and it is impossible for the directors or supervisors to sue the controlling shareholder; (3) The directors and supervisors themselves have an interest in the act involving damage to the interests of the company, or the directors and supervisors are the defendants in the case. Therefore, "there is no possibility of litigation by the relevant organs of the company", which requires that there is no possibility of performing the pre-procedure objectively. Attribution of interests in 5. litigation Article 25 of the Judicial Interpretation IV of the Company Law stipulates that "in a case where a shareholder directly brings a lawsuit in accordance with the provisions of paragraphs 2 and 3 of Article 151 of the Company Law, the winning interest belongs to the company. If the shareholder requests the defendant to bear civil liability directly to him, the people's court shall not support it". Since in a shareholder representative action, the shareholder is suing to defend the interests of the company, the interest in the shareholder representative action is vested in the company. 6. Summary In general, China's shareholder representative litigation system provides less, but the future application scenario is more extensive, the current should encourage minority shareholders to sue. Before filing a lawsuit, the minority shareholders should self-examine whether the subject is qualified, whether it has fulfilled the pre-procedure, whether it meets the pre-procedure exemption and other preconditions for prosecution, in order to fully protect their rights and interests.

2022-06-08

In the case of the case, if the guarantor is not required to assume the responsibility of the guarantee during the guarantee period, the guarantee liability is exempted.

Recently, a private lending dispute case handled by the author received a second-instance judgment made by the Jinan Intermediate People's Court (hereinafter referred to as the "Jinan Intermediate Court"). The court of first instance in the case ruled that the guarantor of the debt involved in the case was jointly and severally liable for the debt involved in the case. The author filed an appeal on behalf of the guarantor, and the Economic South Intermediate Court heard the trial. The final judgment revoked the first instance judgment, and the guarantor was not required to bear joint and several liability for the debts involved in the case, effectively safeguarding the legitimate rights and interests of the guarantor. Brief of the case On August 20, 2000, a company signed a Repayment (Repayment Guarantee) Agreement with Zheng and Zhang, agreeing that Zheng would lend a loan of 244000 yuan to a company with an annual interest rate of 13% until August 1, 2000. Zhang, as the vice president of the company, signed the agreement as the guarantor of repayment, and promised to "provide unconditional full repayment guarantee for the loan with his family property". At the bottom of the agreement, write "this agreement as an attachment to the original loan contract (No.998060). all parties agree that party B (a company) can repay it in monthly installments at a rate of 10% per month until June 2001", with Zhang's signature attached, but the words "monthly installments at a rate of 10% per month" and "June 2001" have been altered. In August 2021, Zheng filed a lawsuit with a district court in Jinan City, demanding that a company repay the principal and interest, and Zhang bear joint and several liability. Zhang did not appear in court to participate in the proceedings. A district court held that a company should bear the responsibility for repayment in accordance with the contract, and Zhang, as the vice president of the company, promised to provide unconditional full repayment guarantee for the loan with his family property, and should bear joint and several liability with the borrower, and accordingly ruled that Zhang should bear joint and several liability for the debts involved in the case. Zhang refused to accept the judgment of the first instance and entrusted the author to appeal. Grounds of Appeal 1. There are a large number of traces of alteration in the key evidence provided by Zheng in the first instance, and the alteration shall not be used as the basis for the final decision without Zhang's consent; 2, Zhang in this case is joint and several guarantee liability, the agreement did not agree on the guarantee period, and Zheng did not require Zhang to assume the guarantee responsibility within the statutory six-month guarantee period, Zhang's guarantee responsibility has long been exempted; 3, even if the court found that Zhang should bear the responsibility of guarantee, the statute of limitations of the main debt in this case has expired, as a guarantor of Zhang in accordance with the law to enjoy the main debtor's statute of limitations defense, no need to bear the responsibility of guarantee. The focus of the second trial dispute Whether Zhang is jointly and severally liable for the debts involved, I .e. whether Zhang's guarantee has exceeded the guarantee period. case analysis 1. On the issue of altered evidence The handwritten part at the bottom of the agreement, "divided into months at a rate of 10% per month" and "June 2001", was altered without Zhang's consent, and the above altered content is obviously beneficial to Zheng, so it has no legal effect on the above altered. Zhang, as the vice president and guarantor of the company, is deemed to have changed the repayment period of the debt involved in the case, that is, the performance period of the principal debt involved in the case should be "June 2001". 2. The question of whether the guarantee liability has passed the guarantee period. In this case, Zhang assumed joint and several guarantee liability, but the agreement involved in the case did not stipulate the guarantee period. Therefore, the guarantee period for Zhang to bear joint and several liability in this case should be six months after the expiration of the main debt performance period stipulated by law. In this case, Zheng did not provide evidence to prove that he required Zhang to bear the guarantee responsibility within six months from July 1, 2001, and should bear the adverse consequences. Therefore, Zhang's guarantee responsibility has been due to Zheng's failure to make a claim within the guarantee period. Exempt. Referee result After trial, the Jinan Intermediate People's Court revoked the original judgment of first instance that Zhang should bear joint and several liability for repayment, and changed the judgment to reject Zheng's claim against Zhang. Article Link Article 77 of the the People's Republic of China Contract Law "The contract may be changed if the parties agree through consultation. Where laws or administrative regulations stipulate that the modification of a contract shall be subject to approval, registration and other procedures, such provisions shall be followed." Article 78 of the the People's Republic of China Contract Law "If the parties are not clear about the content of the contract change, it is presumed that it has not been changed." Article 24 of the the People's Republic of China Guarantee Law "Where the creditor and the debtor agree to change the main contract, they shall obtain the written consent of the guarantor, and without the written consent of the guarantor, the guarantor shall no longer bear the guarantee liability. If it is otherwise agreed in the guarantee contract, it shall be in accordance with the agreement." Article 26 of the the People's Republic of China Guarantee Law "If the guarantor of joint and several liability guarantee and the creditor have not agreed on the guarantee period, the creditor shall have the right to require the guarantor to assume the guarantee liability within six months from the date of expiration of the period of performance of the independent debt. If the creditor fails to require the guarantor to assume the guarantee liability during the guarantee period agreed in the contract and the guarantee period specified in the preceding paragraph, the guarantor shall be relieved from the guarantee liability." Lawyer Reminder 1, for creditors, in order to avoid the guarantor out of the insurance, it is necessary to claim the guarantee liability to the guarantor or re-sign the guarantee contract within the guarantee period. 2. For the guarantor, the first is the defense that the guarantee period has passed the guarantee liability has been exempted, and the second is to exercise the defense rights of the principal debtor according to law, including the statute of limitations. 3. After the implementation of the Civil Code, the contents of the main creditor's rights and debts contract shall be changed without the consent of the guarantor, and if the debt is reduced, the guarantor shall still bear the guarantee liability for the changed debt, and if the debt is aggravated, the guarantor shall not bear the guarantee liability for the aggravated part. (Author: Zhang Wenhong)

2022-06-08

HR Legal Corner: Is the labor dispatch unit obliged to sign an indefinite labor contract?

Whether the labor dispatch unit should sign an indefinite labor contract with the dispatched workers is a problem often encountered in practice, and this paper will make a brief analysis of the above problems according to the relevant legal provisions and the judicial precedents of Jinan Intermediate People's Court and Shandong Higher People's Court. 1. relevant legal provisions 1. What is an open-ended labor contract? The first paragraph of Article 14 of the "Labor Contract Law" stipulates: "An open-ended labor contract refers to a labor contract in which the employer and the laborer agree that there is no definite termination time." 2. Under what circumstances should an open-ended labor contract be concluded? The second paragraph of Article 14 of the "Labor Contract Law" stipulates: "The employer and the laborer may conclude an indefinite labor contract through consultation. Under any of the following circumstances, if the laborer proposes or agrees to renew or conclude a labor contract, in addition to the laborer's proposal to conclude a fixed-term labor contract, an indefinite labor contract shall be concluded: The (I) worker has worked in the employing unit for ten consecutive years; When an (II) employing unit implements the labor contract system for the first time or when a state-owned enterprise is restructured to re-conclude a labor contract, the employee has worked in the employing unit for ten consecutive years and is less than ten years away from the legal retirement age; The (III) concludes two fixed-term labor contracts in succession, and the laborer does not have the circumstances specified in Article 39 and Article 40, Items 1 and 2 of this Law, and the labor contract is renewed. If the employer fails to conclude a written labor contract with the worker for one year from the date of employment, it shall be deemed that the employer and the worker have concluded an open-ended labor contract." 3. Relevant provisions of labor contract in labor dispatch mode The second paragraph of Article 58 of the "Labor Contract Law" stipulates: "The labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for more than two years, and pay labor remuneration on a monthly basis; the dispatched worker is not working, The labor dispatch unit shall pay it monthly remuneration in accordance with the minimum wage standard set by the local people's government." Focus question: If the dispatched worker meets the conditions of the second paragraph of Article 14 of the Labor Contract Law, should the labor dispatching unit sign an indefinite labor contract with the dispatched worker in accordance with the provisions of Article 14 of the Labor Contract Law? Or should it sign a fixed-term labor contract with the dispatched worker for more than two years in accordance with the provisions of Article 58 of the Labor Contract Law? 2. Court Views 1. Shandong Higher People's Court (2021) Lu Minshen No. 10597 Sun Aiying and Jinan Kaiderong Human Resources Co., Ltd. Labor Dispute Civil Application Retrial Review Civil Ruling Court view: In this case, the respondent signed a labor dispatch agreement with the outsider to send Sun Aiying to work in the outsider's office. The second paragraph of Article 58 of the "the People's Republic of China Labor Contract Law" stipulates that the labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for more than two years and pay labor remuneration on a monthly basis. According to the above provisions, there is no problem of signing an open-term labor contract between the labor dispatch unit and the laborer. Therefore, the applicant claims that the respondent should pay twice the salary of the non-fixed-term labor contract. There is no legal basis. 2. Jinan Intermediate People's Court (2020) Lu 01 Min Zhong No. 11484 Jinan Laiwu Human Resources Development Service Co., Ltd. and Zhang Jiulong and other labor disputes Second Instance (2020) Lu 01 Min Zhong 11484 Judgment Court view: The labor contract signed by Zhang Jiulong and Laiwu Human Resources Company on December 10, 2010 expired on December 9, 2014, and the two parties signed the second labor contract on April 26, 2015. It was more than four months after the expiration of the first contract, and Zhang Jiulong received economic compensation of 20131 yuan. According to this fact, it cannot be concluded that Zhang Jiulong and Laiwu Human Resources Company have entered into fixed-term labor contracts twice in a row. The first instance found that the two parties signed a labor contract with improper continuity. The second paragraph of Article 58 of the the People's Republic of China Labor contract Law stipulates that the labor dispatch unit shall conclude a fixed-term labor contract with the dispatched worker for more than two years and pay monthly labor remuneration; during the period when the dispatched worker is not working, the labor dispatch unit shall pay monthly remuneration in accordance with the minimum wage standard set by the local people's government. According to this regulation, there is no problem of signing an open-ended labor contract between the labor dispatch unit and the laborer. At the same time, Zhang Jiulong's litigation request is to "continue to perform the labor contract", and the first instance regards it as a proposal to conclude an open-ended labor contract. The requirement of the contract, and based on this, it was ruled that it was improper for both parties to "perform the signing of an open-ended labor contract" and should be corrected. 3. Summary The second paragraph of Article 58 of the Labor contract Law is a special provision on the conclusion of labor contracts by labor dispatch units. Labor dispatch units only need to sign "fixed-term labor contracts of more than two years" with dispatched workers in accordance with this provision, and there is no problem of signing open-term labor contracts.

2022-06-07

Zhongcheng Qingtai. Real estate perspective: construction field identification start-up conditions and identification scope analysis.

1. issues raised Identification is an activity in which the appraiser uses specialized knowledge and skills, supplemented by necessary technical means, to detect, analyze and identify the specialized issues in dispute in the case. In the case disputes in the field of construction, due to the strong professionalism and technicality of the determination of engineering quantity, the calculation of project price, and the acceptance of project quality, when both parties have disputes over the facts of a certain case, they are often accustomed to applying to the people's court. Entrusted appraisal, through the third-party appraisal agency to issue an appraisal opinion to judge the disputed facts. Whether it is necessary to start the appraisal, how to determine the scope of the appraisal and how the court adopts the appraisal opinion is very important to the outcome of the case, and this paper intends to analyze the above problems through five cases. 2. Related Cases and Referee Views The (I) does not need to initiate an appraisal if it is possible to bring the facts to be proved to the standard of proof of "high probability" through other evidentiary materials. Case 1: Dispute over Construction Contract between Ningxia Huaji Biology Co., Ltd. and Zhongwei Roche Decorative Materials Firm and Ningxia Chengzhi Wansheng Biological Engineering Co., Ltd. (Wuzhong Intermediate People's Court of Ningxia Hui Autonomous Region [2020] Ning 03 Min Zhong No. 1007) The court held that the "Wansheng Office Building Reconstruction Project Construction Agreement" and the "Wu Zhong Wansheng Office Building Reconstruction Project List and Quotation" were signed by both parties after the completion of the project on September 23, 2019. As mentioned above, Zhang Wei, on behalf of Chengzhi Wansheng Company, approved the contract price of 278000 yuan, and Huaji Company paid 150000 yuan to the appellee Roche Firm after the agreement was signed, it is fully proved that the project funds involved in the case have been agreed by both parties through negotiation, so there is no need to start the appraisal to confirm the quantities of the appellee's construction, and it is not improper that the appraisal is not allowed in the first instance. As for the application for project cost appraisal submitted again by the appellant in court of the second instance, the court also did not approve the application for appraisal because the agreement and quotation list signed and approved by both parties have reached a fairly high standard of proof for the facts, and the appellant did not submit valid evidence in the second instance to reduce the probative force of the agreement, so the court also did not approve the application for appraisal. (II) the parties agree to settle the project price in accordance with the fixed total price, the people's court shall not support the request of a party to identify the cost of the construction project. Case 2: Qingdao Zhongxing-Shenyang Commercial Building (Group) Co., Ltd. and Shenyang Huiding Runda Technology Co., Ltd. Dispute over Construction Contract (Shenyang Intermediate People's Court of Liaoning Province [2022] Liao 01 Min Zhong No. 2471) The court held that, according to the 12.1 agreement of the contract, the contract was determined by means of a fixed total price, and the total price was not adjusted, except for the increase or decrease of the "project phase item" in the "partial project quantity list", and no adjustment was made to the transaction price under any other circumstances. As for the appellant's claim that there are multiple equipment available for use and the application for appraisal to finally determine the project price, the court believes that the available use is not directly related to the increase or decrease of the project and does not belong to the project involving "increasing or decreasing the project items other than the project items in the partial bill of quantities". it is not improper for the court of first instance to make adjustments according to the fixed total price agreed in the contract, and the court will not accept the appellant's claim. If the parties to the (III) dispute some of the facts of the case, only the disputed facts shall be appraised. Case 3: Ren Fenghua, Baye Construction Group Co., Ltd. and Guangxi Jinchuan Nonferrous Metals Co., Ltd. and Qinghai Branch of Baye Construction Group Installation and Construction Company (Guangxi Zhuang Autonomous Region Fangchenggang City Intermediate People's Court [2021] Gui 06 Min Zhong No. 533) The court held that the amount and cost of the completed project of Ren Fenghua belong to the basic legal facts of the case and should be found out. In this case, because Ren Fenghua and Baye Company had disputes over the quantities of some of the sub-projects involved and failed to reach an agreement, the quantities and cost of the disputed parts of the project should be determined through judicial appraisal. Eight Metallurgical Company appealed that the project involved in the case did not need to determine the project price through cost appraisal, and the court did not support it. (IV) the party with the burden of proof did not apply for appraisal in the first instance litigation, the court applied for appraisal in the second instance litigation. If the court deems it necessary, it shall send it back for retrial and initiate the appraisal. Case 4: Disputes over Construction Contracts of Construction Projects such as China Communications First Public Bureau Group Co., Ltd. and Fujian Boye Construction Group Co., Ltd. (Fujian Longyan Intermediate People's Court [2019] Min 08 Min Zhong No. 1249) The court held that the court should allow the parties to determine the project price through appraisal in the course of litigation, so as to safeguard the legitimate rights and interests of the actual construction. Huang Guosheng submitted appraisal applications after the expiration of the time limit for proof in the first instance and during the second instance of the court. According to Article 14 of the (II) of the Supreme People's Court on the Interpretation of Legal Issues Applicable to the Trial of Construction Contract Disputes, "the party with the burden of proof in the first instance litigation did not apply for appraisal, but did not pay the appraisal fee or refused to provide relevant materials, and applied for appraisal in the second instance litigation, if the people's court deems it really necessary, it shall deal with it in accordance with the provisions of paragraph 1, paragraph 3, of Article 170 of the Civil procedure Law." The case shall be sent back to the court of first instance for retrial and the appraisal procedure shall be initiated. On the basis of the facts of the case, the (V) judge should use the judicial power to review the appraisal opinions, so as to avoid the situation of "trial by reference" Case 5: Civil Ruling of Second Instance on Disputes over Construction Contracts of China Chemical Engineering Ninth Construction Co., Ltd. and Xinjiang Meihuite Petrochemical Products Co., Ltd. (Xinjiang Uygur Autonomous Region Higher People's Court [2021] Xinmin Final No. 340) The court held that the court of first instance did not examine and determine the inferential opinions in the appraisal opinion. In this case, 17 items of inferential opinions with an amount of about 19.7 million yuan are listed separately in the appraisal opinion. The court of first instance only reviewed and confirmed one item and partially accepted the appraisal opinion. For the remaining 16 items, Meihui Company did not submit valid evidence to prove that its objection was established, and all the appraisal opinions were accepted without review and confirmation. The essence of the appraisal opinion is evidence. In addition to reviewing its legality, the people's court should also make full use of the parties' objections and the response of the appraisal agency to review the scientificity, objectivity and rationality of the appraisal opinion, combined with other evidence in the case and the parties' The plea and defense opinions make an accurate determination of relevant specialized issues close to objective facts, so as to avoid using appraisal instead of trial. To sum up, the court of first instance found that the basic facts of the case were unclear. 3. Summary 1, through the above cases, the referee's point of view can be seen, not all controversial matters in the field of construction need to be identified. In view of the long time and high cost of the appraisal of construction projects, unless the facts of the case cannot be ascertained without appraisal and the facts have an impact on the outcome of the case, the appraisal should be used with caution. Article 28 of the "Judicial Interpretation of Construction Projects" "If the parties agree to settle the project price at a fixed price, and one party requests to appraise the construction project cost, the people's court will not support it" and Article 31 "If the parties have disputes over some of the facts of the case, only the disputed facts are appraised, but the scope of the disputed facts cannot be determined, or the parties request to appraise all the facts" is a manifestation of prudent initiation of appraisal. At the same time, it should be noted that "only the identification of disputed facts" is an advocacy provision, which aims to shorten the litigation time and reduce the litigation cost. The proviso of this article reflects the full respect for the opinions of the parties. 2. The "fixed price" stipulated in Article 28 of the Judicial Interpretation of Construction Projects refers to the fixed total price contract signed by both parties and the design changes other than those agreed upon by both parties have not occurred in the performance of the contract. Otherwise, in the case that the existing evidence cannot determine the cost of the change part, the appraisal still needs to be started. In addition, if the parties sign a fixed unit price contract, it is not affected by the above clause, because the fixed unit price only determines the price per unit area, it is necessary to multiply the unit price by the amount of work after determining the amount of work. If the two parties have different opinions on the quantity of work and cannot be determined by the existing evidence, identification is still required. 3. If the party with the burden of proof fails to apply for appraisal in the first instance litigation, and if the court applies for appraisal in the second instance litigation, the court considers it necessary to initiate the appraisal. The "really necessary" here should include two levels: one is that it is necessary to start the appraisal to find out the facts of the case; the other is that it is necessary to start the appraisal for a fair and just trial of the case. 4. Although the appraisal opinion plays an important role in identifying specialized issues in dispute cases, it is only one of the forms of legal evidence. Whether the judge finally accepts the appraisal opinion and uses it as the basis for determining the facts of the case still needs to be fully cross-examined by the parties and comprehensively analyzed and judged in combination with the basic facts of the case and other evidence, so as to effectively avoid the situation of "trial by reference.

2022-06-03

J & T Capital Watch... Foreign natural person shareholders to explore the issue of dividend tax.

At present, with the increasingly strict requirements of IPO audit, the issue of tax payment has been paid more and more attention. In practice, there are situations where the issuer's shareholders are foreign natural persons or where the actual controller is a foreign natural person after penetration verification. This paper intends to start from the issue of paying dividends to foreign natural person shareholders, with a view to discussing with you. 1. related regulations According to the Notice of the Ministry of Finance and the State Administration of Taxation on Certain Policy Issues Concerning Individual Income Tax jointly issued by the Ministry of Finance and the State Administration of Taxation in 1994 (Cai Shui Zi [1994] No. 20): "... 2. the following income shall be temporarily exempted from individual income tax: (viii) Income from dividends and bonuses received by foreign individuals from foreign-invested enterprises." And according to the "Announcement of the Ministry of Finance and the State Administration of Taxation on the Continued Effective Individual Income Tax Preferential Policy Catalogue" (No. 177 of 2018) jointly issued by the Ministry of Finance and the State Administration of Taxation in 2018: "The catalogue of documents involved in the continued effective individual income tax preferential policy includes:... Notice of the Ministry of Finance and the State Administration of Taxation on Certain Policy Issues Concerning Individual Income Tax" (Caishuizi [1994] No. 20)... ". However, in 2013, the State Council issued the "Notice of the State Council on Approving and Transforming the Opinions of the Development and Reform Commission and Other Departments on Deepening the Reform of the Income Distribution System" (Guo Fa [2013] No. 6), which stated: "14. Strengthen the adjustment of personal income tax. Accelerate the establishment of a comprehensive and classified personal income tax system. We will improve the collection, management and punishment measures of personal income tax for high-income earners, bring all kinds of income into the scope of collection, establish and improve the two-way declaration system of personal income and the national unified taxpayer identification number system, and collect all receivables in accordance with the law. Abolish tax incentives such as exemption from personal income tax on dividends and bonus income received by foreign individuals from foreign-invested enterprises." However, since the State Administration of Taxation has not officially issued a document to cancel this tax preference, from the practical point of view of tax collection and management, different regions have different ways of interpreting and implementing the policy. For example, the tax authorities in Shanghai, Fujian, Hubei and other regions, in accordance with the State Council [2013] No. 6, cancel the foreign individuals from foreign-invested enterprises to obtain dividends, dividends income exemption from personal income tax and other tax incentives. However, the tax authorities in Guangdong, Ningbo and Anhui believe that Caishuizi [1994] No. 20 is still valid, and the dividends and bonus income obtained by foreign individuals from foreign-invested enterprises are temporarily exempted from personal income tax. Examples of 2. practical operations In the process of Yingke Xinchuang (Xiamen) Technology Co., Ltd. applying for listing on the Growth Enterprise Market, Shenzhen Stock Exchange issued an examination letter [2021) No. 010929 "examination and inquiry letter on the application documents for initial public offering and listing on the Growth Enterprise Market of Yingke Xinchuang (Xiamen) Technology Co., Ltd.", in which question 22. Regarding dividend distribution, it is stated that the issuer is requested to explain the compliance of previous dividend taxation. The issuer's sponsor issued a response report to the audit inquiry letter, responded to the aforementioned questions and explained the exemption of the foreign natural person shareholder LIANG CHEN from personal income tax as follows: "Note 2: according to the Notice of the Ministry of Finance and the State Administration of Taxation on Several Policy Issues of Individual Income Tax (Caishuizi [1994) No. 20) and the Announcement of the Ministry of Finance and the State Administration of Taxation No. 177 of 2018 on the Continued Effective List of Individual Income Tax Preferential Policies" Announcement "and other relevant regulations, dividends and bonus income received by foreign individuals from foreign-invested enterprises are temporarily exempted from individual income tax; therefore, LIANG CHEN as a foreign natural person in the company to obtain dividends can be exempted from personal income tax." At this time, the intermediary agency adopts the provisions of Caishuizi [1994] No. 20, and foreign natural person shareholders are exempt from paying personal income tax. To sum up, in the IPO process, if you are involved in the issue of paying dividends to foreign natural person shareholders, you should not only fully search the relevant regulations of our country, pay attention to the validity period of the regulations, but also focus on the different tax laws of local tax bureaus. Interpretation and corresponding implementation.

2022-06-01

Zhongcheng Qingtai | HR Legal Corner: What do you think of this sentence?

The resignation document often contains a similar sentence that "there is no labor dispute between the laborer and the employer", which may be the resignation report signed by the laborer, the resignation certificate unilaterally drawn up by the employer, or the labor contract termination agreement jointly signed by both employers and employees, or even the settlement agreement signed by both employers and employees at the stage of labor arbitration. So in practice, how important is the phrase "there is no labor dispute between workers and employers"? Does it have different effects in different forms of documents? This paper briefly combs this. 1. Resignation report signed by the worker The People's Court of Jiefang District, Jiaozuo City, Henan Province (2021) Yu 0802 No. 4003 Minchu, Jiaozuo City Zhongxin Human Resources Service Co., Ltd., Wang Guixia and other civil judgments of first instance in personnel disputes Court view: Because Wang Guixia's resignation application issued to Zhongxin Company clearly stated that she did not have any labor disputes with Zhongxin Company, Wang Guixia, as a person with full civil capacity, can fully identify and control her behavior, and she should issue her own resignation. The report has a full understanding and foresees the relevant consequences that may arise from it. The resignation report involved in the case stated that "I have no labor dispute with Zhongxin Company", which should be regarded as Wang Guixia's punishment of her rights and voluntarily bear the legal consequences arising therefrom. In this case, Wang Guixia's claim in this case is obviously contrary to her promise in the resignation report, and also violates the principle of good faith in civil litigation. Therefore, the court does not support Wang Guixia's above request. Court of second instance The Intermediate People's Court of Jiaozuo City, Henan Province made a judgment (2022) Yu 08 Minzhong No. 610 to support the trial point of the court of first instance and maintain the original judgment. 2. Certificate of resignation signed by the worker Beijing No.3 Intermediate People's Court (2022) Beijing 03 Minzong No. 1047 Civil Judgment of Second Instance on Labor Dispute between Beijing Anlilong Ecological Agriculture Co., Ltd. and Guan Guixia Court view: The focus of the dispute in this case is whether Anlon should pay a one-time disability employment subsidy to Guan Guixia. If Guan Guixia suffered a work-related injury during her employment and left her job for personal reasons, Anlon shall pay Guan Guixia a one-time disability employment subsidy in accordance with the law. Amylon appealed that Guan Guixia signed the resignation certificate to prove that Guan Guixia approved the contents of the resignation certificate. However, the court held that the resignation certificate was unilaterally issued by Amylon, and Guan Guixia's signature could only prove that she had received the resignation certificate, which could not reflect that Amylon and Guan Guixia had negotiated and reached an agreement on the contents of the resignation certificate. On this ground, Anlon refused to pay a one-time disability employment subsidy, which was not supported by the hospital. 3. The employer and the employee sign an agreement to terminate the labor contract. People's Court of Heping District, Shenyang City, Liaoning Province (2021) Meng Fanchun, No. 26208, Liao 0102 Minchu 19587, Beijing Hualian Supermarket Co., Ltd. Shenyang Third Branch Civil Judgment of First Instance on Labor Dispute and Personnel Dispute Court view: The plaintiff Meng Fanchun (Party B) and Changchun Satellite Road Branch of Jilin North Hualian Supermarket Co., Ltd. (Party A) signed the "Agreement on Dissolution of Labor Contract". Article 2 of the agreement stipulates that both parties have completed the settlement of employment matters such as wages, economic compensation, vacation, overtime, social security and provident fund. After the signing of this agreement, all rights and obligations arising from the labor relationship between the two parties have been terminated, and there is no labor dispute between the two parties, and no further disputes or lawsuits may be filed on the labor relationship. After the agreement is signed, Party A shall pay Party B a one-time economic compensation of 23760.90 yuan (already paid). The plaintiff and the employing unit Jilin North Hualian Supermarket Co., Ltd. Changchun Satellite Road Branch have signed the "Agreement on Dissolution of Labor Contract", which has already agreed on annual leave wages and economic compensation for dissolution of labor contract. The plaintiff filled in the "Application for Resignation of Beijing Hualian Employees" and stated that the reason for the dissolution was dissolution by consensus... The plaintiff had received the amount agreed in the dissolution agreement in this case, because the dissolution of the "Labor Contract Dissolution Agreement" had been fulfilled, so the court did not support the plaintiff's two claims. 4. The employer and the worker sign a settlement agreement at the stage of labor arbitration. People's Court of Gangzha District, Nantong City, Jiangsu Province (2020) Su 0611 Minchu No. 430 Liu Zonghong and Nantong Sanming Fashion Co., Ltd. Civil Judgment of First Instance on Labor Dispute The court's view: The agreement reached between the laborer and the employer on the cancellation or termination of the labor contract, the payment of wages, overtime pay, economic compensation or compensation, etc., does not violate the mandatory provisions of laws and administrative regulations, and there is no fraud, Coercion or the situation of taking advantage of people's danger shall be deemed valid. In this case, Liu Zonghong and Sanming Company reached a settlement agreement under the auspices of the Gangzha Arbitration Commission, which did not violate the mandatory provisions of laws and administrative regulations. Liu Zonghong also failed to provide evidence to prove the existence of fraud, coercion or taking advantage of others, so it should be determined that the settlement agreement is legal and effective, and both parties should be bound by the content of the agreement. The settlement agreement stated that the labor relationship between the two parties will be terminated on July 25, 2019, and there will be no labor disputes including the termination of labor relations, labor remuneration, etc. after the payment is agreed. Liu Zonghong also stated again after receiving the payment. There is no labor dispute with Sanming Company. The above facts show that the labor disputes between Liu Zonghong and Sanming Company including the payment of labor remuneration and economic compensation have been fully resolved. Liu Zonghong now requires Sanming Company to pay the salary and economic compensation for July 2019 (actually claiming the salary difference and the expected salary for not providing labor during the labor contract period), which violates the agreement of the settlement agreement. Moreover, Liu Zonghong also fails to provide evidence to prove the fact that Sanming Company actually worked in July 2019 and did not pay the salary and the wage income difference in the previous period, in addition, Sanming Company is required to pay the wages after the termination of the labor relationship, which has no factual and legal basis. Therefore, the court does not support Liu Zonghong's claim. Summary: If the worker is a person with full capacity for civil conduct, voluntarily promises unilaterally, or signs an agreement to terminate the labor contract and a settlement agreement stating that "there is no labor dispute between the worker and the employer", the court's view is that the worker should follow The principle of good faith fulfills the promises and agreements. However, if the laborer only signs the resignation document issued unilaterally by the employer stating that "there is no labor dispute between the laborer and the employer", the court's view is that the signing act cannot prove that the laborer and the employer have negotiated and reached an agreement on this, and can only be regarded as an act of signing.

2022-05-31