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Outline Investment Principles of 1. Enterprises 1. Principles of investment quality 2, reflect the principle of investor will. 3. Investment compliance principles 4, in line with the main business principle. 5. Principle of moderate investment 2. Investment Supervision Authority Division 1. The main responsibility of the enterprise 2, the state-owned regulatory department funder responsibilities. 3. Investment Plan Management 1, the preparation of the annual investment plan. 2. Consideration and reporting of the annual investment plan 3. Management of annual investment plans by state-owned regulatory authorities 4. SOE Investment Procedures Necessary procedures to be followed before (I) investment decisions 1. Project establishment 2, due diligence, feasibility study, risk assessment. 3, legal opinions, review argument. 4. Audit and evaluation matters (II) investment decision-making process 1. Investment decision-making bodies 2, investment decision review materials. 3, investment decision-making opinion and record. 4, re-fulfill the investment decision-making process matters. (III) special regulatory projects, reported to the state-owned regulatory authorities for review before investment implementation. 1, enterprises should be required to state-owned regulatory authorities to submit project materials 2, the investor audit procedures, feedback written comments. 5. post-investment management (I) post-investment management methods 1. Post-investment management of state-owned enterprises 2. Post-investment supervision by state-owned regulatory agencies (II) equity investment post-investment management 1, according to the law to perform the duties of shareholders. 2, pay attention to the return on investment. 3, promote the normalization of financial control. 4. Strengthen property rights management 5, improve the appointment of personnel performance management system. 6, strict leadership part-time management 7. Strengthening Party Building 6. investment risk management and system construction (I) investment risk management 1, Optimize the governance structure of participating companies and prevent investment management risks. 2, strengthen the management of participation in capital contributions, to prevent the risk of false capital contributions. 3, standardize the use of intangible assets such as name, to prevent the risk of goodwill. 4, the whole process of project risk management. 5, strengthen the audit of investment project agreements. Construction of (II) Investment Management System 1. Basic principles to be followed in investment 2. Investment management process, management department and related responsibilities 3. Investment decision-making procedures, decision-making bodies and their responsibilities 4. Negative list of investment projects 5. Post-investment management system 6, the enterprise investment authorization and supervision system. Text Investment behavior is not only an important means of the layout of state-owned assets, but also an important economic behavior of state-owned enterprises, and the quality of investment affects the preservation and appreciation of state-owned assets to a certain extent. The state-owned assets supervision department has always attached great importance to the supervision of the investment behavior of state-owned enterprises. From the central to the local state-owned assets supervision department, a series of regulations on the management of investment behavior have been issued, and special regulations have been made for domestic and foreign investment. Among them, the special regulations for domestic investment management mainly include the investment management regulations of central enterprises represented by the "Central Enterprise Investment Management Measures", as well as the "Shandong Provincial Enterprise Investment Supervision and Management Measures" issued by local governments such as Shandong Province and Jinan City. Local state-owned enterprise investment management regulations such as the "Jinan Municipal Enterprise Investment Supervision and Management Measures". In addition, there are some related supporting regulations, for example, "Notice on Further Strengthening the Supervision of Financial Derivative Business of Central Enterprises", "Notice of the State-owned Assets Supervision and Administration Commission of Shandong Province on Confirming and Announcing the Main Business of Provincial Enterprises", "Guiding Opinions of the State-owned Assets Supervision and Administration Commission of Shandong Province on Strengthening the Management of Shareholding of Provincial Enterprises", etc. The special regulations for overseas investment supervision mainly include the "Measures for the Supervision and Administration of Overseas Investment of Central Enterprises", "," Measures of Shandong Province. Based on the above norms, this paper will make a comprehensive analysis of the basic issues related to investment compliance, with the investment business process as the main line, in order to guide the compliance investment of state-owned enterprises and promote the preservation and appreciation of state-owned assets. Investment Principles of 1. Enterprises The investment principle is the fundamental criterion that enterprises should follow in the investment behavior and the establishment of the investment system, which is at the core of investment supervision and provides guidance and direction for us to correctly understand the relevant provisions of investment. In the central and local state-owned regulatory provisions, both include the content of investment principles, to sum up, the investment behavior of state-owned enterprises should follow the principle of investment quality, reflect the principle of investors' will, the principle of investment compliance, in line with the principle of main business, the principle of moderate investment, the specific points are as follows: 1, the principle of investment quality. Vigorously cultivate and develop strategic emerging industries, follow the concept of value creation, and improve the level of return on investment; implement the new development concept, adhere to quality first, benefit first, focus on key core technologies and development model innovation, enhance the core competitiveness of enterprises, and achieve high Quality development. 2, reflect the principle of investor will. Serve the national development strategy, in line with the national industrial policy, development planning, as well as the state-owned capital layout structure adjustment orientation, reflecting the wishes of investors. 3, investment compliance principles. Abide by relevant laws and regulations and the articles of association of the enterprise, adhere to the principle of prudence, strictly implement the investment management system, strictly implement the investment decision-making procedures, fully estimate the investment risk, and do a good job in the pre-project feasibility study and post-investment evaluation. 4, in line with the principle of the main business. In line with the enterprise's functional positioning, development strategic planning and investment management system, adhere to the focus on the main business, strict control of non-main business, serious overcapacity industry, high-risk business and low-end inefficient industry investment. 5, the principle of moderate investment. The scale of investment is commensurate with the size of the enterprise's assets, profitability, level of operating cash flow, level of assets and liabilities and financing capacity, and with the enterprise's management capacity and human resources. 2. Investment Supervision Authority Division Clarifying the authority of state-owned assets supervision is the basic work to ensure regulatory compliance. In recent years, the CPC Central Committee and the State Council have successively issued a series of opinions on deepening reform and improving the state-owned assets management system, and successively issued the guiding opinions of the CPC Central Committee and the State Council on deepening the reform of state-owned enterprises and some opinions of the State Council on reforming and improving the state-owned assets management system, Further clarify the authority of state-owned assets supervision, the government's state-owned regulatory agency has also developed a corresponding list of delegated powers. 1, the main responsibility of the enterprise. The enterprise is the main body of decision-making, execution and responsibility of investment, and the responsibilities of the main body of enterprise investment mainly include the construction of the system and the organization and implementation of the two aspects, as follows: In the aspect of system construction:(1) reasonably determine the investment direction, strategy and standard according to the functional orientation and development strategic planning;(2) establish the investment management system, improve the investment management system, optimize the investment management system, formulate a more strict and specific negative investment list of the enterprise, improve the scientific decision-making mechanism of investment, and strengthen the construction of investment management institutions and talent team. Organization and implementation:(1) formulate and implement annual investment plans;(2) strictly manage the investment process and strengthen investment risk prevention and control. Strengthen the preliminary work such as due diligence, feasibility study, examination and demonstration of investment projects, make prudent decisions on investment projects, and report special supervision projects to the provincial SASAC for examination and approval after fulfilling the decision-making procedures;(3) organize the implementation of investment projects, earnestly strengthen project management, and carry out post-project evaluation;(4) fulfill the obligation of submitting investment information and cooperate with supervision and inspection, report the investment management system, investment plan and implementation, post-evaluation of investment projects, etc. in accordance with regulations, and cooperate with supervision and inspection;(5) implement the investment management and accountability system. 2, the state-owned regulatory department funder responsibilities. In accordance with the principle of capital management, the State-owned Assets Supervision and Administration Commission focuses on guiding the direction of investment, standardizing decision-making procedures, improving capital returns, and maintaining capital security. It supervises and manages the investment activities of enterprises and performs the responsibilities of investors, mainly including: (1) To study and guide the investment direction of state-owned capital, confirm the main business of enterprises, and support enterprises to invest according to the development strategic planning and around the main business;(2) to guide and supervise enterprises to establish and improve the investment management system;(3) to urge enterprises to prepare and implement the annual investment plan according to the strategic plan, link it with the financial budget, and implement the record management of the annual investment plan. (4) Formulate a negative list of investment projects for supervision of enterprises, and conduct classified supervision of enterprise investment projects;(5) Supervise and inspect the implementation of the enterprise investment management system, including investment decision-making, implementation, and post-evaluation. (6) Establish a reporting system for enterprise investment matters and an investment supervision information system to monitor and analyze enterprise investment information;(7) Hold accountable for the loss of state-owned assets and other adverse consequences caused by illegal investments. The SASAC has issued a negative list of investment projects for supervised enterprises, set up prohibited and specially supervised investment projects, and implement classified supervision. For prohibited investment projects, enterprises are not allowed to invest; for special supervision investment projects, enterprises should report to the SASAC to perform relevant procedures. The content of the negative list of enterprise investment projects remains relatively stable and is adjusted dynamically in due course. 3. Investment Plan Management The investment behavior of state-owned enterprises shall follow the planned management. Article 11 of the measures for investment supervision and administration of central enterprises clearly stipulates that the investment activities of enterprises shall be included in the annual investment plan. In principle, investment projects not included in the annual investment plan shall not be invested, and the annual investment plan shall be adjusted if additional investment is really needed. The enterprise shall strictly implement the annual investment plan. If the planned investment project changes (including suspension or suspension of implementation, additional investment, new projects, etc.) due to major changes in the production and operation environment, the impact of the change shall be analyzed and the corresponding procedures shall be performed in accordance with the regulations. 1, the preparation of the annual investment plan. An enterprise shall prepare an annual investment plan based on its development strategic plan. The annual investment plan shall follow the investment principle and be in line with the financial budget, and the proportion of non-main business investment in the total annual investment plan shall comply with the provisions of state-owned supervision. The investment projects listed in the plan shall complete the necessary preliminary work and meet the conditions for implementation within the year. Among them, the "Shandong Provincial Enterprise Investment Supervision and Management Measures" clearly stipulates that the proportion of non-main business investment in the total annual investment plan shall not exceed 10% in principle. 2. Consideration and reporting of the annual investment plan After the annual investment plan of the enterprise is reviewed and approved by the board of directors (or the corresponding decision-making body, the same below), it shall be reported to the SASAC in accordance with the regulations, and relevant materials shall be attached. State-owned assets regulatory agencies at all levels have different requirements for the submission of investment plans. Article 12 of the Measures for the Supervision and Administration of Investment by Central Enterprises stipulates that the annual investment plan includes: the main direction and purpose of investment; the scale of investment and the level of asset-liability ratio; investment structure Analysis; sources of investment funds; major investment projects. Article 12 of the "Shandong Provincial Enterprise Investment Supervision and Administration Measures" stipulates that the annual investment plan shall be accompanied by materials such as the feasibility analysis report of the investment plan, the resolutions of the board of directors and meeting minutes, and the review opinions of the chief financial officer. The annual investment plan mainly includes: the overall objectives of the annual investment, including the expected contribution of the implementation of the annual investment to the industrial upgrading, structural optimization, development quality and efficiency improvement of the enterprise; the scale and source of investment, including the total amount of planned investment, the source and composition of funds, the impact of the implementation of investment on the asset-liability ratio, etc.; the direction and structure of investment, including the scale and proportion of various investments, investment regions, investment methods; the main investment projects of the plan, including the investment subject enterprise, the planned investment amount, the source of funds, the schedule, etc. Articles 15 and 16 of the Measures for the Supervision and Administration of Investment of Jinan Municipal Enterprises stipulate that the annual investment plan of an enterprise shall report the annual investment plan, the annual investment plan analysis report, the minutes of the Party Committee and the resolution of the board of directors. Among them, the analysis report of the annual investment plan of the enterprise mainly includes the principle, basis and scope of the preparation of the annual investment plan; the situation of the annual investment plan, including the analysis of the investment direction, scale, structure and major investment projects; the necessity and feasibility, including the analysis of the internal and external environment of the investment, the expected contribution of the investment, the supporting conditions required for the implementation of the plan, the source of funds, etc. 3. Management of annual investment plans by state-owned regulatory authorities State-owned assets regulatory agencies at all levels have different requirements for the management of investment plans. Article 13 of the "Measures for the Supervision and Administration of Investment by Central Enterprises" clearly stipulates that the annual investment plans of central enterprises shall be subject to record management. The state-owned assets supervision departments of Shandong Province and Jinan City have not made clear the filing management of the annual investment plan, and realize the supervision through the supervision and guidance of the annual investment plan. The state-owned assets supervision department supervises and guides the preparation of the annual investment plan of the enterprise according to the main business of the enterprise, the negative list of investment projects and the strategic plan of the enterprise development, focusing on the decision-making process, investment direction, investment scale, capital source and other aspects. When necessary, feedback to the company within a specified period of time after receiving the annual investment plan report. Companies should make changes to their annual investment plans based on feedback. 4. SOE Investment Procedures Necessary procedures to be followed before (I) investment decisions 1. Project establishment. In the process of project establishment, the focus is on examining whether the project conforms to the annual investment plan, whether it belongs to the prohibited investment project on the negative list, whether it conforms to the enterprise's functional orientation and main business management regulations, development strategic planning and investment management system, and shall not enter the prohibited project field or participate in commercial speculation through equity participation and other means. 2, due diligence, feasibility study, risk assessment. Before making a decision on an investment project, an enterprise should do a comprehensive and adequate due diligence, feasibility study, risk assessment and other preliminary work from the aspects of policy, market, technology, efficiency, environment, safety and social stability, and do a good job in the research and demonstration of the whole process of project financing, investment, management and exit. For new investment projects, in-depth feasibility studies and demonstrations in technology, market, finance and law should be conducted. (1) Due diligence on the object of cooperation. According to the relevant provisions of the "Guiding Opinions of the State-owned Assets Supervision and Administration Commission of Shandong Province on Strengthening the Management of Provincial Enterprises' Equity Participation" (Lu Guozi [2021] No. 12), equity participation investment should be combined with feasibility studies and demonstrations, comprehensive and in-depth due diligence, through various credit information platforms, Third-party investigations and other methods review the qualifications and reputation of partners, screening and judgment one by one, and selecting partners with high management level, good qualifications and strong economic strength. Intended partners with records of breach of trust or administrative penalties, criminal offences and other illegal records shall be prudent or prohibited to cooperate depending on the circumstances. An enterprise shall not choose a partner who has a specific relationship with the participating investor and the leaders of its controlling shareholders at all levels (referring to the kinship of spouses, children and their spouses, as well as the relationship of common interests, etc.). (2) On the manner of participation. According to the relevant provisions of the "Guiding Opinions of the State-owned Assets Supervision and Administration Commission of Shandong Province on Strengthening the Management of Provincial Enterprises' Equity Participation" (Lu Guozi [2021] No. 12), equity participation investment should be combined with its own business development needs, and the shareholding ratio should be reasonably determined, with capital as the link and property rights As the basis, the rights and obligations of all shareholders are reasonably agreed upon in accordance with the law. It is not allowed to carry out equity participation cooperation by means of fixed dividends and other "named equity participation cooperation, actual loan financing", as well as equity holding, false joint ventures, affiliated operations and other means. 3. Legal opinion
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政府采购是以《政府采购法》为核心的综合性法律工程，《政府采购法》不仅与《预算法》《民法典》《招标投标法》《行政处罚法》《行政事业性国有资产管理条例》等法律法规构成了我国政府采购活动的全过程，还与《中小企业促进法》《节约能源法》《环境保护法》《科学技术进步法》等法律共同组成了我国的政府采购政策体系，在财政支出体系中具有无可替代的重要地位，为实现我国的宏观经济调控发挥着重要作用。医疗器械作为政府采购中较为特殊的货物，具有政府采购货物一般特征的同时，又因直接关系人体健康和生命安全而有其特殊性，本文以中央预算单位采购医疗器械为例，对政府采购货物全流程框架予以简析，期望能够为政府采购工作提供实践参考。 一、政府采购与医疗器械概述 （一）政府采购概述 依据《政府采购法》的规定，政府采购是指各级国家机关、事业单位和团体组织，使用财政性资金采购依法制定的集中采购目录以内的或者采购限额标准以上的货物、工程和服务的行为。因此，政府采购的构成要素有采购主体、资金来源、集中采购目录和采购限额标准、采购标的等四要素。 采购主体包括国家机关、事业单位和团体组织。政府采购医疗器械的采购主体主要是公立医院，而公立医院则属于事业单位。 政府采购使用的资金为财政性资金，即纳入预算管理的资金。依据《政府采购法》的规定，政府采购活动的监督管理职权主要由各级人民政府财政部门行使。依据《预算法》的规定，国家实行一级政府一级预算。预算体系包含中央，省、自治区、直辖市，设区的市、自治州，县、自治县、不设区的市、市辖区，乡、民族乡、镇五级预算。但是，考虑乡镇政府采购规模较小、管理水平相对落后、“乡财县管”、政府采购意识较淡薄等诸多因素，我国的大多数乡镇一级政府采购均纳入县级政府采购管理，比如，《山东省政府采购管理办法》（山东省人民政府令第262号）第五十四条即做了如此规定。 政府采购标的，包括货物、工程和服务。依据《政府采购法》及其实施条例的规定，货物是指各种形态和种类的物品，包括原材料、燃料、设备、产品等。工程，是指建设工程，包括建筑物和构筑物的新建、改建、扩建、装修、拆除、修缮等。服务，是指除货物和工程以外的其他政府采购对象，包括政府自身需要的服务和政府向社会公众提供的公共服务。 此外，为了进一步明确“采购”的概念，《政府采购法》还规定，采购是指以合同方式有偿取得货物、工程和服务的行为，包括购买、租赁、委托、雇用等。政府采购作为公共财政支出的重要组成部分，先预算后采购应是政府采购的题中应有之义。根据《民法典》《民法典担保解释》等法律法规的规定，我国对机关法人、公益为目的的非营利性医疗机构等主体提供的担保行为存在诸多限制，同时，鉴于我国对政府举债融资行为作出了严格的限制，因此，作为兼具融资和法定非典型担保属性的融资租赁行为，不宜作为政府采购医疗器械的采购形式。 （二）我国医疗器械的行业现状概述 根据《医疗器械监督管理条例》的规定，医疗器械是指直接或者间接用于人体的仪器、设备、器具、体外诊断试剂及校准物、材料以及其他类似或者相关的物品，包括所需要的计算机软件；其效用主要通过物理等方式获得，不是通过药理学、免疫学或者代谢的方式获得，或者虽然有这些方式参与但是只起辅助作用；其目的是：（一）疾病的诊断、预防、监护、治疗或者缓解；（二）损伤的诊断、监护、治疗、缓解或者功能补偿；（三）生理结构或者生理过程的检验、替代、调节或者支持；（四）生命的支持或者维持；（五）妊娠控制；（六）通过对来自人体的样本进行检查，为医疗或者诊断目的提供信息。 根据《国家食品药品监督管理总局关于发布〈医疗器械分类目录〉的公告》（国家食品药品监督管理总局公告2017年第104号）和《国家药监局关于发布〈医疗器械分类目录动态调整工作程序〉的公告》（国家药品监督管理局公告2021年第60号）的规定，医疗器械按技术专业和临床使用特点可以分为22个子目录。子目录由一级产品类别、二级产品类别、产品描述、预期用途、品名举例、管理类别等组成。国家依据该目录对医疗器械的注册、备案进行管理。另外，根据国家药监局医疗器械标准管理中心《关于公开〈中国医疗器械标准目录及适用范围〉的通知》的规定，按照医疗器械技术领域，对现行有效的1852项医疗器械标准的适用范围以及标准层级、效力、名称、归口单位等信息逐一进行了梳理，为医疗器械的采购、管理提供了指引性依据。 我国医疗器械行业市场规模较大，且增长持续。根据中国药品监督管理研究会的统计，2019年，医疗器械市场规模为7200亿元，较2015年的3080亿元增长了一倍。2020年，因新冠疫情的突发，与疫情防控相关的大量诊断试剂、医用口罩、体外膜肺氧合（ECMO）机器等一系列医疗器械的需求迅速激增，医疗器械行业主营销售总收入达8725亿元左右，增长幅达21%。自2015年以来，医疗器械行业收入的年均增长率保持在20%左右。 （三）政府采购医疗器械的范围 根据《财政部关于印发〈政府采购品目分类目录〉的通知》（财库〔2013〕189号，以下简称“财库〔2013〕189号文”）的规定，与“医疗器械”相关的货物品目有“医疗设备（编码：A0320）”品目及其33个子品目，包括手术器械（编码：A032001）、普通诊察器械（编码：032002）……其他医疗设备（编码：A032099）等品目。 以中央预算单位采购医疗器械为例，根据《国务院办公厅关于印发中央预算单位政府集中采购目录及标准（2020年版）的通知》（国办发〔2019〕55号，以下简称“国办发〔2019〕55号文”）的规定，前述“医疗设备（编码：A0320）”品目及其33个子品目未纳入中央预算单位政府集中采购目录，同时，中央预算单位分散采购货物的限额标准为100万元以上。因此，中央预算单位预算年度内采购同一品目或类别的医疗器械达到100万元以上的，属于政府采购医疗器械。 二、政府采购预算管理 （一）政府采购预算编制 根据《政府采购法》的规定，负有编制部门预算职责的部门在编制下一财政年度部门预算时，应当将该财政年度政府采购的项目及资金预算列出，报本级财政部门汇总。部门预算的审批，按预算管理权限和程序进行。根据《预算法》的规定，预算的组织程序包含预算草案编制、预算草案的汇总与审批、正式预算、预算执行、预算调整、决算、预算执行情况报告等环节。 实践中，预算草案经编制、汇总、审批形成正式预算前，涉及经费测算、新增资产配置预算、政府采购预算、一上预算、二上预算等多个过程。其中，在政府采购的采购环节中，预算“二上数”具有重要的实践意义。根据《财政部关于做好政府采购信息公开工作的通知》（财库〔2015〕135号）的规定，采购项目的预算金额以财政部门批复的部门预算中的政府采购预算为依据；对于部门预算批复前进行采购的项目，以预算“二上数”中的政府采购预算为依据。 实践中，公立医院使用“自有资金”的采购存在未编制政府采购预算、未纳入政府采购范畴等问题。《财政部对十三届全国人大四次会议第8584号建议的答复》（财库函〔2021〕6号）明确指出，根据《预算法》《事业单位财务规则》（财政部令第108号）等法律规定，公立医院的财政补助收入以及事业收入、经营性收入和其他收入等全部收入，均应纳入预算管理，公立医院凡使用纳入预算管理的资金开展的政府采购活动，都应当执行政府采购规定。 （二）绩效管理 根据《预算法》《中共中央 国务院关于全面实施预算绩效管理的意见》、《国务院关于进一步深化预算管理制度改革的意见》（国发〔2021〕5号）、《财政部关于贯彻落实〈中共中央 国务院关于全面实施预算绩效管理的意见〉的通知》（财预〔2018〕167号）等有关规定，各级政府收支预算全面纳入绩效管理，政府采购项目的全过程纳入绩效管理。 公立医院采购医疗器械的绩效管理，需要按照《事业单位财务规则》（财政部令第108号）、《财政部 卫生部关于印发〈医院财务制度〉的通知》（财社〔2010〕306号）、《财政部 国家卫生计生委 国家中医药局关于加强公立医院财务和预算管理的指导意见》（财社〔2015〕263号）、《国家卫生健康委、国家中医药管理局关于印发〈公立医院全面预算管理制度实施办法〉的通知》（国卫财务发〔2020〕30号）等有关规定的要求，区分预算编制、审批、执行、决算与评价等环节，完善绩效管理流程，制订、执行预算绩效管理制度和实施细则，并按照《国务院办公厅关于加强三级公立医院绩效考核工作的意见》（国办发〔2019〕4号）、《国家卫生健康委办公厅关于印发〈国家三级公立医院绩效考核操作手册（2022版）〉的通知》（国卫办医函〔2022〕92号）的规定进行绩效考核。 （三）资产配置标准 根据《政府采购法》及其实施条例、《行政事业性国有资产管理条例》和《中共中央 国务院关于印发〈党政机关厉行节约反对浪费条例〉的通知》（中发〔2013〕13号）等有关规定，政府采购应当依法完整编制采购预算，严格执行经费预算和资产配置标准，合理确定采购需求，不得超标准采购。 就医疗器械的资产配置，根据《医疗器械监督管理条例》和《国家卫生健康委 国家药品监督管理局关于印发〈大型医用设备配置与使用管理办法（试行）〉的通知》（国卫规划发〔2018〕12号）等法律法规的规定，医疗器械使用单位配置大型医用设备，应当经省级以上人民政府卫生主管部门批准，取得大型医用设备配置许可证。大型医用设备配置管理目录分为甲、乙两类。甲类大型医用设备由国家卫生健康委员会负责配置管理并核发配置许可证；乙类大型医用设备由省级卫生健康行政部门负责配置管理并核发配置许可证。同时，卫生部门对不同公益目的、层级的医院规定了不同的医疗器械等卫生资源配置，如《关于印发发热门诊建筑装备技术导则（试行）的通知》（国卫办规划函〔2020〕683号）对发热门诊配置医疗器械设置了参考目录。 （四）结余结转资金的使用 根据《国务院办公厅关于进一步做好盘活财政存量资金工作 的通知》（国办发〔2014〕70号）、《财政部关于进一步加强地方财政结余结转资金管理的通知》（财预〔2013〕372号）、《财政部关于印发推进地方盘活财政存量资金有关事项的通知》（财预〔2015〕15号）和《财政部关于印发〈中央部门结转和结余资金管理办法〉的通知》（财预〔2016〕18号）的规范性文件规定，预算单位应当细化支出预算编制，加快预算执行进度，建立定期清理机制，压缩结余结转资金规模，深化部门预算管理改革，加强部门结余结转资金管理。其中，部门预算结余资金以及结转两年以上的资金，由同级财政收回，统筹使用。 三、政府采购合同管理 （一）政府采购合同与民法典合同编的一般关系 《政府采购法》第四十三条规定，政府采购合同适用合同法（《合同法》已于2021年1月1日废止）。同时，《民法典》规定招标投标买卖的当事人的权利和义务以及招标投标程序等，依照有关法律、行政法规的规定。因此，除政府采购法律法规有特殊规定的，政府采购合同应当适用《民法典》的规定。 在合同类型上，根据《财政部关于印发〈政府采购需求管理办法〉的通知》（财库〔2021〕22号，以下简称“财库〔2021〕22号文”）的规定，政府采购合同应当按照民法典规定的典型合同类别，结合采购标的的实际情况确定合同类型。 在合同文本上，根据财库〔2021〕22号文的规定，政府采购合同文本应当包含法定必备条款和采购需求的所有内容，包括但不限于标的名称，采购标的质量、数量（规模），履行时间（期限）、地点和方式，包装方式，价款或者报
2022-05-09
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2022-05
1. Introduction The homestead is the collective construction land acquired by the villagers based on the membership of the collective economic organization and used for the construction of houses and their ancillary facilities. Its ownership belongs to the village collective, and the villagers only enjoy the right to use it, which has the nature of social welfare. Based on the principle of "integration of real estate", the houses built by villagers after obtaining the homestead also have social security functions. At present, affected by many factors, the phenomenon of urban residents buying houses on rural homestead occurs from time to time. Can houses on rural homesteads be bought and sold? What is the validity of the sale contract? What kind of legal risks are there? This paper will analyze the case and the referee's point of view. 2. Cases and Referee's Point of View (I) there are no major legal obstacles to the sale of homestead houses between members of the same collective economic organization, it is also recognized in judicial practice. Case: Wu Shihuang and Ding Yongzhong Dispute over Rural Housing Sales Contract (Taizhou Intermediate People's Court of Zhejiang Province [2020] Zhejiang 10 Min Zhong No. 1242) The court held that the focus of the dispute in this case is whether the deed of sale signed by Ding Yongzhong and Wu Shihuang on February 15, 1995 is valid. According to the current law, the homestead is collectively owned by farmers, and the owner of the right to use the homestead only has the right to possess and use the homestead. In principle, the owner of the right to use the homestead can only use the homestead to build houses and ancillary facilities for their residential use. If non-members of the collective economic organization are allowed to obtain the right to use the homestead, it will essentially constitute an obstacle to the collective's exercise of ownership on the homestead. However, the performance of the contract will not lead to the transfer of the right to use the homestead outside the collective economic organization, which does not affect the collective land ownership enjoyed by the collective economic organization. Therefore, there are no major legal obstacles to the sale of homestead houses among the members of the same collective economic organization, It is also recognized in judicial practice. Therefore, the key to the validity of the deed of sale is whether the subject of the deed of sale is a member of the same collective economic organization. At the time of signing the agreement, Wu Shihuang and his wife Sun Caiqin were married. Wu Shihuang's purchase of the homestead belonged to the joint property of his husband and wife with Sun Caiqin. After the purchase, he built a house on the homestead. Wu Shihuang and Sun Caiqin also lived in the house together, that is, the rights obtained also belonged to Wu Shihuang and Sun Caiqin. Although Wu Shihuang and Ding Yongzhong are not members of the same collective economic organization, Sun Caiqin and Ding Yongzhong are members of the same collective economic organization and are qualified to purchase and enjoy the right to use the homestead involved in the case. Therefore, the deed of sale involved in the case should be determined to have occurred between members of the same collective economic organization. The deed of sale involved in the case does not violate the current land management laws and regulations of our country and should not be deemed invalid. In other words, the house involved in the case has been transferred to Sun Ruzhi. Sun Ruzhi is a member of the collective economic organization where the house is located and has the conditions to own the right to use the homestead. The house still belongs to the members of the village collective economic organization in the end. The transfer of the homestead involved in the case actually no longer violates the relevant interests of the village collective, nor does it violate the current land management laws and regulations of our country, the Court does not support Ding Yongzhong's claim to confirm that the deed of sale signed with Wu Shihuang is invalid. (II) urban residents are strictly prohibited from buying rural houses on homesteads. The sales contract involved in the case is invalid because it violates the mandatory provisions of the law and national policy on the circulation of the right to use rural homestead. Case: Zhang Meiping and Xu Hongbo's Re-trial of Disputes over Rural Housing Sales Contracts (Shandong Higher People's Court [2020] Lu Min Zai No. 190) The Court held that the focus of the retrial of this case was: 2. Whether the "house sale agreement" involved in the case is invalid. On the question of whether the "House Sale Agreement" signed by the two parties involved on February 28, 2002 is invalid. After the complainants Zhang Meiping and Xu Hongbo signed the above agreement with the complainants Yang Kun and Wang Xiaobo, the rural homestead, houses and related certificates registered in Xu Hongbo's name were delivered to Yang Kun and Wang Xiaobo for residential use, while the complainants Yang Kun and Wang Xiaobo were both urban registered permanent residence and were not members of the collective economic organization of the village where the houses involved were located. The "the People's Republic of China Land Management Law" and related laws and regulations and national policies make strict restrictions on the transfer of the right to use rural homesteads. The purpose is to prohibit the transfer of the right to use rural homesteads outside collective economic organizations to protect collective organizations. The interests of members. When the "the People's Republic of China Land Administration Law" was revised in 1998, the original 41 provisions on the use of collective land for urban non-agricultural household registration were deleted. When it was revised in 2004, Article 63 stipulated that "the right to use land collectively owned by farmers shall not be transferred, transferred or leased for non-agricultural construction"; At the national policy level, on May 6, 1999, the General Office of the State Council issued the "Notice on Strengthening the Management of Land Transfer and Prohibiting Land Speculation" (Guo Ban Fa [1999] No. 39), Article 2, paragraph 2, which stipulates that "farmers' houses shall not be sold to urban residents, nor shall urban residents be approved to occupy farmers' collective land to build houses, and relevant departments shall not issue land use certificates and property certificates for houses built and purchased illegally", decision of the State Council on Deepening Reform and Strict Land Management (No. 28 [2004] of the State Council) and Issued by the Ministry of Land and Resources<关于加强农村宅基地管理的意见>The notice (land resources issued [2004] 234) and other normative documents are clearly prohibited for urban residents to buy rural houses on the homestead. Therefore, the "Housing Sale Agreement" involved in the case violated the mandatory provisions of laws and national policies on the transfer of rural homestead use rights, and the housing sales involved in the case should be determined to be invalid. If the (III) is approved by the authority with the power of approval and approved by the local collective economic organization, and the contract has been performed without harming the collective and social public interests, it can be deemed valid. Case: Jiang Kaikui and Huang Yongcai Confirmed Invalidation of Contract (Linyi Intermediate People's Court of Shandong Province [2018] Lu 13 Min Zhong No. 8891) The court held that in this case, Jiang Kaikui and Huang Yongcai signed a house purchase and sale agreement in May 2009 and paid the purchase price on the same day. On May 6, 2009, both parties jointly signed a house purchase and sale contract (red and white deeds) in the Real Estate Bureau and delivered the house on the same day. On May 15, 2009 and May 15, 2009, Jiang Kaikui assisted Huang Yongcai in handling the change registration procedures of the house involved in Feixian Real Estate Management Bureau, feixian Real Estate Administration registered the change of the house involved in the case in Huang Yongcai's name, and issued Huang Yongcai the certificate of house ownership S0 × 87. The act of buying and selling houses has been approved by the authority with the right of approval and approved by the local collective economic organization, and the house sale contract has been fulfilled, and the sale has not harmed the collective and social public interests. Therefore, the house sale contract between the two parties in this case is the true intention of both parties, and there is no situation stipulated in Article 52 of the the People's Republic of China Contract Law, which should be deemed valid according to law. (IV) the house is finally purchased by the members of the collective economic organization of the village after the circulation and has been fulfilled, it means that the right to use the homestead has been restored to the scope permitted by laws and regulations, that is, the illegality of the first-hand house buying and selling has been eliminated and is not deemed invalid. Case: Zheng Wendi et al. and Peng Guizhen et al. (Beijing No.1 Intermediate People's Court [2021] Jing 01 Min Zhong No. 8482) The court held that Zheng Wendi's claim to divide the interests of demolition was based on the fact that the contract for the sale of rural houses signed with Peng Deqi was confirmed invalid by the court, but Peng Deqi said that he had already sold the houses involved to Peng Guizhen, a villager from Erjie Village, Kangzhuang Town, and the sale of rural houses should be valid. Therefore, the focus of the dispute in this case is the effectiveness of the serial sale of rural houses. In this regard, the court argued as follows: the right to use the homestead is a right enjoyed by the members of the rural collective economic organization, which is related to the specific membership of the owner, and non-members of the collective economic organization have no right to obtain or obtain it in disguised form, but it is not prohibited to circulate within the members of the collective economic organization. In the serial sale of rural houses, the former first-hand housing sales contract is confirmed to be invalid, which does not necessarily affect the validity of the latter-hand housing sales contract, and should be determined according to whether there are other statutory invalid circumstances in the latter-hand sales contract. In this case, the disputed house has gone through two sales. Zheng Wendi sold the disputed house to Peng Deqi in 1997 and Peng Deqi sold the disputed house to Peng Guizhen in 2010. In the above-mentioned sales process, because Peng Deqi was not a villager in Yanqing District, his purchase of the litigious house was deemed invalid by the court according to law, but Peng Deqi sold the litigious house to Peng Guizhen, who was a villager, which means that the right to use the homestead has been restored to the scope permitted by laws and regulations, that is, the illegality of first-hand housing sales has been eliminated. 3. Summary Analyzing the judgment rules of the above cases, it is not difficult to summarize the basic attitude of the court to the validity of the contract for the sale of houses on rural homesteads. It is summarized as follows: A contract (I) the purchase and sale of a house on a homestead between members of the same collective economic organization is valid. Here, "between members of the same collective economic organization" should be understood in a broad sense. Including: ① both the buyer and the seller are members of the collective economic organization of the village where the house is located; ② the buyer is not a member of the collective economic organization of the village where the house is located at the time of purchase, and has become a member of the collective economic organization of the village at the time of litigation; ③ the buyer is not a member of the collective economic organization of the village where the house is located, but his spouse, parents and children are members of the members of the collective economic organization. In the above three cases, the housing sales contract signed by the buyer and the seller should be determined to occur between members of the same collective economic organization and should not be deemed invalid. (II) the contract for the sale of homestead houses between members of the same collective economic organization is deemed invalid in principle, it can be deemed valid if it is approved by the organization or department with the right of approval. (III) the house is finally purchased by the members of the collective economic organization of the village after the transfer, and the contract has been fulfilled, the contract shall not be deemed invalid. According to the "Decision of the State Council on Deepening Reform and Strict Land Management" (Guo Fa [2004] No. 28), "Prohibit urban residents from purchasing homesteads in rural areas", "The Office of the Central Rural Work Leading Group and the Ministry of Agriculture and Rural Affairs on Further Strengthening the Management of Rural Homesteads" Notice "(Zhong Nong Fa [2019] No. 11)" Homesteads are the basic housing security for rural villagers, it is strictly forbidden to use rural homestead to build villa compound and private hall. It is strictly forbidden to illegally occupy, buy and sell homestead in the name of circulation. Under the pattern of "integration of real estate", the purchase of rural houses by non members of the collective economic organization is easy to cause damage to the rights and interests of the collective economic organization. Therefore, regarding the validity of the contract for the sale of houses on the homestead, the court's judgment is based on the principle of invalidity, and validity is the exception. For the homestead sales contract after the confirmation of invalid treatment, the author briefly summarized as follows: In the above-mentioned judicial practice, the dispute requiring confirmation of the validity of the homestead housing contract is mostly due to the increase in the value of the house caused by the expropriation and demolition of the land after the sale of the rural house, and the seller (villagers) filed a lawsuit to confirm the invalidity of the contract. If the contract is confirmed invalid by the court and the house has not been demolished, the claim shall be made after the specific relocation interests are clear. If the house on the homestead has been demolished due to expropriation and cannot be returned, the court generally tends to think that the seller violates the principle of good faith and fairness, combined with the fault of both parties, according to the seller, buyer 3: proportional distribution of 7 (see civil judgment No. 11060 of the Intermediate People's Court of Qingdao City, Shandong Province [2021] and civil judgment No. 3888 of the Intermediate People's Court of Xuzhou City, Jiangsu Province [2021]). However, if there is an agreement on the demolition compensation in the sales contract, from its agreement, the validity of the clause will not be affected by the invalidity of the sales contract (see Shandong Qingdao Intermediate People's Court [2021] Lu 02 Minshen No. 418 Civil Ruling).</关于加强农村宅基地管理的意见>
2022-05-09
08
2022-05
Recently, we have been entrusted by the consultant unit to issue a legal opinion on the 20% property share of a limited partnership enterprise to be transferred. Among them, regarding the transaction method of the target share transfer, that is, whether the state-owned enterprise needs to enter the market to transfer its property share in the limited partnership enterprise, after inquiring about relevant laws and regulations, the website of SASAC and consulting with the State-owned Assets Supervision and Administration Commission of Shandong Provincial People's Government, it is preliminarily believed that the transfer of the share of the property of a limited partnership held by the state-owned advisory unit in that country does not need to be made public with the property rights trading institution. However, in practice, due to the lack of clear legal provisions, it is controversial whether the transfer of limited partnership property shares by state-owned enterprises is subject to the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (Order No. 32 of the Ministry of Finance of the State-owned Assets Supervision and Administration Commission of the State Council) and whether it is necessary to enter the market for transactions. I. Controversies and main points in practice [Viewpoint 1]: State-funded limited partnerships are not subject to Decree 32, and the transfer of shares of limited partnership property by state-owned enterprises does not need to enter the transaction. The main reasons for holding this view are as follows: The legislative basis of Decree No. 1.32 does not include the Partnership Law, so state-funded limited partnerships are not regulated and bound by it. 2. The State-owned Assets Supervision and Administration Commission of the State Council has made it clear in its response to a question on its official website on May 27, 2019 that "the scope of application of Decree 32 is for corporate enterprises established under the the People's Republic of China Company Law. The supervision and management of the transfer of shares of limited partnerships by state-owned enterprises shall be stipulated separately.", As a result, partnerships established under the the People's Republic of China Partnership Act are not subject to Decree 32, and the transfer of shares of limited partnership property by state-owned enterprises does not require a market entry transaction. [Viewpoint 2]: The transfer of the share of limited partnership property by state-owned enterprises shall be subject to Decree No. 32 and shall be carried out publicly in property rights trading institutions. The main reasons for holding this view are as follows: 1. From the definition of the concept of state-owned assets of enterprises and state-owned enterprises and enterprises, the provisions of the State-owned assets Law of Enterprises and Decree No. 32 on "state-funded enterprises", "state-owned and state-controlled enterprises, enterprises funded by state-owned enterprises" and "various forms of capital contribution to enterprises" do not exclude "partnership enterprises, the share of limited partnership property held by a state-owned enterprise belongs to the state-owned assets of the enterprise, so the transfer of the share of limited partnership property by a state-owned enterprise shall be made public in the property rights trading institution. 2. The reply to the question made by the State-owned Assets Supervision and Administration Commission of the State Council on its official website on May 27, 2019, that is, "The scope of application of Decree No. 32 is for corporate enterprises established in accordance with the the People's Republic of China Company Law. The supervision and management of the transfer of shares of limited partnerships by state-owned enterprises is separately stipulated" is not a formal document, which has no legal effect, and the reply also indicates that the opinion is for reference only. 3. On February 7, 2020, the State-owned Assets Supervision and Administration Commission of the State Council issued the Interim Provisions on the Registration of State-owned Rights and Interests of Limited Partnership Enterprises, Article 1 of which states that its purpose is "to strengthen the registration and management of state-owned rights and interests of limited partnership enterprises and to reflect the status of state-owned rights and interests of limited partnership enterprises in a timely, accurate and comprehensive manner, in accordance with the" State-owned Assets Law of the People's Republic of China Enterprises "," the People's Republic of China Partnership Enterprise Law "," Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises "(State Council Order No. 378) and other relevant laws and regulations, these regulations are formulated". It can be seen from the promulgation of these regulations that the supervision The department has begun to strengthen the supervision of the state-owned rights and interests of limited partnerships. At present, although there are no laws and regulations to make clear provisions on the transfer of state-owned shares of partnership enterprises, the introduction of this provision to a certain extent releases a signal that the disposal of state-owned rights and interests of limited partnership enterprises may be clearly regulated in the future. Two relevant laws and regulations 1. Law on State-owned Assets of the People's Republic of China Enterprises (hereinafter referred to as the Law on State-owned Assets of Enterprises) Article 2: "The state-owned assets of enterprises (hereinafter referred to as state-owned assets) referred to in this Law refer to the rights and interests formed by the state's various forms of capital contributions to enterprises." Article 5 The term "state-funded enterprises" as mentioned in this Law refers to wholly state-owned enterprises and wholly state-owned companies, as well as state-owned capital holding companies and state-owned capital shareholding companies. Article 30 Major matters such as merger, division, restructuring and listing of state-funded enterprises, increase or decrease of registered capital, issuance of bonds, major investment, provision of large amount of guarantee for others, transfer of major property, large amount of donation, distribution of profits, dissolution and application for bankruptcy shall abide by laws, administrative regulations and the provisions of the articles of association of the enterprise, and shall not damage the rights and interests of investors and creditors. Article 51 The term "transfer of state-owned assets" as mentioned in this Law refers to the act of transferring the rights and interests formed by the state's capital contribution to the enterprise to other units or individuals in accordance with the law, except for the free transfer of state-owned assets in accordance with the provisions of the state. Article 54: "The transfer of state-owned assets shall follow the principles of compensation for equal value and openness, fairness and impartiality. Except for those that can be transferred by direct agreement in accordance with the provisions of the State, the transfer of state-owned assets shall be carried out openly in property rights trading venues established in accordance with the law". 2. Measures for the Supervision and Administration of the Transactions of State-owned Assets of Enterprises (hereinafter referred to as "Decree No. 32") Article 1 In order to regulate the trading of state-owned assets of enterprises, strengthen the supervision and management of state-owned assets transactions of enterprises, and prevent the loss of state-owned assets, these measures are formulated in accordance with the Law on State-owned Assets of the People's Republic of China Enterprises, the the People's Republic of China Company Law, the Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises and other relevant laws and regulations. Article 3 The transaction of state-owned assets of enterprises referred to in these Measures includes: (1) the transfer of rights and interests formed by institutions performing the duties of investors, state-owned and state-owned holding enterprises, and state-owned actual control enterprises (hereinafter referred to as the transfer of enterprise property rights); the increase of capital by (II) state-owned and state-owned holding enterprises, and state-owned actual control enterprises (hereinafter referred to as enterprise capital increase), except for the government's investment in state-funded enterprises by increasing capital, (III) the transfer of major assets of state-owned and state-controlled enterprises and state-controlled enterprises (hereinafter referred to as the transfer of enterprise assets). Article 4 The term "state-owned and state-owned holding enterprises and state-owned actual control enterprises" as mentioned in these Measures includes: wholly state-owned enterprises (companies) funded by (I) government departments, institutions and institutions, as well as state-owned wholly-owned enterprises in which the above-mentioned units and enterprises directly or indirectly hold 100% of the total shares; (II) the units and enterprises listed in the (I) paragraph of this article are individually or jointly funded, with a total ownership of more than 50%, and one of them is the enterprise with the largest shareholder; (III) the enterprises listed in the (I) and (II) paragraphs of this article, the subsidiary enterprises at all levels with an equity ratio of more than 50%; (IV) government departments, institutions, institutions, single state-owned and state-owned holding enterprises directly or indirectly hold less than 50% of the shares, but are the largest shareholder, and through the shareholders' agreement, the articles of association, the resolution of the board of directors or other agreement arrangements can actually control the enterprise. Article 13 The transfer of property rights shall, in principle, be carried out openly through the property rights market. The transferor may, according to the actual situation of the enterprise and the work schedule, adopt a combination of information pre-disclosure and formal disclosure, disclose the property rights transfer information in stages through the website of the property rights trading institution, and openly solicit the transferee. The time for formal disclosure of information shall not be less than 20 working days. three summary The author believes that although the SASAC has made a targeted reply to the question of whether the transfer of the share of limited partnership property by state-owned enterprises is applicable to Decree 32, the content of the reply is not comprehensive, the expression is not clear, and it is not an official document, which has no legal effect. According to the provisions of the State-owned Assets Law of Enterprises, the share of limited partnership property held by state-owned enterprises belongs to the state-owned assets of enterprises. In principle, the transfer of the share of limited partnership property by a state-owned enterprise shall be carried out publicly in the property rights trading place. At present, there is no clear legal regulation on whether the transfer of limited partnership property shares by state-owned enterprises needs to be traded, and there are disputes in practice. However, from the perspective of relevant legislative purposes, the principles of state-owned assets trading and the prudence of state-owned assets supervision, the transfer of limited partnership property shares by state-owned enterprises can be carried out openly in property rights trading institutions with reference to the application of Decree No. 32, and it is best to get a written reply to avoid the transaction of state-owned assets being identified as a violation of regulations and causing the loss of state-owned assets.
2022-05-08
07
2022-05
Recently, the new crown virus Omicjon variant strain caused a national outbreak. The outbreak of the epidemic is bound to be accompanied by the corresponding isolation, closure, control measures, the necessary prevention and control so that we have to make changes and adjustments to life, work, but also to the normal employment management of enterprises to bring challenges. Small and medium-sized enterprises, catering, tourism, training and other industries are the main groups severely affected by the epidemic, how to control labor costs, legal compliance, and prevent legal risks in the severe situation of the epidemic, involving many specific issues. This paper provides some guidance for enterprises only from the aspects of wage payment, annual leave arrangement, contract management and limitation suspension. 1. Wage Payment As stated in the previous article, the Human Resources and Social Security Department [2020] No. 5 "Notice on Properly Handling Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected by Novel Coronavirus", [2020] No. 8 "Opinions on Stabilizing Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected by Novel Coronavirus to Support Enterprises to Resume Work and Production" and February 22, 2022 "Answers to Questions on Labor Employment, Labor Relations, Wages, Wages, Social Security, Social Security, Social Security, Social Security, Social Security, Social Security, Social Security, Social Security and the issue of wages is regulated. That is, during the delayed resumption of work or non-return to work affected by the epidemic, the enterprise may consult with the employees in accordance with the relevant provisions of the State on the payment of wages during the shutdown and shutdown, and pay wages in accordance with the standards stipulated in the labor contract within a wage payment cycle, and pay living expenses in accordance with the relevant provisions if more than one wage payment cycle. Whether the remuneration for work includes bonuses and subsidies depends on the specific circumstances. If the monthly payment is fixed, it shall not fluctuate due to the attendance or work performance of the worker, and shall be paid as a fixed wage composition. If the employee is reimbursed according to the actual bill or some welfare treatment decided by the enterprise, it may not be paid. If there are special agreements or provisions in the labor contract or the rules and regulations of the enterprise, the agreements or provisions shall be followed as long as they do not violate the provisions of the law. So the decline in business efficiency, can reduce the wage standard? The "Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations during the Prevention and Control of the New Coronavirus Infected Pneumonia Epidemic" (Human Resources and Social Security Department Mingdian [2020] No. 5) stipulates: "If an enterprise has difficulties in production and operation due to the impact of the epidemic, it can adopt methods such as salary adjustment, job rotation, and shortening working hours through consultation with employees, and try not to lay off or reduce layoffs." At the same time, you can refer to the provisions of a city: "In the special period of epidemic prevention and control, to ensure the orderly resumption of work and production of employers to resume the market, as far as possible to reduce the pressure on the production and operation of employers, stabilize the jobs of workers and ensure employment, is the primary task at present. For the employer in accordance with legal procedures through democratic consultation with the workers' congress, trade unions, staff representatives on the transfer of wages, delay in the payment of wages, rotation of jobs, work stoppage and other matters to reach an agreement, and the opinion is fair and reasonable, only applicable during the epidemic period, can be used as a basis for adjudication." In other words, you can negotiate a salary reduction and delay payment, but you need to pay attention to the legality of the procedure. It should be noted that, according to the announcement issued by the Ministry of Finance and the General Administration of Taxation and the provisions of the Labor Contract Law, during the prevention and control of the epidemic, the unit to provide or issue to employees masks, medical supplies, killing supplies, etc., can not be included in wages, salary income, nor because the efficiency of the enterprise is affected by the payment of in-kind instead of wages. Special provisions for workers are that temporary work subsidies and bonuses obtained by medical personnel and epidemic prevention workers are exempt from personal income tax. 2. leave arrangements According to the Ministry of Human Resources and Social Security and the Supreme People's Court issued the "Notice on the Joint Release of the First Batch of Typical Cases of Labor and Personnel Disputes", "Measures for the Implementation of Paid Annual Leave for Enterprise Employees", and the Ministry of Human Resources and Social Security issued [2020] No. 8 "Opinions on Stabilizing Labor Relations to Support Enterprises to Resuming Work and Resumption of Production during the Prevention and Control of Novel Coronavirus Infection Pneumonia Epidemic, negotiate with employees to give priority to the use of paid annual leave, enterprise-owned welfare leave and other types of leave. Enterprises can give priority to the use of paid annual leave, enterprise-owned welfare leave and other types of leave to minimize the loss of business operations and workers' income from the new coronary pneumonia epidemic. When arranging for workers to give priority to the use of paid annual leave during the period of delaying the resumption of work and production, the enterprise should try its best to consider the actual situation of the workers and perform the negotiation procedures in accordance with the law, but there is no requirement that "consensus must be reached through consultation", regardless of whether the workers agree or not, the enterprise can make overall arrangements for paid annual leave after performing the negotiation procedures, but pay paid annual leave wages in accordance with the law. When employees in the closed and controlled areas are unable to work normally, employees can be allowed to take unpaid personal leave upon mutual agreement or upon application by employees. Workers should accurately understand the laws and policies, and actively accept the employer arrangements. Therefore, during the prevention and control of the new coronavirus epidemic, in order to actively respond to the national call, strengthen the prevention and control of the pneumonia epidemic of the new coronavirus infection, effectively reduce the gathering of personnel, block the spread of the epidemic, and better protect the life safety and health of employees, employees can be arranged to take annual leave or unpaid personal leave according to the specific production and work conditions of the unit and comprehensively consider the wishes of the employees. 3. Contract Management 1. Signing of contract For new employees who have already issued an offer but are affected by the epidemic, the enterprise can withdraw the change of the entry time and resend it before the offer is delivered. If the offer has been delivered to the candidate and the candidate has confirmed it, the enterprise cannot change it at will. However, if the epidemic control enterprise is in a shutdown, shutdown state and other objective reasons can not handle the entry in a timely manner, constitute a legal force majeure, the enterprise can ask the candidate to postpone the entry, it is recommended that the enterprise and the candidate friendly consultation, to avoid disputes. If the written labor contract cannot be signed or renewed in time due to the impact of the epidemic, it is recommended to negotiate with the laborer and conclude the written labor contract in electronic form, but it should meet the requirements of the electronic signature law and other legal provisions, or sign it by video, save relevant videos or evidence, and sign it in time after the factors affecting the epidemic are eliminated. 2. Rescission of contract Many enterprises are facing operational difficulties due to the impact of the epidemic, but want to terminate the labor contract with employees in accordance with the provisions of Article 40, Item (III) of the Labor Contract Law, but it should be noted that the requirements of this clause are more stringent and need to meet the conditions before it can be applied. For example, the enterprise is required to have major changes in the objective conditions on which the labor contract is concluded due to the epidemic, such as force majeure caused by the epidemic or shutdown of the enterprise due to policy influence, etc., and there is a causal relationship between the changes and the inability to continue to perform the labor contract, resulting in the inability to perform all or major terms of the labor contract, or the continued performance will cause great damage to the interests of the enterprise, seriously unfair, etc. In terms of procedures, the company and its employees are required to conduct honest and friendly negotiations on changing the content of the labor contract. The company has made efforts to continue the performance of the labor contract, but the two parties have not yet reached an agreement. The company has fulfilled the notification procedure one month in advance or paid one month. The salary is used as a payment, and the economic compensation is paid in accordance with the law, and the labor union is notified. So, if the employee is diagnosed or infected, can the labor contract be terminated? If an employee is diagnosed or infected with new coronary pneumonia, the unit may not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of the Labor Contract Law, but it is not absolutely impossible to dismiss the employee. If the employee's labor contract expires during the isolation period, the enterprise cannot terminate the contract on the grounds of the expiration of the contract, but waits for the labor contract to automatically extend to the expiration of the employee's medical treatment period, the expiration of the medical observation period, the expiration of the isolation period or the end of the emergency measures taken by the government. So can companies make layoffs? In accordance with the provisions of the Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected with Novel Coronavirus, pneumonia patients, suspected patients, and close contacts infected with novel coronavirus are treated in isolation. During the period or medical observation, as well as enterprise employees who cannot provide normal labor due to the government's implementation of isolation measures or other emergency measures, economic layoffs cannot be used. Relevant laws and regulations have strict requirements on the entity and procedure of economic layoffs. Specific personnel shall not be dismissed, specific personnel shall be recruited first, legal procedures such as listening to the opinions of trade unions or employees and reporting to the labor administrative department shall be performed, and there is no clear standard for the extent to which enterprises can be identified as serious difficulties in production and operation. Therefore, under the current circumstances, even if enterprises need to lay off employees due to epidemic conditions, careful consideration should be given to the manner of release and professional lawyers should be hired to develop a layoff plan. Suspension of 4. aging The Notice of the General Office of the Ministry of Human Resources and Social Security on the Proper Handling of Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected by the New Coronavirus stipulates: "If the parties are unable to apply for labor and personnel dispute arbitration during the statutory arbitration limitation period due to the impact of the epidemic, the arbitration limitation period shall be suspended. The period of limitation for arbitration shall continue to be calculated from the date when the cause for suspension of the limitation period is eliminated. If it is difficult for a labor and personnel dispute arbitration institution to hear a case within the statutory time limit due to the impact of the epidemic, the hearing period may be extended accordingly." The (I) of Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Proper Trial of Civil Cases Involving the New Coronary Pneumonia Epidemic in accordance with the Law stipulates: ...... (VI) suspend the statute of limitations in accordance with the law. During the last six months of the statute of limitations period, if the right holder cannot exercise the right of claim due to the epidemic or epidemic prevention and control measures, the people's court shall support the suspension of the statute of limitations in accordance with the first paragraph of Article 194 of the General Principles of Civil Law. The period of the proceedings (VII) be postponed in accordance with the law. If the time limit for litigation prescribed by law or designated by the people's court is delayed due to an epidemic or epidemic prevention and control measures, and the parties apply for an extension of the time limit in accordance with Article 83 of the Civil Procedure Law, the people's court shall consider whether to grant it in accordance with the epidemic situation and the evidence provided by the parties, and protect the litigation rights of the parties in accordance with the law. If the parties concerned are diagnosed with new coronary pneumonia, suspected new coronary pneumonia, asymptomatic infected persons and related close contacts, and the time limit for litigation expires during the period of isolation in accordance with the law, the people's court shall grant permission to apply for an extension of the time limit in accordance with the provisions of this article. It is recommended that enterprises should pay attention to the local government's policy of control and closure during the outbreak and retain relevant documents so that they can be used to prove the existence of a suspension of arbitration/statute of limitations. In summary, due to the epidemic caused by the employer's production and operation difficulties, the employer can guide the workers through consultation, the use of priority arrangements for annual leave, adjustment of wages, deferred wages, rotation, shortening of working hours, suspension of production and other ways of flexible handling, stable employment relations, the necessary layoffs or termination, pay attention to procedural compliance. Enterprise HR should pay attention to the retention of relevant control and closure policy documents during the outbreak to prove that there is a time limit for suspension.
2022-05-07
07
2022-05
Building Materials Perspective | Quality Objection Period for Defects in Custom Glass
Introduction As an important part of the building materials industry, glass has played an important role in real estate, automobiles, solar appliances and other fields. The glass industry related to the upstream and downstream industry chain is long, involving many subjects, complex trading patterns, and prone to disputes. Through the statistics of glass enterprises related cases in recent years, we observe that the legal disputes faced by glass enterprises mainly focus on contract and quasi-contract disputes, labor and personnel disputes, tort liability disputes and so on. Among them, under contract disputes, sales contract disputes, loan contract disputes, contract disputes, construction contract disputes, lease contract disputes are common types of disputes. In terms of the geographical distribution of cases, the number of legal disputes related to glass enterprises in Shandong Province ranks second in the country. On the one hand, the number of glass enterprises in Shandong is in the forefront of the country. On the other hand, it also reflects that some glass enterprises need to pay attention to the prevention, control and response of legal risks. Sales is an important part of glass enterprises, in the process of glass sales "custom glass" is often signed in the form of contract. A contract of contract is a contract in which the contractor completes the work in accordance with the requirements of the contractor, delivers the results of the work, and is paid by the contractor. In a contract of work, the party who completes the work as agreed is called the contractor and the counterparty is called the fixer. The most common risk of disputes in glass customization contracts is the quality of customized glass. The common situation is that the fixer refuses to pay the amount payable by the glass company or requests to terminate the contract on the grounds that the product has quality problems, while the glass company, as the contractor, thinks that the fixer has already met the payment conditions and should pay the price according to the contract. The above differences are easy to cause litigation. This paper will combine the relevant laws and regulations and cases to analyze the quality objection period and the conditions for the termination of the contract that the contractor unilaterally believes that the work results delivered by the contractor have quality defects. Referee's point of view Case 1:(2021) Yu 03 Min Zhong No. 533 [Case Introduction] China X Da Decoration Engineering Group Co., Ltd. (hereinafter referred to as "Decoration Company") is the ordering party and North X Glass Technology Co., Ltd. (hereinafter referred to as "Glass Company") is the contractor to sign two "Processing Glass Orders Contract", which stipulates that the glass company orders the glass according to the requirements of the decoration company. The contract stipulates the provisional total price and settlement method. In addition, article 7 of the contract stipulates that if the ordering party considers that the variety, configuration, specification, quantity and quality of the glass are inconsistent with the contract, it shall submit a written objection to the contractor within 15 days after receiving the glass, otherwise, the glass shall be deemed to conform to the contract; if the ordering party has used the glass, it shall also be deemed to be qualified. Article 8 stipulates that when installing and using glass, the ordering party shall first inspect the variety, configuration, specification processing requirements and surface quality of the glass, otherwise, the contractor shall not compensate for the losses caused. The two sides also agreed on quality and acceptance standards and other terms. After the contract was signed, the glass company fulfilled its contractual delivery obligations and issued a special VAT invoice to the decoration company. The decoration company paid a total of 1.04 million yuan to the glass company, but it still owes 269000 yuan. Due to the decoration company's delay in fulfilling its payment obligations, the glass company sued the court for the decoration company to pay the glass, and the decoration company argued in the lawsuit that the glass had quality problems and refused to pay. [The court held that] the contract signed by both parties is legal and valid, and both parties shall perform their respective obligations in accordance with the contract. In this case, the glass company has delivered the ordered glass to the decoration company in accordance with the contract. The decoration company argued that the reason for its refusal to pay the remaining amount was that the glass delivered by the glass company was delayed and had quality problems. First of all, the two parties clearly agreed in the contract that the ordering party believes that the variety, configuration, specification, quantity and quality of the glass do not conform to the contract, it shall submit a written objection to the contractor within 15 days after receiving the glass, otherwise, the glass shall be deemed to conform to the contract. If the ordering party has already used glass, the glass is also deemed to be qualified, but the decoration company has not provided sufficient evidence to prove that it has sent written materials to the glass company within the objection period agreed in the contract. Secondly, it has been more than four years since the glass company delivered the glass. After the glass company sued, the decoration company argued and counterclaimed that the delivery of the goods was delayed and there were quality problems, which was obviously inconsistent with market trading habits. Even from the time when the decoration company last raised questions about the quality of the glass involved in the case, its claim obviously exceeded the statute of limitations, so its application for appraisal of the quality of the glass involved in the case was not allowed. Combined with the fact that the decoration company has fulfilled its obligation to pay nearly 80% of the total amount of the two fixed contracts, it will not accept the above-mentioned reasons for refusing to pay the remaining amount. The second instance of this case upheld the original verdict. Case 2:(2021) E 09 Min Zhong No. 2963 [Case Introduction] X Special FRP Company (hereinafter referred to as "FRP Company") and X Xiang Chemical Company (hereinafter referred to as "Chemical Company") have signed one FRP processing contract and one technical agreement each. Among them, the glass fiber reinforced plastic processing is stipulated in the contract: 6. quality assurance: the contractor guarantees that the service life of the equipment is 20 years, and that the equipment provided to the employer has not been used. under the conditions of correct installation, normal use and maintenance, the quality warranty period of the main equipment is 3 years. if there is any quality problem in the main equipment within 3 years, the contractor shall repair or replace the corresponding parts free of charge, the maintenance or replacement of the equipment corresponding extension of the quality assurance period, if the maintenance still does not meet the requirements of the demand side, the contractor shall pay the contractor according to the contract value of the purchased equipment... Since then, the two sides have signed a processing contract and supplementary agreement, installation contract, etc. After FRP completed the installation of FRP storage tanks, the chemical company refused to pay the remaining amount and demanded a refund on the grounds of leakage. After that, FRP sued the court for compensation for processing. [The court held that] the existing quality problems of the glass fiber reinforced plastic storage tank involved in the case could not lead to the termination of part of the contract between the two parties. Once a contract is established, it shall have legal effect, and the parties shall perform their obligations in accordance with the agreement and shall not modify or terminate the contract without authorization. In this case, the liability for breach of contract in the Processing Contract stipulates that if the equipment provided by the contractor does not meet the quality requirements (specifications, quality, performance) stipulated in the contract, the contractor shall repair according to the requirements of the contractor, and return the goods after the repair still fails to meet the requirements....... From the above agreement, if the equipment provided by the glass steel company does not meet the quality requirements agreed in the contract, it should first be repaired according to the requirements of the chemical company, and then returned if the repair still fails to meet the requirements. Regarding the quality problems of the storage tanks involved in the case, from the content of the FRP company's reply on April 1, 2019, the problems raised by the chemical company have been rectified. By the time Glass Steel filed its lawsuit in October 2019, there was no evidence that Chemical had raised a quality objection to Glass Steel. In the litigation of this case, it was identified that some storage tanks had quality problems. According to the contract, maintenance should be carried out first, and the goods should be returned after the maintenance still failed to meet the requirements. Now the chemical company has not submitted evidence to prove the fact that the quality problems of the storage tanks cannot be solved through maintenance. Moreover, in the second instance, the chemical company stated that 10 storage tanks involved in the case are still in use, so it is not enough to prevent the contract purpose, the reasons for the chemical company's request to terminate part of the contract cannot be established, and its litigation request has no factual basis and legal basis, and this court will not support it. If the tank involved in the case is repaired and there are still serious quality problems, the chemical company may sue separately to claim its rights. Lawyer Law Review From the above cases, we can infer that the common view of the court is that in the contract for the quality of the disagreement period is agreed to be subject to the contractual agreement, in addition to the actual time of use of the fixer and whether it has been repaired and other circumstances comprehensive judgment. However, if there is no clear agreement in the contract on how the quality objection period should be determined, there is still some controversy. One way of thinking is that the current Civil Code and judicial interpretation of the contract for the contractor to raise quality objections is not clearly defined, so it can be compared to the general statute of limitations period as the period of objection. According to the relevant provisions of Article 780 of the Civil Code on the delivery and acceptance of the contract, and with reference to the provisions of Article 188 of the Civil Code on the limitation of action period, the contractor has the right to raise objections to the quality defects of the delivered products within 3 years after the completion of the contract, and the contractor is also obliged to bear the liability for defect guarantee for the quality of the fixed crops within 3 years. Another way of thinking is to refer the contract of contract to the provisions of the quality objection period of the contract of sale. In accordance with Article 780 of the Civil Code, the fixer has a legal obligation to accept the results of the work. That is to say, when accepting the results of the work, if the obvious quality defects found by the naked eye or existing technical means can be inspected by certain national or industry standards, they should raise objections in time. For hidden defects, that is, those that cannot or are not easy to find during acceptance and can only be found in subsequent use, objections should also be raised in time. If the objection is not raised in time, the quality may be presumed to be qualified and the fixer shall pay the price as agreed in the contract. For the limit of the longest quality objection period of the contract, reference may be made to Article 621 of the Civil Code, "If the parties agree on an inspection period, the buyer shall notify the seller of the fact that the quantity or quality of the subject matter does not conform to the agreement within the inspection period. If the buyer fails to give notice, the quantity or quality of the subject matter shall be deemed to be in conformity with the agreement. If the parties have not agreed on an inspection period, the buyer shall notify the seller within a reasonable period of time after discovering or should have discovered that the quantity or quality of the subject matter does not conform to the agreement. If the buyer fails to notify the seller within a reasonable period of time or within two years from the date of receipt of the subject matter, the quantity or quality of the subject matter shall be deemed to be in accordance with the agreement; however, if there is a quality assurance period for the subject matter, the quality assurance period shall apply, and the two-year provisions shall not apply. If the seller knows or should know that the subject matter provided does not conform to the agreement, the buyer is not subject to the notice time limit stipulated in the preceding two paragraphs." By reference to the maximum period specified under the contract of sale, it may also be presumed that the period of quality objection to the contract of contract is set at 2 years. That is, within 2 years, regardless of whether the fixed crop quality defects are found by the fixer, as long as no objection is raised to the contractor, the approved quality is deemed to be qualified. If the quality objection period is exceeded, the author shall not have the right to refuse payment or request the termination of the contract on the basis of quality problems. In short, legal disputes over the period of objection to glass quality defects should comprehensively consider the nature of the transaction, the purpose of the transaction, the way of the transaction, the way of the transaction, the type, quantity, nature, installation and use of the subject matter, the nature of the defect, the reasonable duty of care, the inspection method and the degree of difficulty, the specific environment, their own skills and other reasonable factors, based on the principle of good faith to judge. In addition, it is necessary to request the glass enterprise as the contractor to make clear and specific the agreement on the quality clause in the processing contract business. If the quality is not clear or only through oral agreement, once both parties have disputes, they will hold their own opinions on the quality standard. If the quality is subject to the sample, attention should be paid to sealing the sample and describing the sample in writing to avoid quality disputes due to the loss or natural damage of the sample. This epidemic is in danger of organic, enterprises now practice good internal work waiting for the flowers to bloom. Many building materials and other processing and manufacturing enterprises, including glass companies, in addition to strictly controlling product quality as always, should also firmly establish the awareness of risk prevention and control and the awareness of the chain of evidence, and give full play to the important role of the law in the whole process of enterprise management and transactions, so as to effectively avoid risks and escort the rapid development of enterprises after the epidemic.
2022-05-07
06
2022-05
1. Introduction With the advancement of urbanization and the increasing number of high-rise buildings, tragedies caused by high-altitude parabolic incidents have occurred frequently in recent years. In order to protect the safety of people's heads, the Civil Code, which came into effect on January 1, 2020, clearly stipulates the liability rules for high-altitude throwing objects. In October 2021, the author personally experienced a high-altitude throwing incident, and the author's family almost suffered irreparable injuries. In the process of dealing with the incident, the author also thought more about the legal provisions of Article 1254 of the Civil Code on high-altitude throwing infringement. 2. legal provisions Article 1254 of the the People's Republic of China Civil Code [Liability for Damage Caused by Throwing Objects from High Altitude and Falling Objects] prohibits throwing objects from buildings. If an article is thrown from a building or an article falling from a building causes damage to others, the infringer shall bear the tort liability in accordance with the law; if it is difficult to determine the specific infringer after investigation, unless it can be proved that he is not the infringer, the user of the building who may cause the harm shall give compensation. The user of the building who may have caused the damage shall have the right to recover the compensation from the infringer. Building managers such as property service enterprises shall take necessary safety measures to prevent the occurrence of the circumstances specified in the preceding paragraph; if they fail to take necessary safety measures, they shall bear tort liability for failure to perform their safety guarantee obligations in accordance with the law. In the event of the occurrence of the circumstances specified in the first paragraph of this article, the public security and other organs shall promptly investigate and identify the responsible persons in accordance with the law. Interpretation of 3. legal provisions Article 1254 of the Civil Code is divided into three paragraphs on the liability for damage caused by high-altitude throwing (falling) objects, and clarifies the liability of the subject of high-altitude parabolic tort liability. This is not only conducive to determining the actual infringer, urging the manager to fulfill the obligation of safety and security, but also conducive to fully mobilizing all social forces to participate in the comprehensive management of high-altitude parabolic infringement. The provisions of the Civil Code on the liability for damage caused by objects thrown (falling) from high altitude have the following characteristics: 1, with prohibitive provisions to clarify the illegality of high-altitude parabolic behavior. Article 1254 of the Civil Code has a clear attitude towards the infringement of high-altitude throwing objects. By setting prohibitions, it clarifies the public's code of conduct for civil activities and prohibits people from throwing objects from buildings. At the same time, this article publicly defines the behavior that was only considered uncivilized in the minds of the general public as an illegal act, and establishes a bottom line and norms for those who have weak public safety awareness and relatively lack of legal awareness, through the use of mandatory legal authority to prevent and reduce the occurrence of high-altitude parabolic behavior. 2. It is a general rule that the actual infringer shall bear the tort liability according to law. The high-altitude parabolic actor is usually intentional subjectively, and there are usually cases where the owner, manager and user of the object fail to fulfill their management and maintenance obligations, so the tortfeasor is subjectively liable. This provision clarifies for the first time the general rule that the actual infringer should bear tort liability in accordance with the law. Compared with the previous direct provision that when it is difficult to determine the infringer, the compensation should be given by the user of the building who may cause harm, the content clearly defines "who is responsible", prevents the situation that the residents of the whole building need to "sit together" as long as the incident of throwing objects from high altitude occurs, and establishes the correct value orientation. 3, may cause damage to the building user to give compensation as an exception, and give the building user may cause damage to the right to recover. The user of the building who may cause harm is no longer the responsibility of "sitting together", but only a kind of compensation in the nature of advance payment, which not only protects the legitimate rights and interests of the victims, but also pays attention to safeguarding the legitimate rights and interests of the building users. Through the inversion of the burden of proof, as far as possible to narrow the scope of the actual tort responsible person, guide and encourage to actively find the direct infringer. If the possible perpetrator fulfills the liability of compensation, once the actual infringer is found, he can recover from the actual infringer. This provision balances the interests of the obligor of compensation as much as possible by giving the right of recourse to the user of the building who may cause harm. 4, stressed the property and building managers of the prevention and management of security responsibilities. According to the law and the contract signed with the owner, the property has the corresponding security obligation in the property service area. If the obligation is not fulfilled, it is only the liability for breach of contract. In this article, if the property and building managers fail to take safety measures to prevent "throwing objects from high altitude", they will be investigated for tort liability for failing to perform their security obligations in accordance with the law. On the one hand, it can urge the property to strengthen the daily supervision and take effective measures to prevent the occurrence of high-altitude parabolic infringement. On the other hand, it can also promote the property to actively participate in the search for actors after the occurrence of high-altitude parabolic infringement, so as to improve the possibility of finding the actual infringer. Compared with ordinary owners, properties play a very important role in preventing and detecting high-altitude throwing incidents, such as installing upward monitoring on the outer walls of the community, and publicizing the hazards of high-altitude throwing by setting up warning signs, billboards, leaflets, etc. After high-altitude throwing incidents occur, monitoring or investigation is used to help increase the possibility of identifying the actual infringer, which can reduce the occurrence of high-altitude throwing incidents. 5, strengthen the investigation of the actual infringer, clear the public security and other organs of the investigation responsibility. The victims of high-altitude parabolic civil cases often find it difficult to find the actual infringer because they do not have sufficient investigation capabilities or because the investigation cost is too high. Therefore, in previous cases, the victims have chosen to directly sue the building users who may cause harm. As a result, a large number of actual infringers evade their responsibilities, and finally they can only be compensated by the building users who may cause harm. Now, the investigation responsibilities of public security and other organs are clarified in the form stipulated in the Civil Code, and the public security organs are urged to actively perform their duties, file a case for investigation in a timely manner after the occurrence of a high-altitude throwing case, and through the use of professional investigation techniques and methods, these are conducive to the investigation of the case, protect the legitimate rights and interests of the victims, and reduce or even avoid the application of "compensation for building users who may harm, it also provides the necessary preconditions for the exercise of the right of subsequent recovery. 4. epilogue Although there are "laws to follow" for high-altitude parabolic cases after the promulgation and implementation of the Civil Code, in the actual handling of high-altitude parabolic cases, there are still difficulties in obtaining evidence and safeguarding rights. The author has also experienced the situation of property prevarication and inaction, the public security organs do not pay attention to it, and in the end, we can only wait for a truth when serious consequences such as serious injury or death occur. Therefore, the author believes that in order to truly realize "guarding the safety above the head", it is not only necessary for every citizen to continuously improve their own public moral level and concept of the rule of law, but also for the property, public security and other departments to really pay attention to such incidents and perform their duties in accordance with the law.
2022-05-06
04
2022-05
对于夫妻一方擅自处分夫妻共同财产的法律后果如何？要回答这个问题，就需要厘清夫妻共同财产的共有形式，还需要区别处分夫妻共同财产的目的，也不能忽视处分夫妻共同财产的方式。笔者列举以下3个案例，加以对照分析。 案例1：未经妻子同意，丈夫赠与他人钱款、贵重物品，因违反公平原则而属无效 甲男与乙女系夫妻关系，于2010年登记结婚。丙女系甲男前妻，二人生育一子丁男，丁男由丙女抚养。在甲男与乙女结婚后，甲男得知前妻丙女生活拮据，丁男马上大学毕业，面临就业结婚。甲男出于对儿子丁男生活的照顾，2020年6月1日通过自己银行账户向丙女转款50万元，用于丙女为儿子丁男购买商品房交纳的首付款，商品房登记在丙女、丁男名下。2021年5月，甲男因病去世，在处理甲男遗物时，乙女发现甲男存折中记录的汇款行为，欲诉至法院起诉丙女和丁男，要求共同返还该50万元。乙女的诉请能否得到法院支持呢？ 律师意见 第一、夫妻双方未约定夫妻共同财产系按份共有，应属于夫妻共同共有，除具备法定分割情形外，夫妻任何一方不得主张各自对共同财产享有一半的处分权。 根据《婚姻法》、《最高级人民法院关于适用<中华人民共和国民法典>Several provisions of the effect of time, the joint property of husband and wife is based on the provisions of the law, due to the existence of the relationship between husband and wife. In cases where the spouses do not choose another property system, the spouses share the common property in common, rather than in shares. According to the general principle of common ownership, during the existence of the marriage relationship, the common property of the husband and wife shall be regarded as an indivisible whole, and the husband and wife shall have joint ownership of all the common property without any share, and the parties cannot divide their personal share of the common property. The equal right of husband and wife to dispose of the common property does not mean that each husband and wife has a half share of the common property. Only at the end of the common relationship can the common property be divided and their respective shares determined. Second, both spouses have the right to dispose of common property on an equal footing, but care should be taken to distinguish between "daily needs" situations. During the existence of the marriage relationship, both husband and wife have equal rights to the common property. If the common property is disposed of due to the needs of daily life, either party has the right to make a decision. If an important decision is not made on the common property of the husband and wife due to the needs of daily life, the husband and wife Both parties shall negotiate on an equal footing and reach a consensus. To sum up: in this case, male student a remitted 500000 yuan from his bank account to female c without authorization. the money was used to buy a house for male ding. it was obviously not due to the daily needs of male and female a who gave the common property to others free of charge, which seriously damaged the property rights and interests of female B and violated the principle of fairness in the civil law. such donation should be invalid. Reference case:(2022) Lu 03 Min Zhong No. 665 Case 2: Without the consent of the wife, the husband's gift of money and valuables to others is invalid because it violates the principle of public order and good customs. Ms. He and Mr. Huang registered their marriage in 2019 and gave birth to a daughter after marriage. Ms. He took care of her family and daughter at home after marriage. Mr. Huang is working hard to start a business for his family and runs a trading company. The good thing is not long. In September 2021, Ms. He learned that Mr. Huang had maintained an improper relationship with the female employees of his company for a long time, and the female employees also gave birth to a daughter for Mr. Huang. Mr. Huang concealed Ms. He and remitted 300000 yuan to female employees on April 1, 2021. For this reason, Ms. He wants to sue the female employee and Mr. Huang, demanding confirmation that the gift is invalid and claiming that the female employee should return the grant of 300000 yuan. Can Ms. He's claim be supported by the court? Advice from counsel First, the husband and wife have not agreed that the joint property of the husband and wife shall be shared by the husband and wife, except in the case of legal division, neither husband and wife shall claim half of the right to dispose of the joint property. Both spouses have equal rights to dispose of common property, but care should be taken to distinguish between "daily necessities. The reason is the same as before and will not be repeated. Second, civil subjects engaged in civil activities shall not violate public order and good customs. According to the "Civil Code", families should establish a good family style and promote family virtues. Husband and wife should be faithful to each other, respect each other, and care for each other. Civil subjects engaged in civil activities shall not violate the law, public order and good customs. To sum up: in this case, during the existence of the husband and wife relationship between Mr. Huang and Ms. he, and then maintain an improper relationship with female employees for a long time and give birth to an illegitimate daughter, Mr. he's behavior is contrary to public order, good customs and social morality. Mr. Huang's donation behavior based on the relationship between men and women that is not protected by law has seriously damaged Ms. He's legitimate rights and interests, which is fundamentally contrary to social morality and has no legal effect. Reference case:(2021) Lu 0105 Minchu No. 10102. Case 3: Without the consent of the wife, the husband transfers the property, vehicle and other valuables to another person, the validity of the transfer is "to be determined", and different situations should be distinguished, such as whether the third party obtained it in good faith and whether it colluded in bad faith. Ms. Li and Mr. Ning registered their marriage in 2006. After marriage, Ms. Li ran the company. After hard work, she achieved success in her career and had certain family savings. Two properties and two luxury private cars were purchased, and the couple registered a property and a private car under their names. Later, due to emotional discord, Mr. Ning filed for divorce from Ms. Li and claimed that the husband and wife's property should be divided by 50%. In response, Ms. Li believed that after marriage, she worked hard to accumulate the husband and wife's property and did not agree to split them in half. Mr. Ning then privately disposed of the real estate and vehicles under his name, transferred the real estate under his name to his sister, and sold the private car under his name to a third person, Mr. Yuan, through a second-hand car dealer. Afterwards, Ms. Li learned that Mr. Ning privately disposed of the husband and wife's property and sued to the court respectively, demanding that Mr. Ning's sister return the property and Mr. Yuan return the vehicle. Can Ms.'s claim be upheld by the court? Advice from counsel First, the husband and wife have not agreed that the joint property of the husband and wife shall be shared by the husband and wife, except in the case of legal division, neither husband and wife shall claim half of the right to dispose of the joint property. Both spouses have equal rights to dispose of common property, but care should be taken to distinguish between "daily necessities. The reason is the same as before and will not be repeated. Second, when one of the spouses is involved in the unauthorized transfer of the joint property of the husband and wife to a third person other than the husband and wife, the transfer shall be determined on the premise of whether the property transferee constitutes a good faith acquisition. Article 28 of the (I) for the Interpretation of Marriage and Family of the Civil Code stipulates that if one party sells a house jointly owned by the husband and wife without the consent of the other party, the third party buys in good faith, pays a reasonable consideration and has registered the real estate, and the other party claims to recover the house, the people's court will not support it. At the same time, the article also stipulates that if one of the spouses disposes of a jointly owned house without authorization and causes losses to the other party, and the other party requests compensation for losses during divorce, the people's court shall support it. Whether it is Article 106 of my country's previous "Property Law" and its judicial interpretation, or Article 311 of the "Civil Code" that is now in force, the system of "bona fide acquisition" is clearly set up. Good faith acquisition should be noted that: (a) the transferee must be in good faith. In practice, the standard of good faith is not uniform because of movable or immovable property. The Supreme Court's view is (1) for movable property, the standard of determination in practice, opinions, but the system of good faith transfer lies in the legislative purpose of taking into account the interests of all people and the security of the transaction, the transferee should bear a certain degree of duty of care as to whether the transferor has the right to transfer. Whether the assignee has fulfilled its duty of care should be judged on the basis of the specific circumstances and circumstances of the transaction. For example, the place of movable property transaction is in a public trading place, which should generally be considered as the buyer's duty of care. The assignee is grossly negligent and does not know that the transferor has no right to transfer is considered to be non-bona fide. (2) In the case of immovable property, the reliance of a third party on the registration of the immovable property should be used as a criterion for determining whether it constitutes a bona fide acquisition of the immovable property. (II) bona fide allocation of the burden of proof. To which side the burden of proof is assigned will likely affect the outcome of the referee. According to article 216 of the Civil Code, which expressly recognizes the presumptive effect of the register, in the case of immovable property, the burden of proof should, in principle, be borne by the spouse who denies that the third person is a bona fide person, and if it cannot prove that the acquisition was made in bad faith, the third person should be presumed to be in good faith. (III) the time node of the third person's goodwill state. From daily life, we can see that real estate transfer registration takes a certain amount of time and cannot be completed in an instant. On the issue of determining the time node of the third party's good faith, the Supreme People's Court held that it was more reasonable to set the time for determining whether the third party was in good faith to be recorded in the register. For the registration of the transfer of special movable property such as vehicles, it is clear that the transaction can be completed at the same time, so there is no need to emphasize the time node of the bona fide state of the third party. Third, when one of the spouses is involved in the unauthorized transfer of the joint property of the husband and wife to a third person other than the husband and wife, the transfer shall be transferred at a reasonable consideration to determine whether the transfer is valid. Reasonable price means that the price of the subject matter is basically equivalent to the value of the object, excluding unreasonable low price or free transfer. Care should be taken to grasp: (a) the premise of good faith acquisition is a paid transaction. Article 18 of the (I) for the Interpretation of Property Rights of the Civil Code of (II) provides for a "reasonable price", which should be determined in accordance with the nature of the subject matter of the transfer, the quantity and the method of payment, taking into account factors such as the market price of the place of transaction at the time of the transfer and the customs of the transaction. Therefore, the Supreme Court held that whether the consideration for the sale of the house is reasonable or not is presumed to be reasonable as long as both parties have completed the transfer registration, but one of the spouses can prove that the consideration is quite different from the price difference of similar houses in the market or that the judge is sufficient to judge the consideration according to the schedule life experience. Under special circumstances, you can also apply to the court for housing valuation to judge whether it is unreasonable. (III) reasonable consideration should have been actually paid. China's good faith acquisition system is both the function of the improper profit system, the Supreme Court view that the so-called consideration refers to the actual payment of the consideration. (IV) the seller and the buyer have registered the ownership of the real estate and the property right has been transferred. Fourth, when one of the spouses transfers the joint property of the husband and wife to a third person other than the husband and wife without authorization, the validity of the transfer shall be determined by the consent of one of the spouses. The Supreme Court held that consent within the legal framework is an expression of intent, which is reflected in daily life, when the other spouse agrees to the sale of the property and vehicles jointly owned by the husband and wife, which can be expressed in writing, orally, by telephone or electronic data. In this regard, the assignee of the property and the vehicle can prove it in the litigation. In the case where one of the spouses has not made a clear statement, in accordance with the provisions of Article 140 of the Civil Code, in view of the closeness of the relationship between husband and wife, if the other spouse has not clearly expressed his opinion on the sale of real estate and vehicles, but his behavior has indicated that he has agreed to the sale, he may directly be deemed to have implicitly agreed to the sale. Fifth, when one of the spouses transfers the joint property of the husband and wife to a third person other than the husband and wife without authorization, whether there is malicious collusion with the third party to determine whether the transfer is valid. According to the provisions of Article 154 of the Civil Code, the civil legal act of malicious collusion between the perpetrator and the counterpart to damage the legitimate rights and interests of others is invalid. If one of the spouses maliciously colludes with a third party to transfer the property and vehicle for the purpose of concealing, transferring, etc., which seriously damages the interests of the couple's common property, the other spouse has the right to claim that the transfer is invalid. To sum up: in this case, if Ms. Li claims that the third party should return the house and vehicle sold by Mr. Ning without authorization, she should prove that she did not agree with Mr. Ning to sell the house and vehicle, and her behavior does not show that she agreed to sell the house and vehicle. She should submit the house and vehicle transfer contract to prove whether the consideration is reasonable, and submit the real estate ownership and vehicle registration transfer procedures to prove whether the real right change has occurred, if necessary, apply for an assessment of the value of the house and vehicle to prove that the consideration is unreasonable, and apply to the court to obtain whether the third party has paid the consideration. Thus, the court can comprehensively determine the facts and decide whether the sale of houses and vehicles is invalid and whether the third party returns the houses and vehicles. Reference case:(2022) Yu 08 Min Zhong No. 866. (2021) Ning 0105 Minchu No. 5510</中华人民共和国民法典>
2022-05-04
01
2022-05
Affected by the new crown epidemic, many enterprises due to the epidemic caused by the production and operation and employee job status fluctuations, some enterprises may stop production. At the same time, in order to control the risk of the spread of the epidemic, most residential areas implement temporary control. After closed management, it is not allowed to leave the residential area and employees cannot work in the workplace. How should companies pay their salaries during this period? Let's first look at the relevant regulations of the Ministry of Human Resources and Social Security in 2020. On January 24, 2020, article 2 of the notice on properly handling labor relations during the prevention and control of pneumonia epidemic caused by novel coronavirus infection [2020] No. 5 stipulates: "if enterprises have difficulties in production and operation due to the impact of the epidemic, they can stabilize their jobs by adjusting salaries, rotating jobs and shortening working hours through consultation with employees, and try not to lay off or reduce layoffs as much as possible. Eligible enterprises can enjoy stable post subsidies according to regulations. If an enterprise stops production within a wage payment cycle, the enterprise shall pay the wages of the employees according to the standards stipulated in the labor contract. If more than one wage payment cycle is exceeded, if the employee provides normal labor, the wage paid by the enterprise to the employee shall not be lower than the local minimum wage standard. If the staff and workers fail to provide normal labor, the enterprise shall pay living expenses, and the standard of living expenses shall be implemented in accordance with the measures prescribed by the provinces, autonomous regions and municipalities directly under the Central Government." On February 7, 2020, the Ministry of Human and Social Affairs issued [2020] No. 8, "Opinions on Stabilizing Labor Relations during the Prevention and Control of the New Coronavirus Infection Pneumonia Epidemic to Support Enterprises to Resuming Work and Resuming Production", Article 2, paragraph (I): "Encourage consultation to resolve the employment problem before the resumption of work. If the employees cannot arrive on schedule or the enterprise cannot start production due to the epidemic situation, the enterprise shall be guided to actively communicate with the employees. If conditions permit, the enterprise may arrange the employees to work at home to complete the work tasks through flexible working methods such as telephone and network. For enterprises that do not have telecommuting conditions, they shall negotiate with the employees to give priority to the use of paid annual leave, enterprise-set welfare leave and other types of leave. The trade unions of enterprises should be guided to actively mobilize workers and enterprises in the same boat, and on the basis of taking into account the legitimate rights and interests of both enterprises and workers, to help enterprises minimize the losses caused by the epidemic." On February 22, 2022, the Ministry of Human Resources and Social Security issued the "Questions and Answers on Labor Employment, Labor Relations, Wages and Social Security Contributions in Resuming Work and Production", in which Question 13: "How should wages and benefits be paid during the period of delayed resumption of work or not returning to work be paid?" answer: "During the delayed return to work or non-return to work affected by the epidemic, for employees who cannot provide normal labor or other employees who cannot provide normal labor after using all kinds of vacations, the enterprise can consult with the employees according to the relevant provisions of the state on wage payment during shutdown and shutdown. If the wage payment cycle is within one wage payment cycle, the wage will be paid according to the standards stipulated in the labor contract, and if the wage payment cycle exceeds one, the living expenses will be paid according to the relevant provisions." In accordance with the above-mentioned provisions and the relevant provisions of the Labor Contract Law, and in conjunction with judicial precedents, enterprises are given the following guidance on the payment of wages during the prevention and control of the epidemic. If a 1. enterprise has operational difficulties due to the impact of the epidemic and stops production within a wage payment cycle, it shall pay the wages of its employees in accordance with the standards stipulated in the labor contract. How to understand "within a salary payment cycle"? For example, if an enterprise starts to stop operating on April 28, it will be a salary payment cycle until May 27, instead of calculating according to the salary payment time of the enterprise. During this period, the enterprise shall still pay the wages of the employees in accordance with the standards stipulated in the labor contract. After May 28 for more than one pay cycle. 2. an enterprise has operational difficulties due to the impact of the epidemic and exceeds one wage payment cycle, if the employee provides labor, the wage paid by the enterprise to the employee shall not be lower than the local minimum wage; if the labor is not provided, the enterprise shall pay living expenses. When an enterprise exceeds a wage payment cycle due to business difficulties, the enterprise shall distinguish whether the employee has provided labor. If the employees provide labor, the enterprise may pay wages according to the new standard agreed by both parties, but it shall not be lower than the local minimum wage standard. Regarding whether the "local minimum wage standard" includes "five insurances and one fund", the regulations vary from region to region. Provinces and cities that do not include "social insurance and house fund" include Beijing, Shanghai, Anhui, etc.; provinces and cities that include "social insurance and house fund" include Shandong, Tianjin, Wuhan, etc.; and those that include social security but do not include provident funds, such as Jiangsu, Hunan, etc., the specific standards should be implemented in accordance with the regulations of the location of the enterprise. If the employee does not provide labor, the enterprise shall pay living expenses. With regard to the standard of living expenses, at present, the standard of living expenses in Beijing, Shandong, Sichuan, Chongqing and other places is not less than 70% of the local minimum wage; the standard of living expenses in Jiangsu, Zhejiang, Henan and other places is not less than 80% of the local minimum wage, and so on, which should be implemented in accordance with the measures prescribed by the province, autonomous region and municipality directly under the Central Government where the enterprise is located. 3. the office or the employee's residence is closed due to the epidemic, and the employee cannot enter the unit to work, how will the salary be paid? 1. If the employee cannot enter the unit to work due to the closure of the office or the employee's residence, if the company has the conditions for telecommuting, the company can arrange for the employee to telecommut through the telephone, the Internet, etc. During this period, the company should pay wages normally. 2. For enterprises that do not have the conditions for telecommuting, they can negotiate with their employees to give priority to the use of paid annual leave, adjusted leave, enterprise-set welfare leave and other types of leave. 3. For employees who still cannot provide normal labor or other employees who cannot provide normal labor after using all kinds of vacations, the enterprise can refer to the relevant provisions of the state on wage payment during the shutdown and shutdown period to negotiate with the employees. Wages are paid according to the standards stipulated in the labor contract, and living expenses are paid according to relevant regulations if the wage payment cycle exceeds one wage payment cycle. 4. For employees with telecommuting conditions, but the actual workload is significantly reduced compared with before, the enterprise can adjust the post and salary after consultation with the employees. The "consultation with employees" mentioned above many times is the democratic procedure, and the legal basis is Article 4 of the Labor Contract Law: "When the employer formulates, revises or decides on rules and regulations or important matters directly related to the immediate interests of employees, such as labor remuneration, working hours, rest and vacation, etc., it shall be discussed by the workers' congress or all employees, put forward proposals and opinions, and negotiate with the trade union or employee representatives on an equal footing; the employing unit shall publicize the rules and regulations and decisions on major matters directly related to the vital interests of the workers, or inform the workers." According to the above provisions, if an enterprise intends to make changes to matters involving the vital interests of employees, the changes shall be discussed and approved by the employee representative assembly or all employees. The form of the meeting can be online meeting, WeChat and other methods. The enterprise should truthfully explain the current situation of the enterprise's production and operation to the employees, and inform the employees of the rest and vacation plan, the job adjustment and salary adjustment plan or the decision to stop work and production, which can be implemented after the employees' discussion and approval. It should be noted that more than 2/3 employee representatives must participate in the convening of the employee representative assembly, and the plan must be approved by more than half of all employee representatives (not participating employee representatives) before it can be implemented. After the meeting, the enterprise shall also publicize or inform the employees through e-mail, OA system, wechat, etc., so as to be deemed to have fulfilled the notification procedure. At the same time, enterprises should pay attention to the retention of participants, meeting content, voting procedures and after the meeting to inform the staff or to the staff of the evidence.
2022-05-01
30
2022-04
Brief description of case Zhang Qingshan and Li Jing got married in 2010 and gave birth to a man and a woman together after marriage. At about 19:00 on April 27, 2021, Zhang Qingshan drank and drove a two-wheeled motorcycle without a license plate. The victims Jiang Moumou (female, 63 years old) and Chen Moumou (male, 42 years old) who were walking in the same direction on a certain road were injured by two mother and son. Jiang Moumou died after rescue. The public security organs determined that Zhang Qingshan bear full responsibility for the accident. The procuratorate believes that Zhang Qingshan's traffic accident caused by driving a vehicle in violation of traffic laws and regulations, resulting in one death and one injury, should be investigated for criminal responsibility for the crime of causing traffic accidents. The court was asked to sentence Zhang Qingshan to two years and six months in prison in accordance with the provisions of Article 133 and the third paragraph of Article 67 of the the People's Republic of China Criminal Law. The plaintiffs of the incidental civil action, Chen Mouwen and Chen Moumou, filed an incidental civil action with the court, requesting Zhang Qingshan to compensate Jiang Moumou for death compensation, funeral expenses, medical expenses and other economic losses totaling 970387.58 yuan. Chen Moumou filed an incidental civil lawsuit to the court, petitioning Zhang Qingshan to compensate for medical expenses, food subsidies, nursing expenses, lost work expenses, and transportation expenses, totaling 12193.75 yuan. The court held that Zhang Qingshan constituted a traffic accident crime and should be punished in accordance with the law and sentenced Zhang Qingshan to 2 years in prison. Zhang Qingshan was also sentenced to compensate the plaintiffs of the incidental civil action Chen Mouwen and Chen Moumou for medical expenses, death compensation, and funeral expenses, totaling 970387.58 yuan; Zhang Qingshan was sentenced to compensate the plaintiff of the incidental civil action Chen Moumou for medical expenses, food subsidies, Nursing expenses, lost work expenses, transportation expenses, a total of 12193.75 yuan. For this reason, Li Jing, Zhang Qingshan's spouse, wanted to keep more property and applied to the court for the division of the couple's common property. Can the consultation be supported? Lawyer's opinion First of all, according to the provisions of the the People's Republic of China Civil Code, the request for the division of the joint property of husband and wife should be a legal fact of divorce, or there are major reasons. Secondly, the material reason cannot be extended. The major reason is: one party has hidden, transferred, sold, destroyed, squandered the joint property of the husband and wife, or forged the joint debt of the husband and wife, etc., which seriously damages the interests of the joint property of the husband and wife, or when the person with the legal maintenance obligation suffers from a major illness and needs medical treatment, If he does not agree to pay the relevant medical expenses, he may propose to divide the joint property of the husband and wife within marriage. In other circumstances, the joint property of the husband and wife shall not be divided. Third, because in this case Li Jing is due to the spouse Zhang Qingshan crime need to pay compensation in the incidental civil action, Li Jing in order to retain more property, the application for the division of the joint property of the husband and wife, the application is not a major reason for the division of the joint property of the husband and wife within the marriage. Finally, when the people's court executes the judgment of incidental civil action, it will refer to the Supreme People's Court's "Several Provisions on the Partial Execution of Criminal Judgments Involving Property" to leave property for the family members of the person subject to execution that meets their basic living needs. Judicial Viewpoint of the Supreme People's Court If there is no agreed property system between husband and wife, the system of joint income after marriage is implemented, the most typical form of which is the common ownership of husband and wife. The request for division of the joint property of the husband and wife shall be "the loss of the common basis or there is a significant reason". For the husband and wife, the loss of the common basis should be the legal fact that divorce has occurred, and the reason for dividing the common property of the husband and wife without divorce is not valid. From the technical point of view of "legislation", after listing the above two "major reasons", the judicial interpretation does not have a general clause or adopt the word "etc", so as to give the applicable person flexibility according to the specific circumstances of the case. However, legislators mainly consider that the common property of husband and wife is the main economic basis for maintaining the family life of the marriage parties. Easily shaking this foundation will have a negative impact on the marriage and family life of the parties and the relationship between husband and wife. Therefore, in the case of no divorce, the division of the joint property of husband and wife through litigation is a very special case, and the scope of application shall not be expanded without authorization. When one of the spouses commits an intentional crime and needs to pay a huge amount of compensation in a criminal incidental civil action, the people's court shall not support the application for the division of the joint property of the husband and wife for the purpose of keeping more property for themselves, including their minor children. When executing a judgment in an incidental civil action, the people's court will not take the personal property of other family members of the person subject to execution as the subject of execution; if the joint property of husband and wife is executed, it will also leave property to the family members of the person subject to execution that meets their basic living needs. Legal provisions 1. Article 203 of the Civil Code stipulates that if the co-owners agree not to divide the shared real or movable property in order to maintain the common relationship, they shall follow the agreement, but if the co-owners have major reasons to need to divide, they may request division. If there is no agreement or the agreement is unclear, the co-owners may request division at any time, and the co-owners may request division when the basis of sharing is lost or there are major reasons for division. If the division causes damage to other co-owners, compensation shall be paid. 2. Article 1062 of China's Civil Code stipulates that the following property acquired by husband and wife during the marriage relationship shall be the joint property of husband and wife and shall be jointly owned by husband and wife: (I) wages, bonuses and remuneration for labor services; Income from (II) production, operation and investment; Proceeds from the (III) of intellectual property rights; Property inherited or donated by the (IV), except as provided in Item 3 of Article 1063 of this Law; (V) other property which shall be owned jointly. Husband and wife have equal rights to dispose of common property. 3. Article 1066 of the Civil Code stipulates that during the existence of the marriage relationship, under any of the following circumstances, one of the spouses may request the people's court to divide the common property: One of the (I) parties has concealed, transferred, sold off, destroyed, squandered the joint property of the husband and wife, or forged the joint debts of the husband and wife, which seriously damages the interests of the joint property of the husband and wife; (II) a person with a legal maintenance obligation suffers from a major illness and needs medical treatment, the other party does not agree to pay the relevant medical expenses. 4. Article 9 of the Supreme People's Court's "Several Provisions on the Partial Execution of Criminal Judgments Involving Property" stipulates that if a sentence of confiscation of property is imposed, the property legally owned by the person subject to execution shall be executed when the criminal judgment takes effect. In the execution of the penalty of confiscation of property or fine, the living expenses of the person subject to execution and his dependent family members shall be retained with reference to the minimum living expenses of the local residents of the previous year announced by the government of the place where the dependants live.
2022-04-30
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
