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1. Introduction According to the the People's Republic of China Company Law and the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law, the qualified subject to exercise the shareholders' right to know is the shareholders of the company. However, in judicial practice, it is often controversial whether the plaintiff has the status of a shareholder who enjoys the right to know. This paper will combine the current law, the provisions of judicial interpretation and the judicial cases of disputes over shareholders' right to know to analyze the determination of the subject of the exercise of shareholders' right to know. 2. Main Legal Provisions the People's Republic of China Companies Act (I) (as amended in 2018) Article 33 Shareholders shall have the right to consult and copy the articles of association, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports. Shareholders may request access to the accounting books of the company. If a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose and may damage the legitimate interests of the company, it may refuse to provide access, and shall reply to the shareholders in writing within 15 days from the date of the written request of the shareholders and explain the reasons. If the company refuses to provide inspection, the shareholder may request the people's court to require the company to provide inspection. Article 97 Shareholders shall have the right to consult the articles of association, the register of shareholders, the stubs of corporate bonds, the minutes of the general meeting of shareholders, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports, and to make suggestions or inquiries about the operation of the company. (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law of the People's Republic of (II) (as amended in 2020) Article 7 Where a shareholder, in accordance with the provisions of Articles 33 and 97 of the Company Law or the Articles of Association of the Company, sues for the inspection or copying of specific documents and materials of the Company, the people's court shall accept them in accordance with the law. If the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualification of a shareholder of the company at the time of the lawsuit, the people's court shall reject the lawsuit, but the plaintiff has preliminary evidence to prove that its legitimate rights and interests have been damaged during the shareholding period, and requests to consult or copy the company's specific documents and materials during the shareholding period in accordance with the law. Sorting out 3. referee rules The general principle of the determination of the subject of the exercise of the right to know of (I) shareholders. The general principle of the determination of the subject of the exercise of shareholders' right to know is that they are qualified as shareholders of the company. The court will often determine whether the plaintiff has the qualification of a shareholder based on the external registration information of the company, the articles of association, the register of shareholders, the certificate of capital contribution and other documents that can reflect the identity of the shareholder. Therefore, shareholders should submit shareholder qualification documents when filing a shareholder's right to know lawsuit. [Case 1] Dispute over Shareholders' Right to Know between Applicant Yangzhou Xicheng Real Estate Development Co., Ltd. and Respondent Rongwei International Development Co., Ltd. (Case No.:(2019) Supreme Law Minshen No. 5859, Trial Court: Supreme People's Court) The court held that the industrial and commercial registration information showed that Rongwei Company held the equity of Xicheng Company. Although Xicheng Company advocates that there is a "Supplementary Agreement" that can prove that Roewe Company has transferred its equity, it has not gone through the corresponding industrial and commercial change registration, nor has it gone through the procedures for foreign investment approval. Rongwei company in the case of the first instance cross-examination of the "supplementary agreement" is not recognized. Combined with the foregoing analysis, Xicheng did not provide sufficient evidence to overturn the contents of the industrial and commercial registration data. According to the second paragraph of Article 32 of the the People's Republic of China Company Law, the original trial court ruled that Roewe Company, as a shareholder of Xicheng Company recorded in the register of shareholders, has the right to exercise the shareholders' right to know to Xicheng Company. [Case 2] Retrial Dispute between Applicant Lanzhou Huamei Trading Co., Ltd. and Respondent Zhou Wanyin's Shareholders' Right to Know (Case No.:(2019) Gan Minshen No. 82, Trial Court: Gansu Higher People's Court) The court held that the certificate of capital contribution is in nature a certificate of real rights, a certificate of proof that the shareholders hold shares or capital contributions. In this case, on July 15, 2014, the "Certificate of Shareholder's Capital Contribution" sealed by Huamei Trading Company and signed by the legal representative Jiao Huaizhou stated: "The company's shareholder Zhou Wanyin paid the company on January 15, 2013. The capital contribution is 400,000 yuan (the above invested capital is my own capital, and the capital can be used to bear the civil liability of the enterprise during its use). Such shareholder shall, from the date of issuance of this capital contribution certificate, enjoy the rights of shareholders as stipulated in the Articles of Association of the Company." On January 5, 2015, the industrial and commercial change registration was made, so it was not improper for Zhou Wanyin to enjoy the shareholders' right to know according to the original judgment. Huamei Trading Company's claim that Zhou Wanyin's transfer of shares did not comply with the provisions of the law and the Articles of Association of the Company and Zhou Wanyin's fraudulent registration of industrial and commercial changes cannot be countered against Zhou Wanyin's "Certificate of Shareholder Capital Contribution" and industrial and commercial registration. (II) whether the withdrawing shareholder/transferring shareholder can exercise the shareholder's right to know Prior to the implementation of the (IV) of the Provisions of the Supreme People's Court on Certain Issues Concerning the Application of the the People's Republic of China Company Law, most courts would rule to dismiss the action of the withdrawing/transferring shareholder on the grounds that the withdrawing/transferring shareholder was not qualified as a shareholder. Article 7 of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law adds the limited right to know of shareholders who have withdrawn shares/transferred shares, that is, "if the company has evidence to prove that the plaintiff specified in the preceding paragraph is not qualified as a shareholder of the company at the time of filing a lawsuit, the people's court shall reject the lawsuit, but the plaintiff has preliminary evidence to prove that his legitimate rights and interests have been damaged during the shareholding period, except for requesting legal access to or copying of company-specific documents during the period of its shareholding". In other words, in order to exercise the shareholders' right to know, the withdrawing shareholders/transferring shareholders need to have preliminary evidence that their legitimate rights and interests have been damaged during the holding period. In judicial practice, most courts have held that the "legitimate rights and interests" here do not refer to arbitrary shareholders' rights, but mainly to property rights and interests that affect the distribution of profits or the distribution of surplus property, and that if only non-property rights and interests are harmed, it may still be impossible to exercise the right to know. [Case 1] Dispute between Appellant Shanghai Zhongshan Car Rental Company and Appellee Xue Hong Shareholders' Right to Know (Case No.:(2019) Hu 02 Min Zhong No. 1660, Trial Court: Shanghai No.2 Intermediate People's Court) The court held that the question of whether the original shareholders of the joint-stock cooperative enterprise have a limited right to know. The articles of association of Zhongshan Automobile Company do not stipulate the content of shareholders' right to know. Considering the commercial organizational nature of the shareholder cooperative enterprise, which has a certain degree of similarity with the limited liability company, and Zhongshan Automobile Company also agreed to apply the Company Law and its judicial interpretation in the appeal, the provisions of the Company Law and the relevant judicial interpretation can be referred to in this case. The second paragraph of Article 7 of the "Interpretation IV of the Company Law" stipulates: "If the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualifications of a company shareholder at the time of the lawsuit, the people's court shall reject the lawsuit, but the plaintiff has preliminary evidence to prove that during the shareholding period Its legitimate rights and interests have been damaged, except for requesting to consult or copy the company's specific documents during the shareholding period in accordance with the law." According to this article, although Xue Hong has lost the shareholder qualification of Zhongshan Automobile Company, because Zhongshan Automobile Company has never distributed profits during Xue Hong's shareholding period and has not yet settled the refund of Xue Hong's withdrawal amount, it meets the condition that "the plaintiff has preliminary evidence to prove that its legitimate rights and interests were damaged during the shareholding period". Therefore, the court believes that Xue Hong, as the original shareholder of Zhongshan Automobile Company, enjoys limited shareholders' right to know. [Case 2] Dispute over Shareholders' Right to Know between Applicant Shandong Rongsheng Investment Co., Ltd. and Respondent Qingdao Shenhua Real Estate Co., Ltd. (Case No.:(2019) Lu Minshen No. 3159, Trial Court: Shandong Higher People's Court) The court held that: Article 7, paragraph 2, of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates that if the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualifications of a company shareholder at the time of the lawsuit, the people's court The lawsuit shall be rejected, but the plaintiff has preliminary evidence to prove that his legal rights and interests were damaged during the shareholding period, except for requesting to consult or copy the company's specific documents during the shareholding period. In accordance with the above provisions, Rongsheng Company shall provide preliminary evidence to prove that Shenhua Company harms its interests during the period of its shareholding. According to the facts ascertained in the original trial, both parties agreed that Beijing Yuanzhong Real Estate Development Co., Ltd., the shareholder of Shenhua Company, was responsible for the operation of Shenhua Company. Therefore, the loan purpose and house operation mode of Shenhua Company advocated by Rongsheng Company belong to the company autonomy category of daily operation of Shenhua Company. And in the resolution of the shareholders' meeting held by Shenhua Company on February 28, 2018, the follow-up operation of the house developed by Shenhua Company and the company's capital status were also resolved as the topics of the meeting. It is also reflected in the letter of intent for equity transfer on June 27, 2013. Rongsheng Company did not provide preliminary evidence to prove the fact that its legitimate rights and interests were damaged during the period of its shareholding, and the original ruling rejected the facts and applied the law. (III) whether the successor shareholder can exercise the shareholder's right to know about the information before it becomes a shareholder. A successor shareholder is a shareholder who acquires the status of a shareholder by transferring equity, accepting gifts, inheriting equity, etc. Based on the lack of trust of the original shareholders in the successor shareholders, the continuing shareholders to obtain shareholder qualification before the operating level may have defects and other reasons, the refusal of the successor shareholders to access the information before they become shareholders of the company often occurs, which leads to the shareholders' right to know litigation. In this regard, there are mainly two different views in judicial practice: the first is that the successor shareholder cannot exercise the shareholder's right to know about the information before he becomes a shareholder; the second is that the successor shareholder enjoys the shareholder's right to know about the information before he becomes a shareholder, and the current mainstream judicial view is the second, mainly for the following reasons: 1. Existing laws and judicial interpretations do not prohibit shareholders from accessing the company information before they became shareholders. Once you become a shareholder of the company, you have exactly the same rights as other shareholders and should not be treated differently or limited by the time you become a shareholder of the company. 2. The operation of the company is a whole, dynamic and continuous process. The business decisions made by the company are closely related to the transactions and decisions that have taken place before. When shareholders exercise their voting rights on the company, they also take the understanding of the overall situation of the company as a prerequisite. 3. Shareholders shall be liable for the debts of the Company to the extent of their capital contributions, including the debts incurred by the Company prior to their accession, and from the point of view of the consistency of rights and obligations, shareholders shall also have the right to consult and copy the relevant documents of the Company prior to their accession. [Case 1] Dispute between Appellant Beijing Forty People Forum Consulting Co., Ltd. and Appellee Zhang Jialin Shareholders' Right to Know (Case No.:(2022) Beijing 02 Minzong No. 1675, Trial Court: Beijing No.2 Intermediate People's Court) The court held that: First of all, Article 33 of the Company Law clearly stipulates that the shareholders of a limited liability company have the right to consult and copy the articles of association, the minutes of the shareholders' meeting and other documents and to request access to the company's accounting books, and does not prohibit shareholders from consulting the relevant documents before they become shareholders. Secondly, the legislation of shareholders' right to know is intended to allow shareholders to fully grasp the company's information, management activities and risk status, so as to supervise the company's management and protect the legitimate rights and interests of shareholders. The company's operation is a whole, dynamic and continuous process, the company's business decisions are closely related to the previous transactions and decisions, shareholders in the exercise of voting rights in the company is also based on the understanding of the overall situation of the company. In addition, the shareholders shall be liable for the debts of the company to the extent of their capital contribution, including the debts incurred by the company before the shareholders joined, so from the point of view of the consistency of rights and obligations, the shareholders shall also have the right to consult and copy the relevant documents of the company before their accession. Therefore, it is not improper for the court of first instance to support Zhang Jialin to consult and copy the relevant documents of the company before he became a shareholder. The Forty-Person Forum's claim that Zhang Jialin's exercise of the shareholders' right to know should be limited to his appeal after he became a shareholder has no factual and legal basis, and the Court does not support it. [Case 2] Plaintiff Wang Yanfeng and Defendant Changzhou Sanli Precision Machinery Co., Ltd. Shareholder's Right to Know Dispute (Case No.:(2012) Zhong Shang Chu Zi No. 555, Trial Court: Zhonglou District People's Court of Changzhou City, Jiangsu Province) The court held that: regarding the defendant's argument that the plaintiff only obtained the shareholder qualification in 2008, it can only consult the accounting books after 2008, the court held that the shareholders' right to know is an inherent legal right of the shareholders of the company. once they become shareholders of the company, they enjoy exactly the same rights as other shareholders and should not be treated differently or restricted according to the time they become shareholders of the company. therefore, the defendant's argument has no legal basis and will not be accepted. As to whether the plaintiff's request for access to the accounting books two years ago from the date of prosecution has exceeded the statute of limitations, in this case, the statute of limitations is essentially a question of the scope of access. The court held that the company's operation is a process of overall continuity, the company's situation today may be the result of previous operations, if the absolute identity of the right, shareholders may not access to the relevant information before the acquisition of shareholder identity, will inevitably lead to incomplete protection of shareholders' rights and interests. After a shareholder joins the company and becomes a shareholder, the understanding and mastery of the company's operating conditions and financial information before he becomes a shareholder should fall within the scope of his proper exercise of the shareholder's right to know, so in this case the plaintiff has the right to request access to the company's accounting books before he joined the company. (IV) whether dormant shareholders can exercise shareholders' right to know Existing laws and judicial interpretations do not recognize that anonymous shareholders have direct shareholder rights over the company. In principle, the hidden shareholder cannot directly exercise the shareholder's right to know, its rights need to be exercised indirectly through the prominent shareholder, most courts will rule to dismiss the anonymous shareholder's lawsuit on the grounds that the anonymous shareholder is not qualified to bring the shareholder's right to know before the name is revealed. However, in conjunction with judicial cases, the court may also support its right to know request if the anonymous shareholder can prove that the company and other shareholders recognize its status as an anonymous shareholder, that the anonymous shareholder has exercised the rights of shareholders, and that the exercise of the rights of the anonymous shareholder is legitimate. [Case 1] Dispute between Plaintiff Liu Kewei and Defendant Shanxi Fengneng Refractory Co., Ltd., Third Person Wu Zhaowei and Huo Kaiyang Shareholders' Right to Know (Case No.:(2021) Jin 0781 Min Chu No. 1827, Trial Court: Jiexiu Municipal People's Court of Shanxi Province) The court held that Article 32, paragraph 2, of the the People's Republic of China Company Law stipulates: "Shareholders recorded in the register of shareholders may claim to exercise their rights in accordance with the register of shareholders." The Supreme People's Court on the application<中华人民共和国公司法>若干问题的规定（三）》第二十四条第三款规定：“实际出资人未经公司其他股东半数以上同意，请求公司变更股东、签发出资证明书、记载于股东名册、记载于公司章程并办理公司登记机关登记的，人民法院不予支持”。本案中，各方当事人对刘克维系山西丰能公司实际出资人的身份以及霍凯洋系山西丰能公司名义出资人的身份均无异议。根据前述法律规定可知，股东知情权是法律赋</中华人民共和国公司法>
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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 or 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.
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1. Introduction According to the the People's Republic of China Company Law and the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law, the qualified subject to exercise the shareholders' right to know is the shareholders of the company. However, in judicial practice, it is often controversial whether the plaintiff has the status of a shareholder who enjoys the right to know. This paper will combine the current law, the provisions of judicial interpretation and the judicial cases of disputes over shareholders' right to know to analyze the determination of the subject of the exercise of shareholders' right to know. 2. Main Legal Provisions the People's Republic of China Companies Act (I) (as amended in 2018) Article 33 Shareholders shall have the right to consult and copy the articles of association, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports. Shareholders may request access to the accounting books of the company. If a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose and may damage the legitimate interests of the company, it may refuse to provide access, and shall reply to the shareholders in writing within 15 days from the date of the written request of the shareholders and explain the reasons. If the company refuses to provide inspection, the shareholder may request the people's court to require the company to provide inspection. Article 97 Shareholders shall have the right to consult the articles of association, the register of shareholders, the stubs of corporate bonds, the minutes of the general meeting of shareholders, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports, and to make suggestions or inquiries about the operation of the company. (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law of the People's Republic of (II) (as amended in 2020) Article 7 Where a shareholder, in accordance with the provisions of Articles 33 and 97 of the Company Law or the Articles of Association of the Company, sues for the inspection or copying of specific documents and materials of the Company, the people's court shall accept them in accordance with the law. If the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualification of a shareholder of the company at the time of the lawsuit, the people's court shall reject the lawsuit, but the plaintiff has preliminary evidence to prove that its legitimate rights and interests have been damaged during the shareholding period, and requests to consult or copy the company's specific documents and materials during the shareholding period in accordance with the law. Sorting out 3. referee rules The general principle of the determination of the subject of the exercise of the right to know of (I) shareholders. The general principle of the determination of the subject of the exercise of the shareholders' right to know is to qualify as a shareholder of the company. The court will often determine whether the plaintiff has the qualification of a shareholder based on the external registration information of the company, the articles of association, the register of shareholders, the certificate of capital contribution and other documents that can reflect the identity of the shareholder. Therefore, shareholders should submit shareholder qualification documents when filing a shareholder's right to know lawsuit. [Case 1] Dispute over Shareholders' Right to Know between Applicant Yangzhou Xicheng Real Estate Development Co., Ltd. and Respondent Rongwei International Development Co., Ltd. (Case No.:(2019) Supreme Law Minshen No. 5859, Trial Court: Supreme People's Court) The court held that the industrial and commercial registration information showed that Rongwei Company held the equity of Xicheng Company. Although Xicheng Company advocates that there is a "Supplementary Agreement" that can prove that Roewe Company has transferred its equity, it has not gone through the corresponding industrial and commercial change registration, nor has it gone through the procedures for foreign investment approval. Rongwei company in the case of the first instance cross-examination of the "supplementary agreement" is not recognized. Combined with the foregoing analysis, Xicheng did not provide sufficient evidence to overturn the contents of the industrial and commercial registration data. According to the second paragraph of Article 32 of the the People's Republic of China Company Law, the original trial court ruled that Roewe Company, as a shareholder of Xicheng Company recorded in the register of shareholders, has the right to exercise the shareholders' right to know to Xicheng Company. [Case 2] Retrial Dispute between Applicant Lanzhou Huamei Trading Co., Ltd. and Respondent Zhou Wanyin's Shareholders' Right to Know (Case No.:(2019) Gan Minshen No. 82, Trial Court: Gansu Higher People's Court) The court held that the certificate of capital contribution is in nature a certificate of real rights, a certificate of proof that the shareholders hold shares or capital contributions. In this case, on July 15, 2014, the "Certificate of Shareholder's Capital Contribution" sealed by Huamei Trading Company and signed by the legal representative Jiao Huaizhou stated: "The company's shareholder Zhou Wanyin paid the company on January 15, 2013. The capital contribution is 400,000 yuan (the above invested capital is my own capital, and the capital can be used to bear the civil liability of the enterprise during its use). Such shareholder shall, from the date of issuance of this capital contribution certificate, enjoy the rights of shareholders as stipulated in the Articles of Association of the Company." On January 5, 2015, the industrial and commercial change registration was made, so it was not improper for Zhou Wanyin to enjoy the shareholders' right to know according to the original judgment. Huamei Trading Company's claim that Zhou Wanyin's transfer of shares did not comply with the provisions of the law and the Articles of Association of the Company and Zhou Wanyin's fraudulent registration of industrial and commercial changes cannot be countered against Zhou Wanyin's "Certificate of Shareholder Capital Contribution" and industrial and commercial registration. (II) whether the withdrawing shareholder/transferring shareholder can exercise the shareholder's right to know Prior to the implementation of the (IV) of the Provisions of the Supreme People's Court on Certain Issues Concerning the Application of the the People's Republic of China Company Law, most courts would rule to dismiss the action of the withdrawing/transferring shareholder on the grounds that the withdrawing/transferring shareholder was not qualified as a shareholder. Article 7 of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law adds the limited right to know of the shareholders who have withdrawn shares/transferred shares, that is, "if the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualification of a company shareholder at the time of prosecution, the people's court shall reject the prosecution, but the plaintiff has preliminary evidence to prove that his legitimate rights and interests have been damaged during the period of shareholding, except for requesting legal access to or copying of company-specific documents during the period of its shareholding". In other words, in order to exercise the shareholders' right to know, the withdrawing shareholders/transferring shareholders need to have preliminary evidence that their legitimate rights and interests have been damaged during the holding period. In judicial practice, most courts have held that the "legitimate rights and interests" here do not refer to arbitrary shareholders' rights, but mainly to property rights and interests that affect the distribution of profits or the distribution of surplus property, and that if only non-property rights and interests are harmed, it may still be impossible to exercise the right to know. [Case 1] Dispute between Appellant Shanghai Zhongshan Car Rental Company and Appellee Xue Hong Shareholders' Right to Know (Case No.:(2019) Hu 02 Min Zhong No. 1660, Trial Court: Shanghai No.2 Intermediate People's Court) The court held that the question of whether the original shareholders of the joint-stock cooperative enterprise have a limited right to know. The articles of association of Zhongshan Automobile Company do not stipulate the content of shareholders' right to know. Considering the commercial organizational nature of the shareholder cooperative enterprise, which has a certain degree of similarity with the limited liability company, and Zhongshan Automobile Company also agreed to apply the Company Law and its judicial interpretation in the appeal, the provisions of the Company Law and the relevant judicial interpretation can be referred to in this case. The second paragraph of Article 7 of the "Interpretation IV of the Company Law" stipulates: "If the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualifications of a company shareholder at the time of the lawsuit, the people's court shall reject the lawsuit, but the plaintiff has preliminary evidence to prove that during the shareholding period Its legitimate rights and interests have been damaged, except for requesting to consult or copy the company's specific documents during the shareholding period in accordance with the law." According to this article, although Xue Hong has lost the shareholder qualification of Zhongshan Automobile Company, because Zhongshan Automobile Company has never distributed profits during Xue Hong's shareholding period and has not yet settled the refund of Xue Hong's withdrawal amount, it meets the condition that "the plaintiff has preliminary evidence to prove that its legitimate rights and interests were damaged during the shareholding period". Therefore, the court believes that Xue Hong, as the original shareholder of Zhongshan Automobile Company, enjoys limited shareholders' right to know. [Case 2] Dispute over Shareholders' Right to Know between Applicant Shandong Rongsheng Investment Co., Ltd. and Respondent Qingdao Shenhua Real Estate Co., Ltd. (Case No.:(2019) Lu Minshen No. 3159, Trial Court: Shandong Higher People's Court) The court held that: Article 7, paragraph 2, of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates that if the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualifications of a company shareholder at the time of the lawsuit, the people's court The lawsuit shall be rejected, but the plaintiff has preliminary evidence to prove that his legal rights and interests were damaged during the shareholding period, except for requesting to consult or copy the company's specific documents during the shareholding period. In accordance with the above provisions, Rongsheng Company shall provide preliminary evidence to prove that Shenhua Company harms its interests during the period of its shareholding. According to the facts ascertained in the original trial, both parties agreed that Beijing Yuanzhong Real Estate Development Co., Ltd., the shareholder of Shenhua Company, was responsible for the operation of Shenhua Company. Therefore, the loan purpose and house operation mode of Shenhua Company advocated by Rongsheng Company belong to the company autonomy category of daily operation of Shenhua Company. And in the resolution of the shareholders' meeting held by Shenhua Company on February 28, 2018, the follow-up operation of the house developed by Shenhua Company and the company's capital status were also resolved as the topics of the meeting. It is also reflected in the letter of intent for equity transfer on June 27, 2013. Rongsheng Company did not provide preliminary evidence to prove the fact that its legitimate rights and interests were damaged during the period of its shareholding, and the original ruling rejected the facts and applied the law. (III) whether the successor shareholder can exercise the shareholder's right to know about the information before it becomes a shareholder. A successor shareholder is a shareholder who acquires the qualification of a shareholder by way of transfer of equity, acceptance of gifts, inheritance of equity, etc. Based on the lack of trust of the original shareholders in the successor shareholders, the continuing shareholders to obtain shareholder qualification before the operating level may have defects and other reasons, the refusal of the successor shareholders to access the information before they become shareholders of the company often occurs, which leads to the shareholders' right to know litigation. In this regard, there are mainly two different views in judicial practice: the first is that the successor shareholder cannot exercise the shareholder's right to know about the information before he becomes a shareholder; the second is that the successor shareholder enjoys the shareholder's right to know about the information before he becomes a shareholder, and the current mainstream judicial view is the second, mainly for the following reasons: 1. Existing laws and judicial interpretations do not prohibit shareholders from accessing the company information before they became shareholders. Once you become a shareholder of the company, you have exactly the same rights as other shareholders and should not be treated differently or limited by the time you become a shareholder of the company. 2. The operation of the company is a whole, dynamic and continuous process. The business decisions made by the company are closely related to the transactions and decisions that have taken place before. When shareholders exercise their voting rights on the company, they also take the understanding of the overall situation of the company as a prerequisite. 3. Shareholders shall be liable for the debts of the Company to the extent of their capital contributions, including the debts incurred by the Company prior to their accession, and from the point of view of the consistency of rights and obligations, shareholders shall also have the right to consult and copy the relevant documents of the Company prior to their accession. [Case 1] Dispute between Appellant Beijing Forty People Forum Consulting Co., Ltd. and Appellee Zhang Jialin Shareholders' Right to Know (Case No.:(2022) Beijing 02 Minzong No. 1675, Trial Court: Beijing No.2 Intermediate People's Court) The court held that: First of all, Article 33 of the Company Law clearly stipulates that the shareholders of a limited liability company have the right to consult and copy the articles of association, the minutes of the shareholders' meeting and other documents and to request access to the company's accounting books, and does not prohibit shareholders from consulting the relevant documents before they become shareholders. Secondly, the legislation of shareholders' right to know is intended to allow shareholders to fully grasp the company's information, management activities and risk status, so as to supervise the company's management and protect the legitimate rights and interests of shareholders. The company's operation is a whole, dynamic and continuous process, the company's business decisions are closely related to the previous transactions and decisions, shareholders in the exercise of voting rights in the company is also based on the understanding of the overall situation of the company. In addition, the shareholders shall be liable for the debts of the company to the extent of their capital contribution, including the debts incurred by the company before the shareholders joined, so from the point of view of the consistency of rights and obligations, the shareholders shall also have the right to consult and copy the relevant documents of the company before their accession. Therefore, it is not improper for the court of first instance to support Zhang Jialin to consult and copy the relevant documents of the company before he became a shareholder. The Forty-Person Forum's claim that Zhang Jialin's exercise of the shareholders' right to know should be limited to his appeal after he became a shareholder has no factual and legal basis, and the Court does not support it. [Case 2] Plaintiff Wang Yanfeng and Defendant Changzhou Sanli Precision Machinery Co., Ltd. Shareholder's Right to Know Dispute (Case No.:(2012) Zhong Shang Chu Zi No. 555, Trial Court: Zhonglou District People's Court of Changzhou City, Jiangsu Province) The court held that: regarding the defendant's argument that the plaintiff only obtained the shareholder qualification in 2008, it can only consult the accounting books after 2008, the court held that the shareholders' right to know is an inherent legal right of the shareholders of the company. once they become shareholders of the company, they enjoy exactly the same rights as other shareholders and should not be treated differently or restricted according to the time they become shareholders of the company. therefore, the defendant's argument has no legal basis and will not be accepted. As to whether the plaintiff's request for access to the accounting books two years ago from the date of prosecution has exceeded the statute of limitations, in this case, the statute of limitations is essentially a question of the scope of access. The court held that the company's operation is a process of overall continuity, the company's situation today may be the result of previous operations, if the absolute identity of the right, shareholders may not access to the relevant information before the acquisition of shareholder identity, will inevitably lead to incomplete protection of shareholders' rights and interests. After a shareholder joins the company and becomes a shareholder, the understanding and mastery of the company's operating conditions and financial information before he becomes a shareholder should fall within the scope of his proper exercise of the shareholder's right to know, so in this case the plaintiff has the right to request access to the company's accounting books before he joined the company. (IV) whether dormant shareholders can exercise shareholders' right to know Existing laws and judicial interpretations do not recognize that anonymous shareholders have direct shareholder rights over the company. In principle, the hidden shareholder cannot directly exercise the shareholder's right to know, its rights need to be exercised indirectly through the prominent shareholder, most courts will rule to dismiss the anonymous shareholder's lawsuit on the grounds that the anonymous shareholder is not qualified to bring the shareholder's right to know before the name is revealed. However, in conjunction with judicial cases, the court may also support its right to know request if the anonymous shareholder can prove that the company and other shareholders recognize its status as an anonymous shareholder, that the anonymous shareholder has exercised the rights of shareholders, and that the exercise of the rights of the anonymous shareholder is legitimate. [Case 1] Dispute between Plaintiff Liu Kewei and Defendant Shanxi Fengneng Refractory Co., Ltd., Third Party Wu Zhaowei and Huo Kaiyang Shareholders' Right to Know (Case No.:(2021) Jin 0781 Minchu No. 1827, Trial Court: Jiexiu Municipal People's Court of Shanxi Province) The court held that Article 32, paragraph 2, of the the People's Republic of China Company Law stipulates: "Shareholders recorded in the register of shareholders may claim to exercise their rights in accordance with the register of shareholders." The Supreme People's Court on the application<中华人民共和国公司法>若干问题的规定（三）》第二十四条第三款规定：“实际出资人未经公司其他股东半数以上同意，请求公司变更股东、签发出资证明书、记载于股东名册、记载于公司章程并办理公司登记机关登记的，人民法院不予支持”。本案中，各方当事人对刘克维系山西丰能公司实际出资人的身份以及霍凯洋系山西丰能公司名义出资人的身份均无异议。根据前述法律规定可知，股东知情权是法律赋</中华人民共和国公司法>
2022-04-30
25
2022-04
The Sub-district Office (hereinafter referred to as the "Sub-district Office") is the management agency of the township-level administrative district in my country. It is an agency dispatched by the district government and belongs to the township-level administrative district management agency with the town people's government (hereinafter referred to as the "town government"). Construction, public services, urban management, social governance, etc. exercise comprehensive management functions, are fully responsible for the coordination of regional, social, and mass work in the jurisdiction, and create a good development environment. One end of the street office and the town government is connected with the grass-roots level of society, which is the "nerve endings" closest to the people; the other end is connected with the government, which is the foothold of government power, implements the political intention and administrative concept of the higher government, and widely contacts the residents in the jurisdiction, It plays an important role in promoting regional economic development, serving and improving people's livelihood, and comprehensive management of social security. The street office and the town government are powerful assistants to the policy of governing the country according to law. The "Jinan City Property Management Regulations", which will be implemented on May 1, 2022, clarifies the organization, coordination, guidance and supervision of "people" and "things" in the property management area by the street office and the town government. Regarding the responsibilities of the street office and the town government in property management, Article 5 of the Jinan City Property Management Regulations makes inductive provisions on the responsibilities of the street office and the town government. The relevant content of the regulations also shows many bright spots. The specific content is analyzed and summarized as follows: The 1. is responsible for organizing and guiding the establishment of the owners' assembly and the election and change of the owners' committee in its jurisdiction. 1. Set up the preparatory group for the owners' meeting The construction unit or the preliminary property service person shall report the number, area and proportion of owners to the subdistrict office and the town government within 10 days from the date of delivery. If the conditions for holding the first owners' meeting are met, the subdistrict office and the town government shall form a preparatory group for the owners' meeting within 60 days. The construction unit or the preliminary property service person shall submit a written report in accordance with the requirements of the subdistrict office and the town government, the subdistrict office and the town government shall have the right to inquire the name of the owner, the location of the house and the floor area of the exclusive part of the real estate registration institution. 2, send personnel to serve as the leader of the preparatory group The preparatory group consists of an odd number of more than 7 people, and the group leader is appointed by the neighborhood office and the town government, who is responsible for presiding over and convening the preparatory group. The preparatory group shall announce the list of its members and their duties within 10 days after its establishment. 3. Extension of consent and re-establishment of the preparatory group The preparatory group shall organize the first meeting of the owners' assembly within 90 days from the date of its establishment. If there are special circumstances, with the consent of the street office and the town government, it can be extended for 30 days and announced in the property management area. If the task of organizing the first meeting of the owners' assembly is not completed, the preparatory group shall be dissolved on its own. Within 90 days from the date of dissolution of the preparatory group, the subdistrict office and the town government shall re-establish the preparatory group. 4. Determine the list of candidates for the members of the owners' committee The candidates for the members of the owners' committee shall be selected by the owners' self-recommendation or joint recommend. The list shall be determined by the street office and the town government, and the basic information of the candidates shall be publicized by the preparatory group in the property management area. 5. Receive the filing information of the owners' committee The district housing and urban-rural construction authorities will push the filing information of the eligible owners' committee to the street office and the town government. 6. Urge the owners' committee to prepare for the general election 90 days before the expiration of the term of office of the owners' committee, it shall report in writing to the street office and the town government, and start the preparatory work for the general election; if the owners' committee fails to report within the time limit or start the preparatory work for the general election, the street office and the town government shall urge it to perform its duties. 7. Establishment of temporary property management committee If the conditions for the establishment of the owners' meeting are met, the owners' meeting has been organized twice but the owners' committee has not been elected, or the owners' committee needs to be re elected due to the expiration of its term of office or the vacancy of its members or being removed. However, a new owners' committee cannot be elected after being organized and guided by the street office and the town government twice, The street office and town government shall form a temporary property management committee. The director and deputy director of the temporary property management committee are selected by the neighborhood office and the town government from the representatives of the residents committee and the owners. The street office and the town government shall publicize the list of members of the temporary property management committee in the property management area before the establishment of the temporary property management committee, and the publicity time shall not be less than 7 days; if the owner has any objection, he may submit it to the street office or the town government with his real name. 2. supervise the owners' assembly and owners' committee to perform their duties according to law 1. Supervise the transfer of relevant matters of the original owners' committee Supervise the original owners' committee to transfer the seals, funds, office space, articles and materials kept and used by the original owners' committee to the new owners' committee within 3 days from the date of expiration of the term of office. 2. Supervise the legal compliance of the decisions of the owners' assembly and the owners' committee The decisions of the owners' assembly and the owners' committee shall not violate the provisions of laws, regulations, management regulations and rules of procedure of the owners' assembly. In case of violation of laws, regulations and other provisions, the street office or the town government shall order it to make corrections within a time limit or revoke its decision, and make an announcement to all owners. 3. Supervise the owners' committee to perform its duties in accordance with the law and regulations, and not damage the owners' rights and interests The owners' committee has exceeded its authority to exercise the powers of the owners' assembly or fails to implement the decisions of the owners' assembly, fails to organize and convene the owners' assembly meeting in accordance with the rules of procedure, misappropriates or embezzles residential special maintenance funds, owners' public income, makes decisions that violate laws and regulations, fails to publicize property management information such as the use and management of residential special maintenance funds, the use and management of owners' public income, and the use of property service houses, forgery and other acts that infringe upon the legitimate rights and interests of the owners, the street office and the town government shall order them to make corrections within a time limit, and if they refuse to make corrections within the time limit and cause serious consequences, the street office and the town government shall organize a meeting of the owners' meeting, propose to terminate the qualifications of all members of the owners' committee and initiate the procedure of re-election in advance; suspected illegal acts, Should report to relevant departments. 4. Supervise and guide the temporary property management committee the term of office of the provisional estate management committee shall not exceed two years. During the term of office, at least one meeting of the owners' assembly shall be organized every year to promote the establishment of the owners' assembly and elect the owners' committee. If the establishment of the owners' assembly or the election of the owners' committee is not promoted at the expiration of the period, the street office and the town government shall re-establish the temporary property management committee. The temporary property management committee shall disclose the relevant information of property management to the owners in a timely manner, and accept the guidance and supervision of the street office and the town government. If the decision made by the temporary property management committee violates laws and regulations, the street office or town government shall order it to make corrections within a time limit or revoke its decision in accordance with the law, and notify all owners. 3. the establishment of a joint meeting system for property management in the jurisdiction The property management joint meeting is convened by the neighborhood office and the township government, and is attended by community residents committees, public security police stations, property service providers, owners' committees or owners' representatives, professional business units, comprehensive law enforcement, property management and other departments. The main coordination of the joint meeting: 1. The owners' committee and relevant departments fail to perform their duties in accordance with the law; 2. Problems in the performance of exit procedures and handover work by property service personnel; 3. Emergencies in the property service area; 4. The connection and cooperation between property management and community management; 5. Other property management matters that need to be coordinated. 4. coordinate the handling of important issues and issues in property management 1. Disclosure of information to the owners in accordance with the provisions of these Regulations If the street office, the town government and the residents' committee are obliged to disclose information to the owners in accordance with the provisions of these regulations, they shall publish it in writing at the main entrances and exits of the property management area, the bulletin board, the property service room and other prominent locations, and the disclosure period shall not be less than seven days, and fill in the municipal property management service information system at the same time. 2. Property management area delineation Before the delimitation of the property management area, the opinions of the street office and the town government shall be solicited; after the delimitation, the information shall be pushed to the street office and the town government. 3. Supervise the voting results of the owners' meeting The owners' committee will report the voting results to the neighborhood office and the town government during the publicity period; if the publicity is not made within the time limit or the publicity does not meet the conditions, the neighborhood office and the town government shall order it to make corrections within a time limit, and if it fails to make corrections within the time limit, it shall be announced. 4, invited to participate in the property to undertake inspection work The construction unit shall carry out the property undertaking inspection work with the selected early-stage property service personnel after the completion and acceptance of the construction project, and shall invite a certain number of owner representatives and the street office, town government, and town government where the property is located to participate, and may hire relevant professionals when necessary Institutional assistance. 5. Supervise and guide the handover of the construction unit Supervise and guide the construction unit to hand over the copy of the property service room and relevant property management information to the property service person. 6, access to property services to establish and preserve the files and information 7. Coordinate property service personnel to take emergency measures When major hidden dangers of accidents or safety accidents and other emergencies are discovered, the property service person shall take emergency measures in a timely manner, notify the relevant owners, and report to the residents committee, sub-district office, town government, professional unit and safety supervision of the property in accordance with regulations. The department responsible for management reports to assist in related work. 8. Supervise and coordinate the handover of property service personnel The street office, town government, district and county housing and urban-rural construction departments where the property is located shall strengthen the supervision and coordination of the handover of property service personnel. If the property service person refuses to hand over the relevant materials, funds and articles, or refuses to withdraw from the property service area, the owners' committee or the owner may report to the street office, the town government, the district and county housing and urban-rural construction departments. 9. Organize and provide emergency services to maintain the basic living services of the owners When the property service provider terminates the property service without authorization in violation of the contract, resulting in a sudden loss of management, the street office and the town government shall organize and determine the emergency property service provider to provide emergency services such as garbage removal and elevator operation to maintain the basic living services of the owners. The street office and the town government shall publicize the service items, service standards and property fees for emergency services provided during the emergency service period in the property management area, and the property fees during the emergency service period shall be borne by all owners. During this period, the street office and the town government shall organize the owners to jointly decide on the selection of new property service personnel and coordinate the handover between the newly selected property service personnel and emergency property service personnel. 10, Mediation of Conflicts and Disputes in Property Management If there is a dispute between the owner, the owners' assembly, the owners' committee, the property service person, the professional business unit, and the construction unit due to the property management, it shall first negotiate and resolve it by itself; if the negotiation fails, it may apply to the street office, the town government or the residents committee for mediation. 11, the establishment of emergency response work system and materials and self-built security mechanism. The municipal, district and county people's governments, sub-district offices, and town governments shall include owners' committees and property service providers in the emergency response work system for epidemics and other related emergencies, and establish a material and financial guarantee mechanism. During the period of responding to public emergencies, the sub-district office and the town government are responsible for implementing various emergency measures taken by the municipal, district and county people's governments in accordance with the law, guiding property service providers to carry out corresponding levels of response work, and providing corresponding material and financial support. The street office and the town government shall perform their duties in strict accordance with the regulations, otherwise the higher-level competent authority or procuratorial organ will order them to correct violations of laws and regulations, and impose sanctions on the directly responsible persons in charge and other directly responsible persons in accordance with the law.
2022-04-25
23
2022-04
Brief description of the case Ms. Zhang and Mr. Li registered their marriage in 2008. Soon after the marriage, the two had a son. After marriage, Ms. Zhang assumed the responsibility of husband and son. Mr. Li was full of confidence when he saw the lovely child. He worked hard to start a business for his family and set up a company. Later, she could not resist the temptation to have feelings with the company's female accountant and maintained an improper relationship between men and women for a long time. After that, the female accountant gave birth to a son for her. Mr. Li is very happy to pay 1.88 million yuan twice (July 12, 2018, July 26, 2018) to buy a real estate for the female accountant. Now Ms. Zhang wants to sue Mr. Li for giving the joint property of husband and wife to others without his own consent during the marriage relationship, which is invalid, and claims that the female accountant should return the grant of 1.88 million yuan. Can Ms. Zhang's claim be supported by the court? Advice from counsel When the husband or wife makes an important decision on the disposal of the common property of the husband and wife not due to the needs of daily life, the husband and wife shall consult on an equal footing and reach a consensus. The donation of common property by one of the spouses to another is a disposition of common property, which shall be null and void without the consent of the spouse. In this case, although the 1.88 million yuan disposed of by Mr. Li was paid from his personal bank account, the payment period was during the existence of the relationship with Ms. Zhang, and the 1.88 million yuan should be regarded as the joint property of Ms. Zhang and Mr. Li. If Ms. Zhang requests the court to confirm that the gift is invalid and requests the return of 1.88 million yuan, the court shall support it according to law. Judicial Viewpoint of the Supreme People's Court Although there are two different views of partial invalidity and total invalidity in reality, the act of giving the joint property to others without authorization by one of the spouses should be completely invalid. Partially invalid said One of the spouses gives a large amount of the joint property of the husband and wife to another without authorization, which obviously infringes the property rights and interests of the other party. The act of the gift should be found to be partially invalid, not completely invalid. Reason: The common property of the husband and wife includes both the husband's share and the wife's share, half of the property given to others is the share of one of the spouses, and the intention of one of the spouses to dispose of their own share should be true, and the other person can obtain half of the property rights. According to the general principle of common ownership stipulated in article 299 of the the People's Republic of China Civil Code, 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 two parties cannot divide their personal shares in 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 their joint relationship can the common property be divided and their respective shares determined. Therefore, the view that "half of the property given to others is the share of one of the spouses" cannot be established. All invalid said During the existence of the marital relationship, both husband and wife have equal rights to the common property, and either party has the right to decide whether to dispose of the common property due to the needs of daily life. If an important decision is made on the disposition of the joint property of the husband and wife not due to the needs of daily life, the husband and wife shall consult on an equal footing and reach a consensus. According to the second paragraph of Article 1062 of the the People's Republic of China Civil Code, one of the spouses gives the common property to another person free of charge for the sake of daily life, which seriously damages the property rights and interests of the other party, which violates the principle of fairness in civil law, and such a gift shall be invalid. To sum up: 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. It can be seen that, under a common relationship, the disposition of common property without the consent of all co-owners shall be null and void. Risk Alert In marriage and family, neither of the husband and wife should easily give the joint property of the husband and wife to the third party, and the third party should not accept the donated property at will. Because there is a risk that such a gift will be ineffective, as a recipient, it is likely that it will end up being just an empty joy. Article Link 1. Article 501 of the Civil Code of the people's Republic of China stipulates that the disposal of shared real or movable property and the major repair, change of nature or use of shared real or movable property shall be subject to the consent of the co-owners or all co-owners who account for more than 2/3 of the shares, unless otherwise agreed between the co-owners. 2. Article 299 of the Civil Code of the People's Republic of China stipulates that the co-owners have joint ownership of the real or movable property in common. The second paragraph of Article 1062 of the the People's Republic of China Civil Code stipulates that husband and wife have equal rights to deal with common property.
2022-04-23
22
2022-04
As one of the most common economic contracts, the contract of sale was affected in many ways during the new crown epidemic. Especially for production and processing enterprises, in terms of raw material procurement, they may face the problems of not being able to purchase sufficient production necessities in time, the price of raw materials has risen sharply, and the production cost has increased significantly, which will cause profits to be compressed or even losses; in terms of sales, Because of the epidemic prevention and control measures in different regions, some product sales, overstock, and price drops, there may also be delays in delivery, failure to do so, or rejection of the other enterprise in breach of contract. This paper only analyzes the determination of force majeure involved in the purchase and sale of production and processing enterprises and makes suggestions on the operation of the legal level. The determination of the force majeure clause under the new crown outbreak in 1.. Since the New Crown epidemic in 2020, discussions have continued about the impact of the New Crown epidemic and force majeure on contract performance. The author believes that the epidemic is not necessarily equivalent to force majeure, the contract under the epidemic, whether it should be performed normally, or the application of the principle of change of circumstances to be changed, or belong to force majeure to be exempted or lifted, need to be defined in the light of the specific circumstances. Here, the author through the positive and negative two cases to briefly explain: Case one In general, unless expressly agreed in the contract, a shortage of raw materials is usually not a case of force majeure claimed by the seller because the seller should have other channels to ensure an adequate supply of raw materials. However, in the context of the new crown epidemic, the cause of the shortage of raw materials may be considered force majeure if the seller has no access to raw materials for reasons other than its own. However, it can also be seen from this case that the impact of the epidemic on the supply of raw materials is claimed to be force majeure, and it needs to be proved that the supply of raw materials is single and indeed affected by the epidemic and there are difficulties in the supply of raw materials. The court will make a comprehensive judgment based on the seller's performance of the contract and the communication between the two parties. It is worth noting that when force majeure is used as a cause of termination, the contract can often be terminated only when the force majeure causes the contract to be completely unfulfilled and the purpose of the contract cannot be achieved. If the contract cannot be performed for a while, the contract can still be performed once the cause of force majeure disappears. At this time, unless one of the parties has evidence to prove that the time factor has an important influence on the realization of the purpose of the contract, the delay in performance will cause the purpose of the contract to be unable to be realized, otherwise it can only produce the effect of deferred performance, but cannot terminate the contract. Case II As can be seen from the above cases, force majeure as an exemption has the legal effect only of exempting matters and liability within the scope of force majeure. If force majeure and the debtor's conduct together constitute the cause of the damage, the liability for the loss shall be divided according to the principle of proportionality in the proportion of the effect of the two on the occurrence of the damage, and the defense of force majeure shall not be supported if it is based on the subjective reasons of the debtor and not affected by force majeure. In addition, there is a situation in which the contract of sale can continue to be performed, but because of the epidemic factors, resulting in the performance of the contract is obviously unfair, the seller can also claim a change of circumstances to request the court or arbitral tribunal to adjust the rights and obligations of the contract. In this regard, the Supreme People's Court issued<关于依法妥善审理涉新冠肺炎疫情民事案件若干问题的指导意见（二）>The notice has clear provisions, the author will not repeat here. 2. legal operation suggestions (I) Clause Design The new crown epidemic has highlighted the importance of the formulation of force majeure clauses in contracts, and it is recommended that enterprises summarize and revise the force majeure clauses in contracts in a timely manner. The scope and consequences of force majeure can be agreed in the contract, and the risks that may be encountered can be considered and excluded in the force majeure clause, depending on the characteristics of the industry, the business model and the market involved. (II) timely notification When the new crown epidemic affects the performance of the contract, the enterprise shall promptly notify the other party, the content of the notice may include the claim of force majeure, the time, scope and extent of the impact of the epidemic, and what mitigation measures have been taken. It should be noted that the notification is not once and for all. The company should continue to notify the other party of the relevant situation at the corresponding time node, so that the other party can obtain the necessary time to take measures to reduce the loss, otherwise it will expand part of the loss and may still be liable. (III) fixed evidence Enterprises affected by the epidemic shall provide proof within a reasonable period of time, and even if the proof cannot be provided in a timely manner due to force majeure, they shall fix the evidence and provide proof as soon as possible within a reasonable time after the effect of force majeure has been reduced or disappeared. The scope of the form of proof is relatively broad, and the obligation to provide proof is not absolute in law, such as the closure of the city measures and the initiation of a local response and other important events, can be inquired through the relevant channels. It is recommended that enterprises pay attention to the retention of proof documents of force majeure (such as government notices, announcements, etc.), the sending records of notices, the other party's approval of force majeure and measures taken to reduce the impact of force majeure, the enterprise itself due to the impact of the epidemic and its prevention and control measures to stop production and sales or the sharp increase in operating costs and other evidence materials, in a dispute between the two parties in a timely manner to obtain lawyers, legal counsel and other professionals. (IV) positive impairment Enterprises should take timely mitigation measures after the epidemic situation leads to failure to perform or knows that the contract is affected by the epidemic situation, such as timely notifying the other party and related parties to suspend investment in people, money and materials, negotiating to change the delivery method, extending the delivery period, timely handling of vulnerable and consumable subject matter, etc., so as to prevent the loss of the other party and other related parties from expanding and avoid increasing their own responsibilities. (V) classification assessment 1. Comprehensively review the various types of contract documents that are being performed and comprehensively assess the impact of the epidemic, especially on its own ability to perform and the ability of the counterparty to perform. Assess whether to continue to perform, change or terminate the contract in the light of your own business needs and actual conditions, and avoid a one-size-fits-all approach. 2. For contracts to be signed in the near future, full consideration should be given to the performance of the contract by the epidemic and the control of the epidemic, including but not limited to the time of performance, the policy requirements of local governments, the development trend of the epidemic, the nature of the commodity, the purpose of the transaction, and the possible impact. 3. Taking into account the recurrence of the new crown epidemic, it is recommended that the contract signed after the new crown epidemic should clearly agree on the new crown epidemic and its prevention and control measures as force majeure and assess its impact and consequences, and if it is really impossible to assess, a reasonable exemption clause and a relatively flexible agreement change and termination clause should be set. Attachment: Excerpts from Legal Provisions and Guiding Opinions of the Supreme Court the People's Republic of China Civil Code Article 590: "If one of the parties is unable to perform the contract due to force majeure, it shall be exempted from liability in part or in whole according to the effect of force majeure, unless otherwise provided by law." Article 563: "The parties may terminate the contract under any of the following circumstances: (1) the purpose of the contract cannot be achieved due to force majeure". (I) of the Guiding Opinions of the Supreme People's Court on Several Issues concerning the Proper Trial of Civil Cases Involving the COVID-19 Epidemic 3. properly hear contract dispute cases in accordance with the law. Unless otherwise agreed by the parties, when applying the law, the impact of the epidemic on different regions, different industries and different cases shall be comprehensively considered to accurately grasp the causal relationship between the epidemic or the epidemic prevention and control measures and the failure to perform the contract, and the following rules shall be followed for handling the cases of contract disputes arising from the direct impact of the epidemic or the epidemic prevention and control measures: If the contract cannot be performed as a direct result of the (I) of an epidemic or epidemic prevention and control measures, the provisions of force majeure shall be applied in accordance with the law, and the liability shall be partially or fully exempted according to the extent of the impact of the epidemic or epidemic prevention and control measures. If the parties are responsible for the failure to perform the contract or the expansion of the loss, they shall bear the corresponding liability in accordance with the law. If the parties claim that they have fulfilled their obligation of timely notification due to the epidemic situation or the epidemic prevention and control measures cannot fulfill their contractual obligations, they shall bear the corresponding burden of proof. If the (II) epidemic or epidemic prevention and control measures only lead to difficulties in the performance of the contract, the parties may renegotiate; if they can continue to perform, the people's court shall effectively strengthen the mediation work and actively guide the parties to continue to perform. If the parties request to terminate the contract on the grounds that it is difficult to perform the contract, the people's court shall not support it. If the continued performance of the contract is obviously unfair to a party, and its request to change the period of performance of the contract, the method of performance, the amount of the price, etc., the people's court shall decide whether to support it in the light of the actual circumstances of the case. If, after the contract is changed in accordance with the law, the parties still claim partial or total exemption from liability, the people's court shall not support it. If the purpose of the contract cannot be achieved due to the epidemic or the epidemic prevention and control measures, the people's court shall support the request of the parties to terminate the contract. (II) of the Guiding Opinions of the Supreme People's Court on Several Issues concerning the Proper Trial of Civil Cases Involving the COVID-19 Epidemic Trial of (I) contract cases 1. If the epidemic or epidemic prevention and control measures cause the parties to fail to perform the contract of sale and purchase in accordance with the agreed time limit or the cost of performance increases, the continued performance does not affect the realization of the purpose of the contract, and the parties request the termination of the contract, the people's court shall not support it. If the epidemic situation or epidemic prevention and control measures cause the seller to fail to complete the order or deliver the goods within the agreed time limit, and the buyer's contract purpose cannot be realized by continuing to perform, and the buyer requests to terminate the contract and return the advance payment or deposit that has been paid, the people's court shall support it; if the buyer requests the seller to bear the liability for breach of contract, the people's court shall not support it. 2. If the sales contract can continue to be performed, but the epidemic situation or epidemic prevention and control measures lead to a significant increase in labor, raw materials, logistics and other performance costs, or lead to a substantial price reduction of products, and it is obviously unfair to one party to continue to perform the contract. If the adversely affected party requests to adjust the price, the people's court shall adjust the price according to the actual situation of the case and in accordance with the principle of fairness. If the epidemic or epidemic prevention and control measures cause the seller to fail to deliver in accordance with the agreed time limit, or cause the buyer to fail to pay in accordance with the agreed time limit, and the parties request to change the time limit for performance, the people's court shall, in the light of the actual situation of the case, change the time limit for performance in accordance with the principle of fairness. If the contract has been changed by adjusting the price, changing the time limit for performance, etc., and the parties request the other party to bear the liability for breach of contract, the people's court shall not support it.</关于依法妥善审理涉新冠肺炎疫情民事案件若干问题的指导意见（二）>
2022-04-22
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The Status Quo and Negative Effects of 1. Impersonation Registration In recent years, in order to optimize the business environment in the market, the company registration authority has continued to promote the reform of the commercial system. The company registration mostly adopts a formal review system, allowing the shareholders of the company to not sign on the spot, but the entrusted agent to submit the materials on their behalf. The company registration authority will register when the submitted materials are complete and conform to the legal form. The simplification of the company registration system, coupled with the low cost of illegality and other reasons, has led to many cases of being falsely registered as company shareholders, legal representatives and senior executives, and the number of falsely registered cases is on the rise. In this regard, the impersonated person is prone to the following risks: (I) conflict with their real career If the impostor or his close relatives are public officials or engaged in other similar occupations, such personnel are often not allowed to work part-time in other companies. After they are falsely registered as shareholders, legal representatives, or senior executives of other companies, it will directly affect Appointment and removal of their positions. In view of the fact that most of the companies involved in the impostor registration are leather bag companies, if the company fails to make tax declaration according to law, the tax department will list the relevant personnel as abnormal personnel, which will directly lead to the restriction of the impostor's normal operation of the company or tax formalities. (II) creditors claim that shareholders are responsible for making up their capital contributions. Article 22 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "When the company's property is insufficient to pay off the debts, the creditor claims that the shareholders who have not paid their capital contributions, and other shareholders or promoters at the time of the establishment of the company If the company is jointly and severally liable for the company's debts within the scope of unpaid capital contributions, the people's court shall support it in accordance with the law". (III) creditors claim liability for shareholder liquidation obligations Article 18 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "Shareholders of a limited liability company, directors and controlling shareholders of a joint stock limited company fail to establish a liquidation group within the statutory time limit to start liquidation, resulting in The company's property is devalued, lost, damaged or lost, and the creditor claims that it is liable for compensation for the company's debts within the scope of the loss caused. The people's court shall support according to law". Analysis on the Difficulties of 2. Solving the Impersonation Registration by Lawsuit In view of the problem of being falsely registered as shareholders, legal representatives and senior executives of the company, some of the impostors choose to take litigation to protect their rights, that is, 1. file a civil lawsuit and request the people's court to confirm that they do not have the qualification of shareholders, or 2. file an administrative lawsuit and request the people's court to cancel the registration administrative act of the company registration authority. If an impostor brings a civil lawsuit, that is, a lawsuit for confirmation of shareholder qualification is filed on the grounds that the intention is not true. Although the defendant cannot provide effective counter-evidence in this case, if the registered company is involved in external debts or other responsibilities, such lawsuits often involve the protection of the reasonable trust interests of bona fide third parties, and the impostor may still bear the corresponding responsibilities of shareholders or senior executives. In addition, even if the court decides that the impersonated person does not have the qualification of shareholder, the company registration authority can only make a change of registration, rather than cancel the registration, which also means that the impersonated person still has the legal qualification of shareholder before, and should still bear the corresponding legal consequences. If an administrative lawsuit is filed by an impostor, the administrative organ claims to cancel the registration on the grounds that the administrative organ has not fulfilled its duty of careful examination when handling the registration. When responding to a lawsuit, the company registration department often submits that it only conducts a formal review of the application materials, and the applicant has promised in writing that the application materials are true and valid. Therefore, unless there are extreme typical situations such as the company registration authority and its staff knowing that the identity of the applicant for registration is not true and submitting false identity information materials, the people's court usually finds that the company registration authority has fulfilled its duty of careful examination, and it is difficult to find the violation of the law and thus revoke the corresponding registration. 3. the way of non-litigation settlement of false registration. In order to solve such problems, the State Administration of Market Supervision and Administration issued the "Guiding Opinions on Revoking the Fraudulent Use of Other People's Identity Information to Obtain Company Registration" (Guo Shi Jian Xin [2019] No. 128) in June 2019. Since then, the Regulations on the Administration of Registration of the People's Republic of China Market Entities and its Implementation Rules, which came into effect on March 1, 2022, have made detailed provisions. (I) legal provisions Article 40 of the Regulations on the Registration of the People's Republic of China Market Entities Where the registration of market entities is obtained by submitting false materials or concealing important facts by other fraudulent means, natural persons, legal persons and other organizations affected by the registration of false market entities may apply to the registration authority for cancellation of the registration of market entities. After accepting the application, the registration authority shall promptly conduct an investigation. If the investigation determines that there is a false market subject registration, the registration authority shall cancel the market subject registration. If the relevant market subjects and personnel are unable to contact or refuse to cooperate, the registration authority may publicize the registration time and registration items of the relevant market subjects to the public through the national enterprise credit information publicity system, and the publicity period is 45 days. If the relevant market subject and its interested parties do not raise any objection during the publicity period, the registration authority may cancel the registration of the market subject. The person directly responsible for the market subject whose registration has been canceled due to the false market subject registration shall not apply for the market subject registration again within 3 years from the date of cancellation of the market subject registration. The registration authority shall publicize it through the national enterprise credit information publicity system. Detailed Rules for the Implementation of the Regulations on the Administration of Registration of the People's Republic of China Market Entities Article 50 the registration authority may, on the basis of the application of the parties concerned or on its own initiative, investigate the acts suspected of submitting false materials or concealing important facts by other fraudulent means to obtain the registration of market entities. Article 51 Natural persons, legal persons and other organizations affected by false registration may apply to the registration authority for cancellation of the registration of market entities. For false registration suspected of fraudulent use of the identity of a natural person, the fraudulent user shall cooperate with the registration authority to verify the identity information through online or offline channels. If the registration authority of the market subject suspected of false registration is changed, the current registration authority shall be responsible for handling the cancellation of registration, and the original registration authority shall assist in the investigation. Article 52 After receiving the application, the registration authority shall make a decision on whether to accept the application within 3 working days and notify the applicant in writing. Under any of the following circumstances, the registration authority may reject the case: (I) false registration of suspected fraudulent use of the identity of a natural person, and the fraudulent use fails to pass the verification of identity information; (II) the market entity suspected of false registration has been canceled, except for the application for cancellation of registration; (III) other cases of inadmissibility according to law. Article 53 After accepting the application, the registration authority shall complete the investigation within three months and make a timely decision to revoke or not to revoke the registration of market entities. If the situation is complicated, it may be extended for 3 months with the approval of the person in charge of the registration authority. During the investigation period, if the relevant market entities and personnel are unable to contact or refuse to cooperate, the registration authority may publicize the registration time, registration items, and contact information of the registration authority of the suspected false registration market entity to the public through the national enterprise credit information publicity system. The publicity period is 45 days. If the relevant market subject and its interested parties do not raise any objection during the publicity period, the registration authority may cancel the registration of the market subject. Article 56 After the registration authority has made a decision to cancel the registration, it shall publicize it to the public through the national enterprise credit information publicity system. (II) specific recommendations To sum up, the author suggests that after the relevant personnel are found to be falsely registered as shareholders, legal representatives and senior executives of the company, they should give priority to non-litigation to solve the relevant problems. According to the relevant laws and regulations, the author has sorted out the relevant operating procedures: 1. After discovering the fact of being falsely registered, the relevant personnel shall promptly report to the police and submit an application for revocation to the registration authority; 2. The registration authority shall verify the identity information of the impostor, and the impostor shall cooperate with the submission of handwriting identification report, alarm record and other evidence; 3. The registration authority conducts an investigation of the person under investigation, the relevant personnel of the company, the registration agent or the interested party; 4. The registration authority solicits opinions from relevant departments such as public security, taxation, finance, human resources and social security; 5. After 45 days of investigation and identification of relevant facts or publicity, the registration authority may revoke the registration of market entities.
2022-04-22
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Point of View | Crime and Punishment of Epilepsy Patients Driving on the Road
If you are an epileptic, can you drive a car on the road? The answer is no! According to Article 15 of the regulations on the application and use of motor vehicle driver's license issued by the Ministry of public security, those who have organic heart disease, epilepsy, Meniere's disease, vertigo, hysteria, tremor paralysis, mental illness, dementia and neurological diseases affecting physical activities shall not apply for a motor vehicle driver's license. Epilepsy is a driving taboo disease, normally, epilepsy patients can not drive a vehicle on the road, but if an epilepsy patient drives a vehicle on the road, if unfortunately on the way epilepsy seizures, and caused certain harmful consequences, then whether it constitutes a crime, if it constitutes a crime, and how to punish it? Let's look at four cases first. Brief of the case Case one Liu Moumou obtained a U.S. driver's license while studying abroad in 2017. After returning to China, he applied for a driver's license from the traffic police department on May 9, 2018. Since June 2018, Liu Moumou has been to many hospitals for consultation due to multiple short-term amnesia, general convulsions and other symptoms. During this period, he became ill while driving on November 9, 2018, causing the vehicle to lose control and causing a traffic accident. In December 2018, Liu Moumou was diagnosed with epilepsy. Since then, he has taken medication, but he still has seizures until the incident. At about 19:00 on May 16, 2019, Liu Moumou became ill again while driving out, and the vehicle lost control. First, he crashed into the crowd waiting for the signal light on the safety island in the middle of the intersection, and then crashed into two motor vehicles waiting for the signal light in the opposite direction., Resulting in three deaths, one serious injury, five minor injuries, and two minor injuries, three cars, four electric bicycles, a bicycle and municipal transportation facilities were damaged with a value of 125897 yuan. After the accident, Liu Moumou remained in the car that caused the accident. The owner of the car who was hit came forward to remind him to turn off the engine. Liu Moumou did not respond. After that, Liu Moumou gradually became conscious and got off the bus. He called 120 Emergency Center when reminded by others. Case II 1. At about 11 o'clock on December 5, 2009, Li Mougui had an epileptic seizure while driving an off-road vehicle without a license. The vehicle he was driving lost control and collided with three vehicles successively, and then rushed into the sidewalk on the east side of the road. Damaged electric vehicles and protective fences on the roadside. After identification: Wang Moujia and Yue Mou's human body injuries were minor injuries, and Li Mou's human body injuries were minor injuries, causing a total of 44492.90 yuan in direct economic losses. 2. At about 19:00 on August 11, 2011, Li Mougui drove a car without a license and had an epileptic seizure on the highway. The vehicle he was driving lost control and collided with the middle guardrail of the highway. Defendant Li Mougui lost 85290 yuan for the vehicle he was driving and 8800 yuan for the guardrail fee in the middle of the expressway. 3. At about 15:00 on September 28, 2012, Li Mougui had an epileptic seizure while driving a small passenger car without a license. The vehicle he was driving lost control and collided with three vehicles successively, causing damage to the three vehicles to varying degrees. Passengers Zhang and Pu were injured, and Li Chungui himself was slightly injured. The direct economic loss was identified as 11960 yuan. Case three In 1998, Zuo applied for a motor vehicle driver's license with a permitted driving type A. In February 2012, the left army was diagnosed with epilepsy by the hospital. In July of the same year, when the driver's license was reviewed, he concealed his illness, deceived the public security organs, and renewed his driver's license. In January 2014 he was again hospitalized for epilepsy. At about 15:00 on May 1 of the same year, when Zuo Moujun was driving a car (carrying his wife and brother) on the road in the city, he had a sudden seizure of epilepsy, causing the vehicle to crash into pedestrians due to loss of control, resulting in 4 deaths and 8 people. A major traffic accident with varying degrees of injury. Case four At about 20 o'clock on February 28, 2019, Tian Mouhong was driving a small ordinary passenger car. On the way, an epileptic seizure caused the vehicle to lose control. It successively collided with the bicycle in the riding and the car in the driving, and caused the cyclist to be rescued. The invalid death, the co-passengers of the car were injured, and the three cars were damaged. Question 1: Do the above four epilepsy patients have criminal responsibility in the case? Epilepsy is a type of driving contraindicated disease. According to the regulations, people with epilepsy are not allowed to apply for a driver's license, and those who have applied for a driver's license are not allowed to drive a motor vehicle after determining that they have epilepsy, and should apply for cancellation of the driver's license. The driving qualification and driving behavior of patients with driving contraindications are mainly based on the fact that patients cannot control the onset time and consequences of their own diseases autonomously, and driving motor vehicles on the road is highly dangerous to public safety. Therefore, in terms of the ability to identify the criminal responsibility, the perpetrator of the crime began to start driving the vehicle illegally, so the identification of its criminal responsibility should be based on its ability to identify and control the vehicle when it began to drive illegally, and the perpetrator's illness in the process of committing the crime does not affect the identification of its criminal responsibility. In the above four cases, all the actors have been diagnosed as patients with driving contraindication diseases before the crime. They have normal identification and control ability when driving motor vehicles on the road. They have the ability to understand and choose the results of endangering public safety due to their own diseases at any time. Their ability to identify and control will be weakened or lost due to the onset at any time, which will cause high danger to public safety, it is the result of free choice when it violates the driving taboo, and it shall bear the corresponding criminal responsibility for the occurrence of the result. Referee result The above four cases are all from the public cases of Chinese judicial documents. In case one, the court held that Liu Moumou was not allowed to drive a motor vehicle knowing that he had epilepsy, and when a traffic accident had occurred, he drove a motor vehicle on the road. The seizure caused the vehicle to lose control and collide with pedestrians and vehicles, causing three deaths and eight injuries, and the serious consequences of damage to related vehicles and traffic facilities, his behavior constituted the crime of endangering public security by dangerous means. The court sentenced Liu to 13 years' imprisonment after comprehensively considering Liu's surrender, compensation and understanding, and confession. The court in case 2 held that Li mougui, knowing that he was suffering from epilepsy and was not qualified to drive, still drove a motor vehicle three times, causing two minor injuries, one minor injury, direct economic loss of 44492.90 yuan, vehicle loss of 85290 yuan, loss of 8800 yuan of highway intermediate guardrail fee and damage of multiple vehicles, two bus passengers and direct economic loss of 11960 yuan, His behavior is enough to endanger public safety, it has constituted the crime of endangering public security by dangerous means. Considering the circumstances of his confession and compensation, Liu was sentenced to four years' imprisonment. In case 3, the court held that Zuo Moujun violated traffic and transportation management regulations and caused a major traffic accident that caused 4 deaths and 8 injuries. His behavior constituted a traffic accident crime and was sentenced to seven years in prison. In case 4, the procuratorate prosecuted the crime of endangering public security by dangerous means. After trial, the court held that the crime of endangering public security by dangerous means was an intentional crime, and Tian Mouhong did not have the subjective intention to pursue the result of the crime or allow the result of the crime to occur, which did not meet the constitutive requirements of the crime. Tian Mouhong violated the traffic and transportation management regulations and caused a major accident that caused the death of one person. He should be identified as a traffic accident crime. Based on his confession and compensation understanding, he was sentenced to one year and six months in prison. Question 2: The same epilepsy patients have a traffic accident while driving on the road. Why are the charges different and the penalties are also quite different. Are there different sentences in the same case, or are the facts of the case really different? From the two charges involved in the analysis. The crime of endangering public safety by dangerous means refers to the act of endangering public safety by using other dangerous methods equivalent to the danger of fire prevention, throwing dangerous substances, breaking water and explosion methods. The legal interest violated by this crime is the safety of the lives and property of the unspecified majority, which belongs to the crime of endangering public security. The crime of causing traffic accidents refers to the act of violating traffic and transportation management laws and regulations, resulting in a major traffic accident, causing serious injury or death, or causing heavy losses to public and private property. The crime also has the characteristics of endangering the unspecified majority. Specifically in the above four cases, the perpetrator knew that he had epilepsy, and he also knew that he was not allowed to drive on the road with epilepsy. That is, the perpetrators in the four cases were aware of the violation of traffic rules. However, the crime of endangering public safety in a dangerous way is an intentional crime, that is, the perpetrator knows that he has epilepsy and drives on the road, which may cause harm to the society, but he still drives on the road and allows the result of endangering the society to occur. The crime requires that the perpetrator is subjectively indirect and intentional. The crime of causing traffic accidents is a crime of negligence. The perpetrator violates traffic rules intentionally. He foresees the possible harmful consequences of doing so, but he is too confident and credulous to avoid it. Therefore, in order to find out the reasons for the different sentences in the above four cases, it is necessary to further analyze whether the subjective guilt of the perpetrator is indirect intentional or overconfident negligence. From the actor's subjective guilt analysis. According to the provisions of articles 14 and 15 of the criminal law of our country, it is an intentional crime to know that one's own behavior will have the result of endangering the society, and hope or allow such result to occur, thus constituting a crime. It is a negligent crime to foresee the possible result of one's own behavior that is harmful to the society. If one does not foresee it due to carelessness, or if one has foreseen it and believes it can be avoided, such a result. Among them, it is difficult to accurately distinguish between the intentional crime of allowing the harmful result to occur (indirect intention) and the negligent crime of credulity to avoid (overconfidence). In terms of cognitive factors, the doer knows that his behavior will cause harm to the society. In terms of volitional factors, the doer does not hope and pursue the social result of his behavior, the main difference is that the former is laissez-faire and the latter is opposed. In case one, Liu, as an adult with a higher education level, has normal cognitive ability. His confession knows that he has epilepsy. When the frequency of onset is high, it is once every two or three days, and when it is low, it is once every ten days. When the onset of the disease will suddenly lose consciousness, sometimes hallucinations, auditory hallucinations, there have been traffic accidents before the incident. Judging from Liu Moumou's confession and previous driving experience, Liu Moumou is not sure about the incidence of his forbidden driving disease and knows that he cannot control the consequences of the disease. He argues that he has a fluke mentality to drive, which does not rule out his laissez-faire mentality of resignation to the consequences of his behavior. In case 2, Li Mougui suffered from epilepsy for many years and could not be cured. He drove on the road without a license for many times, and had three seizures while driving without a license and caused accidents. People with common sense of life and driving experience know that epilepsy is a kind of nervous system seizure disease. The symptoms of epilepsy can be manifested as short-term disturbance of consciousness, and severe as systemic muscle twitching and loss of consciousness, which will cause the patient to lose consciousness and behavior ability for a period of time. Epilepsy is sudden, unpredictable and uncontrollable, and the probability of onset is high before it is completely cured. Patients may get sick at any time when driving a motor vehicle on the road, and once they get sick, they will lose control of the motor vehicle. the result of endangering public safety (dangerous or real harm) will be inevitable. Li Mougui knew that he had frequent seizures, and he had a precedent of seizures on the way before, but he still did not learn a lesson, which shows that he subjectively holds a laissez-faire attitude towards the possible harmful consequences. In the third case, Zuo Moujun concealed epilepsy, deceived the review agency, and renewed the motor vehicle driver's license during the motor vehicle driver's license review, which violated administrative regulations. But it has no precedent for driving while driving, and has been taking anti-epileptic drugs. Therefore, in terms of probability, the possibility of Zuo Moujun's sudden epilepsy while driving is very low, and it is not an administrative illegal act that will cause harmful consequences with a high probability. In addition, Zuo Moujun was hospitalized many times before the incident and has been taking antiepileptic drugs. The treatment has achieved certain results. Combined with the precedent that he has never had an epileptic seizure while driving before, he took his wife and brother on this trip. It can be presumed that Zuo Moujun's opposition to the occurrence of harmful results is both objective reality and customary thinking, and subjectively belongs to the fault of overconfidence. In case 4, Tian Mouhong suffered from epilepsy. After a period of hospitalization before the incident, good results have been achieved. When he was discharged from the hospital, the doctor did not require him to take the medicine on time. But out of caution, Tian Mouhong took the medicine every once in a while for a few days. Before this Tian a red drive has never had a seizure. The prosecutor accused Tian Mouhong of "driving after knowing that he had epilepsy that hindered driving qualifications and stopped taking drugs without authorization", but the court held that the case proved that Tian Mouhong knew that he had epilepsy and drove a motor vehicle without authorization. Insufficient evidence, and then believe that Tian Mouhong does not have the subjective intention to pursue the result of the crime or allow the result of the crime to occur, and does not meet the constitutive elements of the crime of endangering public safety by dangerous methods. A number of major criminal cases have occurred in this case due to the onset of driving contraindications. I would like to remind people suffering from driving taboo diseases not to be lucky and blindly confident. Once a traffic accident occurs, it will eventually harm others and themselves.
2022-04-21
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1. issues raised Affected by multiple factors such as rising raw material prices in the international market, domestic and foreign epidemics, and world energy shortages, the price of building materials has risen sharply, which has a significant impact on the performance of construction contracts? 2. relevant referee views (I) the contract stipulates that "market price fluctuations do not adjust the contract price", the contractor shall consider the market environment of construction materials and commercial risk factors such as price changes when bidding or signing a contract. If the price increase of materials does not exceed the peak market price, the principle of change of circumstances is not applicable, and the risk of material price increase shall be borne by the contractor. Case: Chongqing Construction Engineering Group Co., Ltd. and Chongqing Rongchang District Rongxin Environmental Protection Industry Development Co., Ltd. (Supreme People's Court [2019] Supreme Law Minshen No. 5829 Civil Ruling) The court held that the question of whether Article 11.1 of the Special Provisions of the Construction Contract for Construction Projects should be changed. Chongqing Construction Engineering Group believes that in this case, according to the principle of change of circumstances and the relevant provisions of the competent authorities, the part of the price increase of more than 5% should be adjusted to be borne by Rongxin Environmental Protection Company. In the opinion of the Court, Article 11.1 of the Special Terms of the Construction Contract for Construction Projects stipulates that market price fluctuations do not adjust the contract price, I .e. the risk of market price increases is borne by Chongqing Construction Engineering Group. After the contract was signed, the market price did rise due to changes in policy or market environment. However, as a professional and rational construction enterprise, Chongqing Construction Engineering Group submitted a bid to Rongxin Environmental Protection Company after carefully studying all the contents of the bidding documents and comprehensively considering the corresponding commercial risks and cost changes, under the premise of knowing that the project involved in the case is limited to 0.15 billion yuan, it should include the market environment and price changes of building materials as the commercial risk factors that should be considered in whether and how to bid. Article 26 of the (II) of Interpretation of the Supreme People's Court on the Application of Several Issues is a provision on the principle of change of circumstances in contract law. The objective situation emphasized in this article is that the parties cannot foresee at the time of conclusion of the contract and are not non-commercial risks caused by force majeure. Continued performance will be obviously unfair to one party or fail to realize the purpose of the contract, in this case, the increase in the price of construction materials should be a commercial risk that Chongqing Construction Engineering Group should reasonably foresee when bidding and signing the contract, and the increase did not exceed the peak market price, so the provisions of Article 26 of the (II) of Interpretation of the Supreme People's Court on the Application of Certain Issues shall not apply. (II) the contract stipulates that "the contract price will not be adjusted during the construction period", during the construction process, the price of materials will rise due to the adjustment of the national macro policy, and the relevant government departments notify the construction enterprise to make appropriate compensation with reference to the market price at the time of bidding and the price at the time of contract settlement. The notice is not mandatory and cannot be the basis for breaking through the contract. The risk of price increase shall be borne by the contractor. Case: China 13th Metallurgical Construction Co., Ltd. and Shaanxi Huangyan Expressway Co., Ltd. Construction Contract Dispute (Supreme People's Court [2018] Supreme Court Civil Judgment No. 380) The court held that whether the claim of 4154868 yuan for material and freight adjustment by XIII Metallurgical Company should be supported. As for the part of the appraisal opinion that the loss amount of material and freight adjustment is 4154868 yuan, the 13th Metallurgical Company claims that the price of material and freight will rise during the construction period, which belongs to the situation change stipulated by law and should be adjusted. In this case, relative to the total amount of project funds agreed by the parties in the contract, there is no sufficient evidence to prove that the range of changes in the freight prices of self-purchased steel, fuel and self-purchased materials during the construction period has reached a level that the parties could not foresee at the time of the conclusion of the contract, and does not constitute the Supreme People's Court on the application of<中华人民共和国合同法>Article 26 of the (II) for Interpretation of Certain Issues "After the establishment of the contract, the objective circumstances have undergone major changes that the parties could not foresee at the time of the conclusion of the contract and were not caused by force majeure and did not belong to commercial risks. If the parties request the people's court to modify or terminate the contract, the people's court shall, in accordance with the principle of fairness, and in the light of the actual situation of the case to determine whether to change or lift the circumstances of the change of circumstances. The general terms and conditions of the Contract Agreement signed between Huang Yan Company and Thirteen Metallurgical Company 70.1 stipulate that the fluctuation of labor, mechanical construction and material prices shall not be considered during the execution of the contract, I .e. the contract price shall not be adjusted during the construction period. During the construction of this project, due to the increase in steel prices caused by the adjustment of the national macro policy, the Shaanxi Provincial Department of Communications notified that for the construction in progress signed before the end of May 2003, the construction enterprise can be appropriately compensated according to the unit price of the contract and the actual implementation of the contract, referring to the market price at the time of bidding and the price at the time of contract settlement. On January 23, 2010, Huang Yan Company, in accordance with the notice spirit of Shaanxi Provincial Communications Department, decided at a special meeting of Huang Yan Company to compensate for the difference of 1415287.55 yuan in the price of self-purchased section steel in the HY-8 contract section. The first-instance judgment found that XIII Metallurgical Company could not use the notice as the basis to break through the contract and require Huang Yan Company to bear the loss of material price increases. Therefore, the appeal claimed by the 13th Metallurgical Company for Huang Yan Company to pay 4154868 yuan for materials and freight adjustment cannot be established, and the court will not support it. The agreement of the (III) construction contract on the risk of material price fluctuations during the normal construction period does not apply to the adjustment of material payments during the period of delay caused by the contractor, and the risk of material price increase during the period of delay caused by the contractor shall be borne by the contractor. Case: Erdos Municipal Transportation Bureau and Erdos along the Yellow River High-grade Highway Construction and Development Co., Ltd. (Supreme People's Court [2019] Supreme Law Minshen No. 5628 Civil Ruling) The court held that: whether there is a factual basis for the original court's determination that the Transportation Bureau and the company along the Yellow River are responsible for the increase in the price of construction materials and the increase in costs caused by the delay in the construction period. The original trial found that the construction period was delayed due to the transportation bureau and the company along the Yellow River, and the delay also brought about an increase in the cost of engineering materials of the top five companies. The original trial court found that the transportation bureau and the company along the Yellow River were responsible for the increase in the price and cost of construction materials caused by the delay in the construction period, which is based on facts. In addition, although the Bidding Document provides an agreement on the risk of material price fluctuation during the normal construction period, the agreement does not apply to the adjustment of material payment during the delay of the construction period caused by the Employer. It is obviously against fairness and logic to adjust the expansion of losses caused by unilateral breach of contract by the reasonable risk burden agreement that both parties can expect; the Transportation Bureau and Yanhuang Company have no evidence to prove that they have paid the materials in full to the actual constructor or contractor before the construction period is delayed due to their own reasons. The one-time full payment is not in line with the trading habits of the construction industry. The Transportation Bureau and Yanhuang Company claim that they should not bear the increased cost of materials caused by the delay in the construction period on the grounds that they have already paid the materials, which has no factual basis. (IV) the construction contract stipulates that the settlement shall be based on the facts, and if both the contractor and the contractor are at fault for the extension of the construction period, they shall each bear the fault liability in proportion to the loss of the material increase. Case: Jinan Changxing Construction Group Co., Ltd. and Zibo Yinuo Real Estate Development Co., Ltd. Dispute over Construction Contract (Shandong Higher People's Court [2020] Lu Min Zhong No. 2563 Civil Judgment) The court held that: on the issue of whether the first instance court's determination of the loss of material rise is correct. ...... During the construction of the project involved in the case, Yino Company had the problem of defaulting on the project payment, and Changxing Company also had the problem of insufficient construction personnel and mid-way exit. Both parties were at fault for the increase in materials caused by the delay of the project involved in the case, and the court of first instance found that both parties were each responsible for 50% of the loss of the increase in materials, which was in line with the actual project involved in the case. (V) the construction contract stipulates that the price of materials increases by a certain percentage and can be adjusted according to the facts, if the contractor can provide evidence, the contractor may request the contractor to bear the burden. Case: Dispute over Construction Contract between Shandong Liaojian Group Co., Ltd. and Shandong Liaocheng Zhongjusaida Real Estate Development Co., Ltd. (Shandong Higher People's Court [2014] Lu Min Yizong Zi No. 50 Civil Judgment) The court held that the settlement report submitted by Liaojian Group Company was in accordance with the contract. According to the provisions of Articles 23.2 and 23.3 of the special terms of the contract, the price of construction materials in the contract price involved can be adjusted according to the facts if the price increases by more than 5%. The policy adjustment documents and relevant regulations during the construction period can be applied. In the process of contract performance in 2010 and 2011, labor and material costs increased significantly, and the government made policy adjustments to labor costs. The adjustment of the actual labor and material costs in the settlement report of Liaojian Group Company has a contractual basis as well as a factual basis. Although the bidding documents stipulate that the construction measure fee will be covered in one lump sum and will not be adjusted during settlement, as the labor and material fees stipulated in the contract can be adjusted according to the facts, the increase in labor and material fees directly affects the measure fee. Under the condition that the labor and material fees can be adjusted according to the facts, the measure fee cannot be covered in one lump sum and should be adjusted accordingly during settlement. In the process of contract performance, Zhongju Saida Company subcontracted a large number of projects, the failure to pay the project progress payment in time leads to the extension of the construction period, increasing the measure cost and labor cost; in the case of fundamental changes in the construction market, only the actual adjustment can ensure that the measure fee is not lower than the cost, that is to say, the settlement report adjusts the measure fee, which has factual basis and contract basis. 3. Summary 1, material prices rise is the result of the law of the market, generally does not belong to the situation change. Article 533 of the Civil Code of the People's Republic of China stipulates that "after the establishment of the contract, the basic conditions of the contract have undergone major changes that the parties could not foresee at the time of the conclusion of the contract and do not belong to commercial risks. If the continued performance of the contract is obviously unfair to one of the parties, the adversely affected party may renegotiate with the other party. If the negotiation fails within a reasonable period of time, the parties may request the people's court or the arbitration institution to modify or terminate the contract. The people's court or arbitration institution shall, in the light of the actual circumstances of the case, modify or terminate the contract in accordance with the principle of fairness." The application of this article requires a strict distinction between changes in circumstances and commercial risks, which are inherent in the conduct of commercial activities, such as changes in supply and demand, price increases and decreases that have not yet reached an abnormal level of change, and risks inherent in non-market systems that the parties could not foresee at the time of contracting. The Notice of the Supreme People's Court on the Interpretation of Several Issues Concerning the Correct Application of the the People's Republic of China Contract Law (II) Serving the Overall Work of the Party and the State clearly stipulates that the court should correctly understand and carefully apply the change of situation. If it really needs to be applied in a case, it should be reviewed by the Higher People's Court and reported to the Supreme People's Court for review when necessary. 2. In the case of a commercial risk, the assumption of the risk depends on the agreement of the construction contract and the construction facts. If the price of materials fluctuates during the construction period in a fixed lump sum contract or the contract stipulates that the contract price is not adjusted, and there is no delay in the construction period due to the employer, the risk shall be borne by the contractor; if the construction period is delayed due to the employer and the price of materials rises during the construction period, the contractor shall provide evidence to prove that the risk of material price rising during the construction period delay shall be borne by the employer; if both the employer and the contractor are at fault for the contractor, the risk of material price increase during the delay of the construction period shall be borne by both parties in proportion to the degree of fault, and if the contract price can be adjusted according to the facts after the material price increases as stipulated in the construction contract, the contractor shall provide evidence to claim to the contractor. 4. Risk Alert Our lawyers believe that the construction period of the construction project is long and there are indeed many uncertain factors. Under the current situation that most of the construction contracts are fixed total price contracts or fixed comprehensive unit price contracts, the employer should carefully perform its contractual obligations to avoid the risk of unnecessary losses due to the delay of the construction period caused by its own actions. In the face of the payment of the project funds beyond the contract stipulated by the contractor due to the increase in material prices, it can have a benign communication with the contractor, the Contractor shall fully consider the possible risks in the contract performance during the bidding stage or contract signing stage, and reasonably determine the contract quotation to deal with the risks caused by the increase of material prices during the construction process, during the construction process, the contractor can strengthen the management of visa claims, and actively communicate with the contractor when the price of the main materials rises sharply, and strive to make a supplementary agreement on the sharing of the costs arising from the increase in the price of materials.</中华人民共和国合同法>
2022-04-21
18
2022-04
The Standing Committee of Jinan Municipal People's Congress just issued the "Jinan City Property Management Regulations" (hereinafter referred to as the regulations) on March 30, 2022, which will come into force on May 1, 2022. As the saying goes, every family has a difficult book to read. A residential community is composed of every household, especially in the autonomous management and property services of the community, it is difficult to read and do things. The regulations promulgated this time set out "rules" for the autonomous management of the community, and gave a solution to the contradiction between the property service person and the owner. While setting new regulations and breaking difficult problems, property service providers should pay more attention to the provisions of the regulations on community management regulations and rules of procedure of the owners' assembly, so as to avoid omissions in the community management regulations and rules of procedure of the owners' assembly, which will affect the signing of property service contracts and generate business risks for property service providers. The principle of autonomous management of 1. communities should be reflected in the rules of procedure for the decisions of the owners' assembly and need not be regulated in the interim management statute or management statute. Paragraph 6 of Article 22 of the regulations stipulates that whether the voting rights of owners who do not participate in voting are included in the majority of votes already voted shall be stipulated by the temporary management statute or the management statute. The author believes that there are the following problems: Statistics on the number of (I) voting rights are not matters stipulated in the interim management statute or management statute. According to Article 17 of the State Council's "Property Management Regulations", "The management regulations shall have an impact on the use, maintenance and management of the property concerned, the common interests of the owners, and the obligations that the owners shall perform, the responsibilities and other matters that should be undertaken in violation of the management regulations shall be agreed in accordance with the law", Article 18 "The rules of procedure of the owners' meeting shall stipulate the discussion methods, voting procedures, the composition of the owners' committee and the term of office of the members of the owners' meeting" and Article 22 "The construction unit shall formulate temporary management regulations before selling the property to use, maintain and manage the property and the common interests of the owners, the obligations that the owners should perform, the responsibilities that should be assumed in violation of the provisional management statute and other matters shall be agreed upon in accordance with the law, and whether the voting rights are included in the majority of the votes that have been voted shall fall within the scope of the adjustment of the rules of procedure of the owners' meeting, rather than by the provisional management statute or the management statute. At the same time, the "Property Management Regulations" did not make corresponding provisions on "voting rights statistics. The (II) is inconsistent with the "Guiding Rules for Owners' Assembly and Owners' Committee" issued by the Ministry of Housing and Urban-Rural Development [2009] No. 274. The second paragraph of Article 26 of the "Guiding Rules for the Owners' Assembly and the Owners' Committee" stipulates that "Whether the voting rights of the owners who have not participated in the voting can be included in the majority of the voted votes shall be stipulated by the management regulations or the rules of procedure of the owners' assembly." This is obviously a general clause, but it is still valid at present and does not violate the State Council's "Property Management Regulations." The (III) "Shandong Province Property Management Regulations" was revised on December 3, 2021, and directly deleted the provisions on voting rights statistics. The second paragraph of Article 34 of the original "Shandong Province Property Management Regulations" implemented on May 1, 2009 once stipulated that "whether the voting rights of owners who do not participate in voting are included in the majority of votes already voted shall be stipulated by the management statute or the temporary management statute". However, after the regulation was revised on December 3, 2021, it directly deleted "whether the voting rights of owners who do not participate in voting are included in the majority of votes already voted, provided for by the Management Statute or the Interim Management Statute". (IV) of whether to provide for "voting rights statistics", the practice varies from place to place, but there is no provision for "by the interim management statute or management statute". Article 278 of the Civil Code clearly stipulates the legal proportion of owners' participation in voting on matters decided jointly, and does not stipulate the statistics of voting rights. Compared with the property management regulations in Beijing, Shanghai, Guangzhou, Shenzhen and other places, there is no provision for voting rights statistics. Regarding the provisions of voting rights statistics, the author believes that its role is to ensure the smooth progress of the voting procedures of the owners' meeting, and to prevent the occurrence of matters that must be voted by the owners' meeting but do not reach the statutory voting ratio, and fall into a long-term dilemma, which harms the owners. rights and interests. However, it is also clear that it is necessary for localities to take into account local conditions and to be regulated in detail by local regulations. In summary, the author believes that appropriate additions and adjustments should be made to improve the regulations: 1. In order to ensure that the Jinan property Management regulations comply with the relevant provisions of the the People's Republic of China Civil Code, the property Management regulations, the guiding rules of the owners' Congress and the owners' Committee and the property Management regulations of Shandong Province, it is suggested that the sixth paragraph of Article 22 of the regulations be amended as follows: if the meeting of the owners' assembly involves matters jointly decided by the owners, the voting votes shall be delivered to each owner. The voting shall be conducted in accordance with the provisions of Articles 18, 19 and 20 of these Regulations. Whether the voting rights of the owners who do not participate in the voting shall be included in the majority of votes voted shall be stipulated by the rules of procedure of the owners' meeting. 2. For residential communities that have not established a general meeting of owners, the property service providers in the early stage strengthened their contacts with sub-district offices, neighborhood committees, and construction units, and put forward reasonable suggestions for the draft temporary management regulations of the community and the draft rules of procedure of the general meeting of owners of the community, and added "voting rights" "Statistics" clause. 3, for the establishment of the owners' meeting of the residential community, see the selected property service personnel should focus on understanding the community management regulations and the rules of procedure of the owners' meeting. For those who do not agree on the "voting rights statistics" clause, put forward reasonable suggestions to the owners' committee, increase the topic content of the owners' meeting, improve the rules of procedure of the owners' meeting "voting rights statistics", and vote whether to agree with the property service provider to provide services to the community.
2022-04-18
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
