Viewpoint | Effective Defense ---- Doubts not to prosecute

Doubt not to prosecute, also known as insufficient evidence not to prosecute. In a fraud case handled by the author, the procuratorial organ strictly controlled the evidence and did not prosecute the case for insufficient evidence-that is, no prosecution in doubt. 1. brief After investigation, it was found that 11 people, including Liu Moumou and Wang Moumou, premeditated to purchase waste aluminum plates from a certain color printing company. They cheated the color printing company by tampering with the weighbridge and agreed to share the stolen money equally among 11 people. On December 20, 2019, 11 people including Liu Moumou drove to the vicinity of the color printing company, and Liu Moumou went to the color printing company to discuss the purchase of waste aluminum plates. After negotiation, the purchase price was 18000 yuan per ton. The next day, Liu Moumou came to pull the goods. Liu Moumou and his three men went to the weighing place near the color printing company and agreed with the weighbridge owner to give the weighbridge owner 4000 yuan a benefit fee. The weighbridge owner agreed that they should install cheating equipment on the weighbridge electronic display. The next day to the color printing company after loading to the weighbridge weighing. When weighing, Wang Moumou and others used the remote control to control the electronic display of the weighbridge, weighing 8 tons, and should pay 144000 yuan for the goods. Liu Moumou and others asked for cash payment. The color printing company asked for the goods to be deposited into the company's account. The company accountant accompanied Liu Moumou and others to deposit in the bank. During this period, Liu Moumou and others urged the truck driver to leave as soon as possible. The truck driver drove not far away and was intercepted by the color printing company. At 13: 00 on the same day, the color printing company took the truck driver to the weighing place to weigh. Wang mou used the remote controller to control the weighing scale again, and the weighing was still about 8 tons. after the weighing was completed, the color printing company still refused to let the truck driver drive away. Liu and others worried about the incident fled the scene. On the third day, it was re-weighed, showing that the weight of the goods in the car was 24.44 tons, and the difference between the two days was 16.44 tons. According to the price determination center, the market recovery price of waste aluminum plates was 9000 yuan per ton. Therefore, it was determined that the amount of fraud by Liu Moumou and others was 75960 yuan. According to the personnel of the color printing company, Liu Moumou and others bought waste aluminum plates from the color printing company before. Because Liu Moumou and others were suspected of cheating in weighing, the color printing company has been trying to settle accounts with Liu Moumou and others. This time Liu Moumou and others contacted again. The color printing company wanted to quietly use this transaction to expose Liu Moumou and others and recover the losses. Therefore, the above transaction process was established. After the case, Liu and others reached a compensation understanding agreement with the injured unit with several times the amount of compensation involved. To sum up, it is determined that the behavior of 11 people including Liu Moumou has violated Article 266 of the the People's Republic of China Criminal Law, suspected of fraud, and transferred for review and prosecution. 2. processing results Liu Moumou, who was not prosecuted, did not meet the conditions for prosecution. According to the provisions of Article 175, paragraph 4, of the Criminal Procedure Law, it was decided not to prosecute Liu Moumou. 3. case analysis The defender pointed out that the "Prosecution Opinion" found that 11 people including Liu Moumou had defrauded 75960 yuan, and the facts of the crime amount were unclear and the evidence was insufficient. The weight of the goods involved is in doubt, and there is great uncertainty in the determination of the amount of crime. The investigation organ in this case weighed the difference between December 21, 2019 and December 22, 2019 as the number of crimes. However, the evidence in the volume cannot prove that the goods involved in the case maintained identity and fixity in multiple weighings, and cannot guarantee the certainty of the calculation of the amount involved when the weight difference cannot be confirmed to be certain. The testimony of the employees of the color printing company and the truck driver both confirmed that after the truck driver was intercepted and returned to the color printing company on December 21, 2019, the truck driver stopped for dinner, during which the vehicle involved was placed in the courtyard of the color printing company, and the rear truck driver parked the vehicle in front of the office building of the color printing company under the supervision of the staff of the color printing company. until the morning of December 22, 2019, 2019, the vehicle and goods involved were weighed for the third time. Therefore, from December 21, 2019 when the truck driver went out to eat to the morning of December 22, 2019, the vehicles and goods involved in the case were parked in the hospital of the victimized company and were left unattended. The color printing company did not provide surveillance video to confirm the storage of the vehicles and goods involved in the case. Although two employees confirmed that the goods in the vehicle had not been moved, there was no objective evidence to support it. In addition, the two witnesses are employees of the victimized company and have an interest in the case. Their testimony is highly subjective, and their objectivity and authenticity are in doubt. Therefore, the facts of the determination of the amount of the crime are unclear and the evidence is insufficient. If reasonable doubt cannot be ruled out, the evidence is in doubt, and an explanation should be made in favor of the defendant. It is suggested that Liu Moumou should not be prosecuted. 4. the legal provisions of "no prosecution in doubt" Doubt not to prosecute means that the procuratorial organ may make a decision not to prosecute if it still considers that the evidence is insufficient and does not meet the conditions for prosecution after supplementary investigation. Article 175, paragraph 4, of the Criminal procedure Law stipulates that if the people's Procuratorate still considers that the evidence is insufficient and does not meet the conditions for prosecution for the second supplementary investigation, it shall make a decision not to prosecute. After two supplementary investigations, the case has one of the following circumstances. If it cannot be determined that the criminal suspect constitutes a crime and needs to be investigated for criminal responsibility, it is insufficient evidence and does not meet the conditions for prosecution. 1. The evidence based on which the verdict is in doubt and cannot be verified. 2. The facts of the constituent elements of the crime lack the necessary evidence to prove it. Contradictions between the evidences cannot be reasonably excluded. 4. The conclusion based on the evidence has other possibilities and cannot be ruled out.

2022-04-18

Real estate perspective: "Jinan City Property Management Regulations" highlights of the interpretation.

Introduction The "Jinan City Property Management Regulations" was adopted by the 25th meeting of the Standing Committee of the 17th People's Congress of Jinan City on February 24, 2022, and was approved by the 13th Shandong Province on March 30, 2022 Approved at the 34th meeting of the Standing Committee of the People's Congress, it has now been promulgated and will come into force on May 1, 2022. The "Jinan City Property Management Regulations" (hereinafter referred to as the "Regulations") is not a sewing and mending of the "Jinan City Property Management Measures" (hereinafter referred to as the "Measures"), but in the "the People's Republic of China Civil Code" and the State Council "Property Management Regulations" Under the guidance of the "Shandong Province Property Management Regulations", combined with the actual situation of Jinan City, a new regulation has been made for the property management of Jinan City. The "Regulations" have strong operability and respond to many problems encountered in the previous property management practice. The highlights of the "Regulations" can be briefly summarized as "nine more": 1., the establishment process of the industry committee is more specific. 2. to improve the pre-and after-sales service system. The 3. is more standardized on the collection of property fees. 4. pay more attention to the privacy protection of the owners 5. transition and convergence between the old and new properties is smoother. 6. prohibitions on property use are more detailed 7. management of garbage classification is more stringent 8. management of house decoration more clearly 9. more comprehensive management of parking spaces (garages) The specific interpretation is as follows: 1., the establishment process of the industry committee is more specific. Regarding the establishment process of the owners' meeting and the owners' committee, the "Regulations" stipulate that the owners shall first apply for the establishment of the owners' meeting, and then the subdistrict office shall establish the owners' meeting preparatory group, and then establish the owners' meeting, and finally establish the owners' committee. Specifically, in a property management area, the area of the exclusive part that has been delivered to the owner accounts for more than 50%; the number of owners who have been delivered accounts for more than 50%; two years have passed since the date of delivery of the first set of property to the owner and the owner has been delivered If the number of owners accounts for more than 25%, the owner or the construction unit may apply to the sub-district office or the town people's government for the establishment of the owners. The subdistrict office (township people's government) shall be responsible for organizing and guiding the establishment of the preparatory group for the first owners' meeting within 60 days from the date of receiving the written application from the owners for the preparation of the owners' meeting. The leader of the preparatory group shall be appointed by the sub district office and the town people's government, and the other members shall be composed of representatives of the owners, residents' committees, construction units and early stage property service personnel, among which the owners' representatives shall not be less than 1/2 of the total number of the preparatory group. If the community encounters "the conditions for the establishment of the owners' assembly, the owners' assembly meeting has been organized twice but the owners' committee has not been elected; the owners' committee needs to be re-elected due to one of the circumstances such as the expiration of the term of office or the vacancy of members, or being dismissed, but the new owners' committee cannot be elected after being organized and guided by the sub-district office and the town people's government twice, the temporary property management committee shall be established by the sub-district office and the town people's government. 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 time limit, the street office and the town people's government shall re-establish the temporary property management committee. Refer to Articles 14 to 45 of the Regulations. 2. to improve the pre-and after-sales service system. In real life, due to the problems left over from real estate development, such as housing quality warranty, transfer of water, electricity and heating facilities, defects in supporting facilities and equipment in the property service area, and non-standard property inspection, many incidents of collective rights protection of owners have been triggered, which not only damages the legitimate rights and interests of owners, but also brings a lot of burden to social governance. In view of the above situation, the Regulations are divided into registration in property management areas. Preliminary property service personnel bidding filing and bidding activities supervision; Preliminary property service contract filing; Determination of the charging standard for preliminary property management fees; The formulation of temporary property management regulations in the early stage; Clear provisions have been made on the inspection of property undertaking, the transfer of property service rooms and data, the transfer of water, electricity and heating facilities, and the establishment and improvement of after-sales maintenance system for newly-built properties. Through the complete system remodeling and design, the pre-service system has been improved and the after-sales service system has been established. Among them, for the after-sales service system, the regulations specifically stipulate that the construction unit should set up a special housing after-sales service center in the property management area to publicize the name of the maintenance unit, the maintenance contact person and the maintenance telephone number, which is used to deal with the problems left over from the construction and accept the owner's repair application, and bear the property warranty responsibility in accordance with the relevant provisions of the state, province and city. The construction unit shall give a reply within three days from the date of receiving the warranty claim, and complete the maintenance within 30 days. At the same time, in order to ensure the actual operation of the after-sales maintenance service system and ensure that the relevant rights and interests of the owners are protected, the Regulations also stipulate that if the construction unit fails to perform the warranty obligations in time during the quality warranty period, the owner has the right to report to the city, district/county housing And the competent department of urban and rural construction can also file a lawsuit in the people's court. Refer to Articles 10, 11, 46, 47, 48, 49, 50, 51 and 79 of the Regulations. The 3. is more standardized on the collection of property fees. In the past, when some property service providers collected property fees, they often used methods such as "cutting off water and electricity" and "restricting the access of owners and their vehicles" to collect them, which caused widespread dissatisfaction and opposition from owners. In this regard, the "Regulations" clearly prohibit property service providers from using methods such as interrupting water supply, power supply, gas supply, heating, or restricting the entry and exit of owners and their vehicles to collect property fees. For property service providers who violate this regulation and collect property fees in the aforementioned manner, they shall be ordered to make corrections within a time limit and be fined not less than 10,000 yuan but not more than 50,000 yuan. At the same time, in order to ensure that property service providers normally collect property fees to carry out related property services, the "Regulations" stipulate that owners should pay property fees in full and on time in accordance with the payment methods and standards agreed in the property service contract. If the owner fails to pay the property fee within the time limit, the property service provider may urge him to pay within a reasonable period of time; if he refuses to pay, the property service provider may apply for arbitration or file a lawsuit in accordance with the law. Refer to Articles 57, 62 and 88 of the Regulations. 4. pay more attention to the privacy protection of the owners At present, more and more communities promote information and intelligent management, and use new technologies to carry out property service related activities. Such as the collection of the owner's face, fingerprints and other biometric information as a means of providing property services, but the risk of the owner's information being leaked and resold has also become a problem that has to be faced. For the purpose of protecting the personal information of the owners, the regulations clearly stipulate that the property service providers can use information and intelligent technology to carry out property service related activities on the premise of ensuring the informed consent of the owners, but they shall not use biometric technologies such as face recognition and fingerprint as the only service means. At the same time, the Regulations also clearly stipulate that property service providers shall not illegally collect, use, transmit, or buy or sell the personal information of the owners obtained in the property service activities, and when the service is terminated and withdrawn, they shall not refuse to hand over the archives and materials shared by the owners. Items, funds, etc. The regulations for violations of the above provisions are also clearly reflected in the "Regulations", clarifying the legal responsibility for violations of the above provisions, which is conducive to the protection of the privacy and personal information of the owners. The Regulations stipulate that misappropriating, embezzling, or disposing of the owners' common property without authorization, tampering with, concealing, or destroying the documents and articles in custody, illegally collecting, using, transmitting, buying and selling the owners' personal information obtained in the property service activities, or infringing on the legitimate rights and interests of the owners, Those who cause losses to the owners shall bear the corresponding liability for compensation; if a crime is constituted, criminal responsibility shall be investigated according to law. Refer to Articles 57, 61 and 91 of the Regulations. 5. transition and convergence between the old and new properties is smoother. In real life, the handover between the old and new properties is often accompanied by contradictions and conflicts. The old properties are unwilling to withdraw and refuse to handle the handover. Problems still exist such as the entry of new properties is blocked and property services cannot be carried out. In addition to stipulating and improving the handover process of property service projects, the current "Regulations" also specify that the original property shall not refuse to handle the handover on the grounds that the owner owes the property fee or disagrees with the joint decision of the owner, and shall not obstruct, interfere or hinder the newly selected property service personnel according to law from providing services for any reason. In the face of the situation that the original property ignores the above provisions and refuses to withdraw from the site, the owners' committee or the owner may report to the sub district office, the town people's government, the district/county housing and urban and rural construction department, request assistance from the public security organ of the jurisdiction or file a lawsuit with the people's court according to law, so as to safeguard their relevant rights and interests. At the same time, the "Regulations" also innovatively introduced "emergency property service personnel" to deal with the sudden loss of management caused by the property service personnel terminating the property service without authorization in violation of the contract, and to protect the basic life of the owners. When the state of loss of management actually occurs, the sub-district office and the town people's government shall organize and determine emergency property service personnel to provide emergency services such as garbage removal and elevator operation to maintain the basic living services of the owners. During the emergency property service period, the sub-district office and the town people's government shall organize the owners to jointly decide to select and hire new property service personnel, and at the same time coordinate the work handover between the new property service personnel and the emergency property service personnel. Refer to Articles 64, 65 and 66 of the Regulations. 6. prohibitions on property use are more detailed In the process of using the property, it is inevitable that some owners, property users or property service providers will not abide by the provisions of laws, regulations and rules and the (temporary) management regulations, thus disturbing the order of the property management area and interfering with the normal life of others. The original "Measures" only stipulated that unauthorized reconstruction and occupation of public parts are prohibited. Damage to the load-bearing structure of the house; Illegal construction of buildings and structures and other acts that have a significant adverse impact on the property management area, but ignore such acts as pets and noise disturbing neighbors; Parking at will in public areas; Private wire charging for electric vehicles and other problems that are very common in life but obviously interfere with the normal life of others. According to the actual problems encountered in Jinan's property management, the current "Regulations" add that it is strictly prohibited to throw articles from buildings (structures). Raising animals to interfere with the normal life of others; Noise from social life interferes with the normal life of others; Parking motorcycles, electric vehicles, bicycles or private wires to charge electric vehicles in shared corridors, hallways, stairwells, corridors, safety exits and other locations. At the same time, the Regulations clarify the responsible departments and units for handling the above-mentioned situations, establish a complaint and report acceptance system, and publish the complaint telephone number in the property management area, and promptly accept and investigate and deal with complaints and reports. Any organization or individual has the right to complain about this. Report. On the whole, the "Regulations" are more specific and closer to reality in the prohibition of property use. At the same time, it clarifies the responsible units for relevant situations, which is conducive to ensuring the order of the property management area and the normal life of the owners. Refer to articles 67 and 83 of the regulations. 7. management of garbage classification is more stringent As a way to deal with a large amount of domestic waste generated every day, garbage classification has important practical significance for the realization of waste reduction, resource utilization and harmlessness. Subject to the restrictions of the times environment, the original "measures" did not make relevant provisions on garbage classification. However, in recent years, more and more attention has been paid to garbage classification in many places across the country, and relevant regulations have been gradually improved. The new "Regulations" clearly stipulate that owners, property users, and property service providers shall not classify and put domestic waste in accordance with regulations. As for decoration waste, the "Regulations" more clearly pointed out that it should be collected in bags, not mixed with domestic waste, and should be put into the property service person or the location designated by the residents committee. At the same time, the "Regulations" clearly stipulate in the supervision and management part that the comprehensive administrative law enforcement department has the responsibility to investigate and deal with illegal acts such as failing to implement garbage classification management in accordance with the regulations. Thus, the Regulations for the management of garbage classification, compared to the past significantly more stringent. Refer to articles 67, 68 and 83 of the regulations. 8. management of house decoration more clearly The original "Measures" compulsorily stipulated that a decoration service agreement should be signed before decorating a house, that is, the owner and property user should sign a decoration service agreement with the property service company before the start of residential decoration. If no decoration service agreement is signed, the property service enterprise may restrict the construction personnel from entering the property management area. Now the "Regulations" for the decoration of houses, no longer mandatory to sign a decoration agreement. The owner and the property user are required to inform the property service person in advance before the decoration (if there is no property service person, inform the residents committee where the property is located), and the property service person shall inform the owner and the property user of the prohibited behaviors and precautions in the decoration. At the same time, if the owner and the property user need to consult the structure diagram of the building (structure), electrical and other pipeline circuit diagrams, the property service person shall provide it. As for decoration waste, the regulations clearly stipulate that it should be collected in bags, not mixed with domestic waste, and needs to be put into the designated place of the property service person or the residents committee. Refer to Article 68 of the Regulations. 9. more comprehensive management of parking spaces (garages) Parking space related problems are long-standing problems in the property management area; developers "only sell but not rent" parking spaces; property restrictions on owners to install new energy vehicle charging piles and other problems are common in life. The "Regulations" clearly stipulate the management of parking spaces (warehouses) and the corresponding legal consequences, and at the same time solve a series of practical problems. 1. For the rental and sale of parking spaces (warehouses). The "Regulations" stipulate that in the residential property management area, parking spaces (warehouses) should first meet the needs of the owners, and the construction unit should sell, lease, and give away the parking spaces (warehouses) to the owners in the property management area. If there is still a spare space after meeting the needs of the owners, the construction unit may lease it to other people outside the property management area, and the term of each lease shall not exceed six months. In short, the "Regulations" clarify that parking spaces (warehouses) cannot be "sold but not rented", and limit the lease period of parking spaces, so as to protect the owners' demand for parking spaces. 2, for the parking space purchase restriction problem. The Regulations stipulate that if the number of parking spaces (warehouses) is less than or equal to the number of houses in the property management area, a household owner can purchase, lease or give a parking space at most; if the number of parking spaces (warehouses) exceeds the number of houses in the property management area, An owner can buy one more or give one more. To limit the way to protect the owner's demand for parking spaces. 3. Publicity and registration of parking spaces. The Regulations provide that the construction of a single

2022-04-16

Viewpoint... A brief description of the legal application of government procurement projects.

In the field of procurement bidding, there are great differences between the government procurement system based on the government procurement law and its implementing regulations and the bidding system based on the bidding law and its implementing regulations in terms of legislative purpose, scope of application, procedural selection and value pursuit. As a competing part of the adjustment scope of the two laws, the legal application of government procurement projects is still a difficult problem in practice. This paper takes the construction project procurement case of the central budget unit as a hypothetical case, and briefly analyzes the competition and convergence of the "two laws" in government procurement projects, focusing on practical issues such as the scope of government procurement projects, application of law, budget management, demand management, implementation of government procurement policies, selection of procurement methods and procurement procedures. hypothetical case] Basic facts A central budget unit (a unit in Beijing) has a budget of 5 million yuan, and plans to purchase a mechanical and electrical building to convey the construction project (hereinafter referred to as "the project"). Fact extension 1. Under the basic facts, the budget of this project is changed to 1.3 million yuan. 2. Under the basic facts, the budget fund of this project is changed to 1.1 million yuan, and only this project is purchased by Unit A for the same item. 3. Under the basic facts, the purchase target of Unit A is changed to a separate demolition project for the mechanical and electrical building. Overview of 1. Government Procurement Project Adjustment Scope of Government Procurement Law of (I) The Government Procurement Law stipulates that this Law shall apply to government procurement conducted within the territory of the People's Republic of China. Accordingly, the adjustment object of the Government Procurement Law is government procurement activities. The "Government Procurement Law" stipulates that government procurement refers to the use of financial funds by state agencies, institutions and organizations at all levels to purchase goods, projects and services within the legally established centralized procurement catalog or above the procurement limit. Accordingly, to define whether the procurement behavior belongs to government procurement should comprehensively consider the four elements of the procurement subject, the source of funds, the centralized procurement catalog and the procurement quota standard, and the procurement target. It can be seen that the definition of government procurement is mandatory, that is, the scope of adjustment of the Government Procurement Law is a mandatory norm. The Connotation of (II) Government Procurement Project The "Government Procurement Law" stipulates that projects refer to construction projects, including the new construction, reconstruction, expansion, decoration, demolition, and repair of buildings and structures. In order to further clarify the application of the law and effectively link up with the law of bidding and bidding and its implementing regulations, the concept of "project", "goods related to project construction" and "services related to project construction" is completely consistent with the implementation regulations of the law of bidding and bidding, that is, "project refers to construction project, including the new construction, reconstruction, expansion of buildings and structures and related decoration, demolition, repair, etc." "The goods related to the construction of the project refer to the equipment and materials that constitute an integral part of the project and are necessary to realize the basic functions of the project" "The services related to the construction of the project refer to the survey, design, supervision and other services required for the completion of the project". Accordingly, government procurement works include construction works, goods related to construction works and services related to construction works. On the basis of the concepts of "project", "goods related to project construction" and "services related to project construction", the "Regulations for the Implementation of the Government Procurement Law" stipulates that government procurement of projects and goods and services related to project construction shall be conducted through bidding. For procurement by means of bidding, the the People's Republic of China Bidding Law and its implementation regulations shall apply; for procurement by other means, the Government Procurement Law and these Regulations shall apply. Based on the relevant provisions of the "Government Procurement Law" and its implementing regulations and the "Tendering and Bidding Law" and its implementing regulations, government procurement projects are divided into projects that must be tendered in accordance with the law and projects that are not tendered in accordance with the law. (III) the scope of government procurement projects by central budget units According to the "Notice of the General Office of the State Council on Printing and Distributing the Catalogue and Standards for Centralized Government Procurement of Central Budget Units (2020 Edition)" (Guo Ban Fa [2019] No. 55, hereinafter referred to as "Guo Ban Fa [2019] No. 55"), The projects in the procurement projects of centralized procurement agencies include projects within the limit of the procurement investment budget of central budget units in Beijing above 1.2 million yuan, decoration projects, demolition projects and repair projects; except for the procurement projects of centralized procurement institutions and centralized procurement projects of departments, the procurement quota standard for engineering projects of central budget units is more than 1.2 million yuan. In addition, the State Office issued [2019] No. 55 document also will be the central budget units in Beijing to apply the bidding law in the procurement of engineering supervision services other than the single or batch amount of more than 200000 yuan of construction projects (including buildings and structures of new construction, reconstruction, expansion, decoration, demolition, repair) project supervision services into the centralized procurement catalog. (IV) Case Situation and Government Procurement Project In the case of basic facts and factual extension 1, Unit A uses financial funds to purchase construction projects, which are government procurement projects. In the case of Fact Extension 3, Unit A uses financial funds to purchase a separate demolition project, which is also a government procurement project. Basic case, case change 1 and case change 3 are all within the scope of adjustment of the Government Procurement Law. In the case of fact extension 2, although the projects within the quota of the central budget unit in Beijing are included in the centralized procurement catalogue, the investment budget is required to be above 1.2 million yuan, while the budget amount of the same product of unit a is 1.1 million yuan. therefore, the procurement activities in this case do not belong to government procurement and do not belong to the adjustment scope of the government procurement law. Overview of 2. projects subject to tender in accordance with the law and projects not subject to tender in accordance with the law Overview of (I) projects subject to tender in accordance with the law 1. The scope of adjustment of the Tendering and Bidding Law The Law on Tendering and Bidding stipulates that this Law shall apply to tendering and bidding activities conducted within the territory of the People's Republic of China. Accordingly, the object of adjustment of the Tendering and Bidding Law is tendering and bidding activities. The Tendering and Bidding Law stipulates that large-scale infrastructure, public utilities and other projects related to social public interests and public safety, projects that use state-owned funds or state financing in whole or in part, projects that use loans and aid funds from international organizations or foreign governments, etc. Three types of construction projects include project survey, design, construction, supervision, and procurement of important equipment and materials related to construction, A tender must be made. The specific scope and scale standards shall be formulated by the development planning department of the State Council in conjunction with the relevant departments of the State Council and submitted to the State Council for approval. If the law or the State Council has provisions on the scope of other projects that must be subject to bidding, such provisions shall be followed. It can be seen that bidding activities can be divided into voluntary bidding and compulsory bidding. For construction projects of a specific scope and scale, bidding must be compulsory according to law, that is, it belongs to the compulsory adjustment scope of the Bidding Law. 2. Connotation of projects that must be tendered in accordance with the law The "Regulations for the Implementation of the Bidding and Bidding Law" stipulates that the term "construction projects" mentioned in Article 3 of the Bidding and Bidding Law refers to projects and goods and services related to project construction. Accordingly, projects that must be tendered in accordance with the law clearly include the project and the goods and services related to the construction of the project. Different from the connotation of government procurement projects, projects that must be tendered according to law only adjust the "decoration, demolition and repair" related to the new construction, reconstruction and expansion of buildings and structures. The separate "decoration, demolition and repair" of buildings and structures is not a project that must be tendered according to law. 3. The scope and scale standard of the project that must be tendered according to law. About the State Council<必须招标的工程项目规定>(State letter [2018] No. 56), "provisions on projects that must be tendered" (National Development and Reform Commission order No. 16), "National Development and Reform Commission on the issuance<必须招标的基础设施和公用事业项目范围规定>Notice of the General Office of the National Development and Reform Commission (2018 No. 843) and the General Office of the National Development and Reform Commission on Further Doing a Good Job<必须招标的工程项目规定>and<必须招标的基础设施和公用事业项目范围规定>The implementation of the notice (Development and Reform Office Regulations [2020] No. 770) and other laws and regulations on the law must be tendered in accordance with the scope and scale of the project standards for specific and clear provisions. On the scope: (1) Projects that use state-owned funds or state financing in whole or in part include: projects that use budget funds of more than 2 million yuan, and the funds account for more than 10% of the investment; projects that use funds of state-owned enterprises and institutions, and the funds occupy a controlling or dominant position. (2) Projects that use loans and aid funds from international organizations or foreign governments include: projects that use loans and aid funds from international organizations such as the World Bank and the Asian Development Bank; and projects that use loans and aid funds from foreign governments and their institutions. (3) Large-scale infrastructure, public utilities and other projects related to social public interests and public safety, the specific scope of bidding must include: coal, oil, natural gas, electricity, new energy and other energy infrastructure projects; railways, highways, pipelines, and water Transportation, as well as public aviation and A1 general airports and other transportation infrastructure projects; telecommunications hubs, communication information networks and other communication infrastructure projects; water conservancy infrastructure projects such as flood control, irrigation, drainage, and water diversion (supply); urban construction projects such as urban rail transit. On the scale criteria: For projects within the aforementioned scope, if the survey, design, construction, supervision, and procurement of important equipment and materials related to engineering construction meet one of the following standards, bidding must be conducted: (1) The estimated price of a single construction contract is above 4 million yuan; (2) For the purchase of important equipment, materials and other goods, the estimated price of a single contract is above 2 million yuan; (3) For the procurement of survey, design, supervision and other services, the estimated price of a single contract is above 1 million yuan. For the procurement of survey, design, construction, supervision and important equipment and materials related to project construction that can be combined in the same project, if the total estimated contract price meets the standards specified in the preceding paragraph, bidding must be invited. 4. Assumed cases and projects that must be tendered by law. Under the basic facts, the use of financial funds by Unit A to purchase construction projects that are within the scope and above the scale standard must be tendered according to law, and fall within the scope of the compulsory adjustment of the Bidding Law. In the case of factual extension 1, because it does not meet the scale standard, it does not belong to the project that must be tendered according to law, and does not belong to the scope of compulsory adjustment of the bidding law. In the case of factual extension 3, because the subject matter of the procurement is a separate demolition, which has nothing to do with the new construction, reconstruction and expansion of buildings and structures, it does not belong to the project that must be tendered according to law, and does not belong to the scope of compulsory adjustment of the bidding law. Overview of (II) projects not subject to tender in accordance with the law 1. Scope of projects not subject to bidding according to law According to the Government Procurement Law and its implementing regulations, the Law on Forwarding the Legislative Affairs Office of the State Council.<对政府采购工程项目法律适用及申领施工许可证问题的答复>According to the provisions of the notice of the Ministry of Finance (2015 No. 352) and the reply on the application of laws related to government procurement projects (2020 No. 385), no bidding projects shall be carried out in accordance with the law, including:(1) separate decoration, demolition and repair projects above the bidding limit and unrelated to new construction, reconstruction and expansion projects of buildings and structures;(2) Government procurement projects within the government centralized procurement catalog and below the project bidding limit standard;(3) Government procurement projects above the government procurement project limit standard and below the project bidding limit standard are not projects that must be tendered according to law. 2. Assumed cases and projects that are not subject to tender in accordance with the law In the case of factual extension 1, because it is above the quota standard of government procurement projects and below the quota standard of project bidding, it belongs to the scope of compulsory adjustment of the Government Procurement Law. In the case of factual extension 3, the subject matter of the procurement is a separate demolition and has nothing to do with the new construction, alteration or expansion of buildings and structures. Although the budget amount in the case of fact extension 3 is as high as 5 million yuan, it is a separate decoration, demolition and repair project unrelated to the new construction, reconstruction and expansion of buildings and structures, so it belongs to the project that does not carry out bidding according to law and belongs to the scope of compulsory adjustment of the government procurement law. Overview of the procurement methods of 3. government procurement The Government Procurement Law stipulates that the procurement methods of government procurement include public bidding, invitation bidding, competitive negotiation, single-source procurement, inquiry, and other procurement methods recognized by the government procurement supervision and management department of the State Council. Among them, public bidding should be used as government procurement. The main procurement method. In addition, up to now, other procurement methods identified by the Ministry of Finance include competitive negotiation procurement and framework agreement procurement. Among the above procurement methods, the inquiry procurement method and the framework agreement procurement method are not applicable to the procurement of engineering projects. In practice, although public bidding and invited bidding, as the procurement methods of government procurement, are generally consistent with the bidding, bidding, bid opening, bid evaluation and bid winning stipulated in the "Bidding Law" and its implementing regulations in procedures, but look at the differences between the government procurement legal system and the bidding legal system in various aspects such as budget management, demand management, information disclosure, and rights relief, in the government procurement activities of goods and services unrelated to the project, even if the purchaser adopts the public bidding and invitation bidding procurement methods in accordance with the Government Procurement Law, the project should also be in accordance with the Government Procurement Law and its implementing regulations. Legal provisions for procurement activities. Practical Operation of 4. Government Procurement Project It should be noted that although the government procurement project is a complex technical project, the author of this paper believes that the government procurement project is a systematic and comprehensive legal project. Exhausting the author's cognition and work experience, government procurement projects need to at least consider the Budget Law, the Government Procurement Law, the Bidding Law, the Civil Code, the Construction Law, and the SME Promotion Law in the practical operation of government procurement projects. Laws and regulations such as the Energy Conservation Law, the Environmental Protection Law, and the Government Investment Regulations. Due to the author's ability level, in this part of the discussion, only a preliminary discussion of the Budget Law, the Government Procurement Law, the Tendering and Bidding Law, the Civil Code and other laws and regulations related to government procurement projects and often wrong. (I) budget management In terms of budget management, purchasers who purchase government procurement projects shall, in accordance with the Budget Law, the Government Procurement Law, etc.</对政府采购工程项目法律适用及申领施工许可证问题的答复></必须招标的基础设施和公用事业项目范围规定></必须招标的工程项目规定></必须招标的基础设施和公用事业项目范围规定></必须招标的工程项目规定>

2022-04-15

Viewpoint... An analysis of the limitation of the company's surplus distribution claim rights of shareholders who have not fulfilled their capital contribution obligations.

1. Introduction The right of claim for the distribution of surplus of the company, which is equivalent to the right of first subscription of new shares and the right of claim for the distribution of surplus property, is the property right enjoyed by shareholders. After the company makes profits, some shareholders hope to retain earnings to expect higher returns, and some shareholders hope to obtain income in time to seek short-term benefits. The Company Law stipulates that shareholders of the company have the right to asset income according to law, but there is no mandatory regulation on how the company distributes profits. In principle, this belongs to the scope of business judgment and autonomy of the company. The company can adopt articles of association, resolutions of shareholders (large) meeting and other forms according to actual needs, make a profit distribution agreement that is conducive to the establishment of a cooperative relationship between shareholders. Capital contribution is the most basic and important obligation of shareholders, the company's registered capital is the basis of the company's operation and capital maintenance, the company's profits depend on the shareholders' capital contribution, at the same time, the company's public registered capital is also an important basis for others to examine the strength of the company. The failure of shareholders to fulfill their capital contribution obligations not only infringes the interests of the company and other shareholders, but also deceives the company's creditors and infringes the interests of creditors. In practice, the disputes arising from shareholders' capital contribution are diverse and complex, which deviates from the company's capital system. Therefore, the Company Law and relevant judicial interpretations not only stipulate that shareholders who have not fulfilled their capital contribution obligations make up their capital contributions and bear the liability for breach of contract to shareholders who have made full capital contributions, but also stipulate that the company can reasonably restrict the shareholders' rights such as the right to request profit distribution, the right to subscribe for new shares, and the distribution of surplus property. This paper will make a brief analysis of the limitation of the company's surplus distribution claim of shareholders who have not fulfilled their capital contribution obligations. 2. relevant laws and regulations (I) Company Law Article 4 stipulates that the shareholders of a company shall enjoy the rights of asset income, participation in major decision-making and selection of managers in accordance with the law. Article 13 stipulates that in a case where a shareholder requests a company to distribute profits, the company shall be listed as the defendant. Before the conclusion of the court debate of the first instance, if other shareholders request the distribution of profits based on the same distribution plan and apply to participate in the litigation, they shall be listed as co-plaintiffs. Article 34 stipulates that shareholders shall share dividends in accordance with the proportion of capital contributions paid in; when the company adds new capital, shareholders shall have the right to pay capital contributions in accordance with the proportion of capital contributions paid in priority. However, unless all shareholders agree not to share dividends in proportion to their capital contributions or not to give priority to their capital contributions in proportion to their capital contributions. The fourth paragraph of Article 166 stipulates that the after-tax profits of a company after making up for losses and withdrawing provident funds shall be distributed by a limited liability company in accordance with the provisions of Article 34 of this Law; a joint stock limited company shall be distributed in accordance with the proportion of shares held by shareholders, except where the articles of association of a joint stock limited company stipulate that it shall not be distributed according to the proportion of shares held. (II) Company Law Interpretation III The first paragraph of Article 13 stipulates that if a shareholder fails to perform or fails to fully perform its capital contribution obligations, and the company or other shareholders request it to fully perform its capital contribution obligations to the company in accordance with the law, the people's court shall support it. Article 16 stipulates that if a shareholder fails to perform or fully perform the obligation of capital contribution or evades capital contribution, the company shall, in accordance with the articles of association or the resolution of the shareholders' meeting, make corresponding reasonable restrictions on the rights of shareholders such as the right to claim profit distribution, the right to subscribe for new shares, and the right to claim the distribution of surplus property. If the shareholder requests that the restriction be invalid, the people's court shall not support it. (III) Company Law Interpretation IV Article 14 stipulates that if the shareholders submit a valid resolution of the shareholders' meeting or the general meeting of shareholders specifying the specific distribution plan to request the company to distribute the profits, and the company refuses to distribute the profits and its defense against the inability to implement the resolution is not tenable, the people's court shall judge the company to distribute the profits to the shareholders in accordance with the specific distribution plan specified in the resolution. Article 15 stipulates that if a shareholder fails to submit a resolution of the shareholders' meeting or general meeting containing a specific distribution plan to request the company to distribute profits, the people's court shall reject his claim, except where the abuse of shareholders' rights in violation of the law results in the company's non-distribution of profits and causes losses to other shareholders. (III) securities law Article 91 stipulates that a listed company shall specify in its articles of association the specific arrangements and decision-making procedures for the distribution of cash dividends, and protect the shareholders' right to return on assets in accordance with the law. If a listed company has a surplus after making up its losses and withdrawing its statutory provident fund, it shall distribute cash dividends in accordance with the provisions of the articles of association. 3. Focus Analysis Can other shareholders of the (I) sue the court to limit the right to claim profit distribution for shareholders who have not fulfilled their capital contribution obligations? Regarding the determination of whether the right to request profit distribution of shareholders who have not fulfilled their capital contribution obligations can be restricted, the main legal basis is Article 16 of the Interpretation III of the Company Law. The applicable conditions of this clause are two: First, shareholders have not fulfilled or have not fully fulfilled their capital contribution obligations., Or there is an act of evading capital contribution; second, restrictions should be made in accordance with the company's articles of association or the resolution of the shareholders meeting. It can be seen that the law gives the company or the shareholders' meeting the right to limit part of the self-interest of shareholders who have not fulfilled their capital contribution obligations, but does not give other shareholders the same rights, so other shareholders do not have the substantive rights to restrict the rights of shareholders who have not fulfilled their capital contribution obligations, and they do not have the right to directly claim the right to limit the profit distribution of shareholders who have not fulfilled their capital contribution obligations. However, in judicial practice, other shareholders usually claim that shareholders who have not fulfilled their capital contribution obligations fully perform their capital contribution obligations to the company in accordance with the first paragraph of Article 13 of the Interpretation III of the Company Law, and at the same time require restrictions on their right to claim profit distribution. When deciding that shareholders fulfill their capital contribution obligations, they also made judgments on the litigation claims of shareholders who have not fulfilled their capital contribution obligations. When other shareholders as plaintiffs bring up the right to restrict the profit distribution claim of shareholders who have not fulfilled their capital contribution obligations, there are also different views on the choice of defendants: there are separate listed shareholders who have not fulfilled their capital contribution obligations as defendants, there are separate listed companies as defendants, there are cases where the company and shareholders who have not fulfilled their capital contribution obligations are listed as co-defendants, and there are cases where the company is listed as defendants and shareholders who have not fulfilled shareholders who have not fulfilled their capital contribution obligations as third parties. However, the majority of the court held that if the shareholders who have not fulfilled their capital contribution obligations are the defendants alone, the request to restrict their right to claim profit distribution will not be supported. Is the right to claim profit distribution (II) shareholders who have not fulfilled their capital contribution obligations necessarily limited by the degree of their actually paid capital contribution? As a shareholder, one of the most important purposes of investing in a company is to make the company profitable and receive dividends through its operations. In practice, there are many manifestations of shareholders' failure to fulfill their capital contribution obligations, such as putting money into the company's account and then transferring it out in order to meet the capital verification, and making capital contributions in kind or assets but not going through the formalities of transfer or transfer of property rights. These acts directly lead to the reduction of the company's disposable cash, adversely affect the company's capital turnover and management, and are not conducive to the security of transactions and the protection of creditors' interests. Therefore, in principle, the right of shareholders who have not fulfilled their obligations to obtain property benefits should be limited by the degree of their actual contribution. However, the distribution of dividends of the company belongs to the category of corporate autonomy, and shareholders can agree on the distribution of dividends separately, so the company will have to carry out the distribution in accordance with the agreement if it is otherwise agreed. Article 34 of the Company Law makes more flexible provisions on the proportion of dividends for shareholders of limited liability companies. In principle, shareholders share dividends according to the proportion of paid-in capital. However, based on the private law attribute of the Company Law and the personality of limited liability companies, the law makes a special provision that all shareholders can share dividends by agreement not according to the proportion of capital contribution, thus giving shareholders the right to autonomy in the distribution of surplus profits. Article 166, paragraph 4, of the Company Law also provides for the proportion of profits distributed to shareholders of a joint-stock company, and unless otherwise provided for in the articles of association, the company distributes profits in proportion to the shares held by shareholders, which reflects the characteristics of the capitalization of a joint-stock company. At the same time, Article 91 of the Securities Law stipulates that the articles of association of listed companies shall specify the specific arrangements and decision-making procedures for the distribution of cash dividends. According to the above provisions, it can be seen that compared with limited companies, the autonomy of profit distribution of joint-stock companies is smaller, listed companies are mainly regulated by the CSRC, in practice, the company's surplus distribution disputes are mainly concentrated in limited companies. If the shareholders of a limited company fail to fulfill their capital contribution obligations, unless otherwise provided in the articles of association, they shall not affect their right to claim profit distribution, but shall, in accordance with the provisions of Article 34 of the Company Law, share dividends in proportion to the paid-in capital contribution, unless all shareholders have signed the relevant contract, which shall be dealt with in accordance with the contract. Can shareholders who have not fulfilled their capital contribution obligations of the (III) request the company to distribute profits to them in accordance with the agreement between shareholders? According to the principle of "capital majority decision", the resolution of the company's shareholders' meeting is often controlled by the majority shareholder, and in reality there are frequent disputes in which the majority shareholder uses the dividend policy to harm the interests of small and medium-sized shareholders. According to the provisions of Articles 14 and 15 of the Interpretation IV of the Company Law, shareholders requesting the company to distribute profits shall, in principle, submit an effective resolution of the shareholders meeting or shareholders meeting that specifies the specific distribution plan; if the resolution is not submitted, the shareholders shall not Request the distribution of profits, but if the abuse of shareholder rights in violation of the law causes the company not to distribute profits and causes losses to other shareholders, shareholders can directly request the company to distribute profits. It can be seen from Article 16 of the Interpretation III of the Company Law that the company may make "reasonable restrictions" on the self-interest rights of shareholders who have not fulfilled their capital contribution obligations, rather than depriving them of their shareholders' rights altogether, so that shareholders who have not fulfilled their capital contribution obligations as shareholders of the company may request the company to distribute profits. In judicial practice, there are different views on whether the inter-shareholder agreement can be used as the basis for distribution. The majority view is that the inter-shareholder agreement can be used as the basis for the distribution of profits until the company's shareholders' meeting or general meeting has made an effective resolution on the specific plan for profit distribution. However, there are also views that before the profit distribution plan is made, there is uncertainty about the amount of distribution requested by shareholders, and the court cannot make business judgments and choices on behalf of the company, and the shareholders' claims should be rejected. However, after the effective resolution is made, there are two completely different views, some scholars believe that shareholders should request the company to distribute profits according to the resolution, and some scholars believe that specific analysis should be carried out according to the time and effect of the resolution and the agreement between shareholders. The company's resolution to distribute profits shall be open to all shareholders, and if the company pays dividends to individual shareholders alone, it is judged that it constitutes a withdrawal of capital contributions. 4. related cases (I) Case 1:(2016) Supreme Famin No. 357 Basic case: Yihu Company (the third party in the first instance) is a Sino-foreign joint venture company. Its shareholders are Yizhong Company (the plaintiff in the first instance and the appellee in the second instance), Lesheng Nanao Company (the defendant in the first instance and the appellee in the second instance) and Chenghai Erjian Company (the third party in the first instance). Lesheng Nanao Company should contribute 9.3 mu of land use rights, but the company has not fully fulfilled its contribution obligations. On March 30, 2012, Yihu Company held a board meeting and formed a resolution. Because Lesheng Nanao Company failed to fulfill its capital contribution obligations, Lesheng Nanao Company did not enjoy the right to request profit distribution, the right to subscribe for new shares, and the right to request the distribution of surplus property. And other shareholder rights. Yizhong Company filed a claim to confirm that Lesheng Nanao Company has not fulfilled its capital contribution obligations, and Lesheng Nanao Company does not have the right to claim profit distribution, the right to subscribe for new shares, the right to claim the distribution of surplus property and other shareholder rights. The Court of First Instance (Intermediate People's Court of Shantou City, Guangdong Province) held that the prerequisite for shareholders to enjoy shareholders' rights is to assume shareholders' obligations, and that shareholders' rights such as the right to request profit distribution, the right to subscribe for new shares, and the right to request the distribution of surplus property correspond to the obligation to contribute, and that the above-mentioned shareholders' rights should be exercised in proportion to the paid-in capital contribution. In this case, the fact that Lesheng Nanao Company did not fulfill its capital contribution obligations is clear, and the exercise of its shareholders' rights should be restricted. Therefore, Lesheng Nanao Company argued that the procedure and content of the restriction notice made by Yihu Company were illegal, and the reason was not valid and would not be adopted. Yizhong Company requested the court to confirm that Lesheng Nanao Company does not enjoy the shareholders' rights of profit distribution, new shares of priority subscription, surplus property distribution and other shareholders' rights to Yihu Company, which are reasonable and lawful. The court of second instance (Guangdong Provincial Higher People's Court) held that the facts found in the original trial were clear, the applicable law was correct, and the handling was appropriate. The retrial court (Supreme People's Court) held that one of the focuses of the dispute in this case is whether Lesheng Nan'ao Company should be restricted to the corresponding shareholders' rights. First of all, Lesheng South Australia Company has not failed to fulfill its capital contribution obligations, but has not fully fulfilled its capital contribution obligations. Secondly, the articles of association of Yihu Company do not specify that shareholders who fail to fully fulfill their capital contribution obligations will be restricted in their rights. Third, since the legislation of China's Foreign Investment Enterprise Law predates the legislation of the Company Law, the the People's Republic of China Law on Sino-Foreign Joint Ventures and its implementing regulations do not provide for shareholders' meetings in the governance structure of joint ventures, and the corresponding duties of shareholders' meetings are actually exercised by the board of directors. After investigation, the resolution of the board of directors of Yihu Company on March 30, 2012 was invalid because it did not reach the approval ratio stipulated in the articles of association of Yihu Company. According to Article 16 of the "Judicial Interpretation III", restrictions on shareholders' rights such as the right to request profit distribution, the right to subscribe for new shares, and the right to request the distribution of surplus property shall meet the following conditions at the same time: First, shareholders have not fulfilled or have not fully fulfilled their capital contribution obligations, Or there is an act of evading capital contribution; second, restrictions should be made in accordance with the company's articles of association or resolutions of shareholders. Therefore, the request of Yizhong Company and Yihu Company to restrict the corresponding shareholder rights of Lesheng Nanao Company according to the resolution of the board of directors of Yihu Company cannot be supported. The second-instance judgment of the 1. found that Lesheng Nan'ao Company did not enjoy the shareholder rights of Yihu Company, such as the right to request profit distribution, the right to subscribe for new shares, and the right to request the distribution of surplus property, which lacked factual and legal basis and should be corrected. (II) Case 2:(2014) Zhejiang Wen Shang Zhong Zi No. 691 Basic case: On February 10, 2004, the plaintiff Gao Qi, the defendants Lin Chunhua, Zheng Yuzan and Wen Jibin invested in the establishment of Handan Anfu Company. On December 30, 2009, because the company did not go through the annual inspection, the Shexian County Administration for Industry and Commerce made an administrative penalty decision No. 446 (2009), revoking the business license of Handan Anfu Company as an enterprise legal person, and requiring Handan Anfu Company to liquidate and cancel its registration. On November 20, 2010, all shareholders of Handan Anfu Company held an interim shareholders' meeting in Hangzhou, which decided to set up a liquidation group in order to dissolve Handan Anfu Company in accordance with the law. On August 8, 2011, Gao Qi received a "resolution of the shareholders' meeting" of Handan Anfu Company unilaterally made by Wen Jibin, Zheng Yuzan and Lin Chunhua, denying the fact of Gao Qi's capital contribution and thus denying the company's shareholder qualification. The high-term prosecution requested the defendant to return the registered capital and profit share. The court of first instance (the People's Court of Cangnan County, Zhejiang Province) held that: the subject of the obligation of the company's right to claim surplus distribution can only be the company, the shareholders of the company can only file a surplus distribution lawsuit against the company, and there is no surplus distribution between the shareholders of the company and between the directors of the company and the shareholders of the company.

2022-04-14

Point of View | Relative Non-Prosecution-An Effective Defense for a Suspected Crime of Illegal Destruction of Agricultural Land

Recently, the author handled a case suspected of illegal destruction of agricultural land, and the procuratorial organ finally dealt with the client Wang so-and-so, and the defense effect was good. A brief case After finding out, in order to carry out the "four good" rural road construction, the village committee of a certain town signed a "project contract" with a certain road and bridge co., ltd. without going through the formalities of requisitioning forest land, the road and bridge co., ltd. used excavators to carry out road construction in Nanshan of a certain village, resulting in the destruction of forest land and vegetation, which was identified by the forestry engineer of a certain district natural resources bureau, the destroyed forest land covers a total area of 5.6 mu and belongs to provincial public welfare forest. A total of 1008 young Robinia pseudoacacia trees and 30 young cypress trees were destroyed. Wang Moumou is the party branch secretary of Moumou Village and the director of the villagers committee, and Liu Moumou is the person in charge of the road construction site of Road and Bridge Co., Ltd., and it is determined that Wang Moumou and Liu Moumou violated the provisions of Article 342 of the the People's Republic of China Criminal Law. The crime of illegally occupying agricultural land shall be transferred for review and prosecution in accordance with Article 162 of the Criminal Procedure Law. II Treatment Results The procuratorial organ believes that Wang has committed the acts stipulated in Article 342 of the Criminal Law, but the circumstances of the crime are minor, with voluntary surrender, confession and punishment, compensation and understanding, "replanting and restoration of green" and other statutory circumstances of lighter, mitigated or exempted criminal punishment. According to Article 67 of the Criminal Law, there is no need to impose a penalty, so according to Article 177, paragraph 2, of the Criminal procedure Law, decided not to prosecute Wang Moumou-that is, relatively not to prosecute. Three defense ideas The defender believes that the indictment accuses Wang's behavior of illegally occupying agricultural land, which cannot be established in accordance with the law. First of all, the damaged public welfare forest alleged in this case has not been publicized in defining the scope of public welfare forest, nor has it been set up with public welfare forest signs. It is impossible to identify whether it is a public welfare forest. Even if the forest land involved is a public welfare forest, Wang Moumou does not know this. In addition, the 5.6 mu of forest land charged in this case includes 0.94 mu of basic farmland, which is not forest land and should be deducted. If this part is deducted, the case will not meet the filing standard. In addition, the appraisal of the area of public welfare forests in this case does not comply with relevant laws and regulations. The appraisal opinion is only signed by two engineers and technicians, and only the title certificates of two technicians are provided. The two engineers and technicians do not have judicial appraisal qualifications., Is not an appraiser of a judicial appraisal agency, the appraisal conclusion made does not meet the formal requirements of the evidence and should not be used as the basis for finalization. Secondly, according to the project documents, the unit involved in the project is the District Transportation Bureau, and the main body of responsibility for road construction should be the county-level people's government and the township-level people's government, not the so-and-so village committee. There is no evidence to prove that the responsibility for handling road construction procedures (including forest land occupation) lies with the village committee or Wang Moumou. Thirdly, if it is indeed a public welfare forest, the problem can be solved by completing the formalities. The village is the only backward village in its town that has neither public transportation nor school buses. It is extremely inconvenient for production and life, which seriously restricts the development of the village. The construction of the "Four Good Rural Roads" is a major national project to benefit the people. To implement the country's good policies and let the old white surname truly enjoy the policy dividend, the relevant departments need to fine-tune their thinking, and the procedures should be completed. Go through the formalities, not the person! Moreover, the forest land involved in the case can be completely repaired by replanting. Wang Moumou cooperated with the government to build roads for the people. It was a kind act of public will, no social harm, and should not be punished; Wang Moumou's behavior did not constitute the crime of illegal occupation of agricultural land. Request the procuratorate to do not prosecute Wang Moumou. Analysis of four crimes 1. Standards of conviction and punishment Article 342 of the the People's Republic of China Criminal Law [Crime of Illegal Occupation of Agricultural Land] Violation of land management laws and regulations, illegal occupation of cultivated land, forest land and other agricultural land, change the use of the occupied land, and cause a large amount of cultivated land, forest land and other agricultural land Anyone who is destroyed shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and a fine or a fine. Interpretation of the Supreme Law on Several Issues concerning the Specific Application of Law in the Trial of Criminal Cases of Destroying Forest Land Resources Article 1: Under any of the following circumstances, if it belongs to "a large number of forest land, causing a large amount of destruction", it shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention for the crime of illegally occupying agricultural land, and shall also be sentenced to a fine or a fine: The amount of (I) illegally occupied and destroyed protective forest land and forest land for special purposes respectively or in total reaches more than five mu; (II) illegally occupy and destroy more than 10 mu of other forest land; The (III) illegally occupies and destroys the forest land specified in Item (I) and (II) of this article, and the quantity reaches more than 50% of the corresponding quantity standard; (IV) illegally occupy and destroy the forest land specified in items (I) and (II) of this article, one of the quantities reaches more than 50% of the corresponding quantity standard, and the total quantity of the two items reaches the quantity standard specified in this article. 2. Constituent elements 1) Object element: The object of this crime is the country's land management system. 2) Objective elements: the objective aspect of this crime is the violation of land management laws and regulations, illegal occupation of agricultural land for other purposes, a large number of large, resulting in a large number of agricultural land destruction. 3) Subject element: The subject of this crime can be either a natural person or a unit. 4) Subjective elements: This crime is manifested as intentional in the subjective aspect. That is, knowing that the occupation of agricultural land for other purposes violates land management laws and regulations, and knowing that the occupation of agricultural land for other purposes will cause the destruction of a large number of agricultural land. 5 Types of Non-Prosecution Non-prosecution means that the People's Procuratorate, after examining the prosecution, makes a decision not to transfer the case to the People's Court for trial and terminates the proceedings. Non-prosecution is one of the results made by the People's Procuratorate in accordance with the law after reviewing the case. Its nature is a kind of litigation punishment made by the People's Procuratorate on criminal suspects who should not be investigated, do not need to be investigated, or cannot be investigated for criminal responsibility. The types of non-prosecution are as follows: 1. Statutory non-prosecution (absolutely non-prosecution) Statutory non-prosecution refers to the provisions of Article 142, paragraph 1, of the Criminal Procedure Law: If a criminal suspect has one of the circumstances specified in Article 15 of this law, the People's Procuratorate shall make a decision not to prosecute, which is called absolute non-prosecution. According to Article 15 of the Criminal Procedure Law, statutory non-prosecution applies to the following six situations: (1) The circumstances are obviously minor and the harm is not serious, and it is not considered a crime; (2) the crime has passed the period of limitation of prosecution; (3) where the penalty is waived by an amnesty decree; (4) Crimes that are dealt with only after being told in accordance with the Criminal Law, and have not been told or have been withdrawn; (5) the death of the suspect or defendant; (6) Other laws provide for exemption from criminal liability. 2. Discretionary non-prosecution (relative non-prosecution) Article 173, paragraph 2, of the Criminal procedure Law stipulates that if the circumstances of the crime are minor and there is no need to be sentenced or exempted from punishment in accordance with the provisions of the Criminal Law, the people's Procuratorate may make a decision not to prosecute. Discretionary non-prosecution may apply in the following circumstances: (1) A criminal suspect who commits a crime outside the territory of China shall bear criminal responsibility in accordance with the Chinese Criminal Law, but has already received criminal punishment in a foreign country (Article 10 of the Criminal Law); (2) The suspect is deaf and dumb, or blind (Article 19 of the Criminal Law) (3) The criminal suspect commits a crime due to justifiable defense or emergency avoidance (Articles 20 and 21 of the Criminal Law); (4) Preparing tools and creating conditions for the crime (Article 22 of the Criminal Law); (5) In the course of the crime, the crime is automatically suspended or the result of the crime is automatically and effectively prevented from occurring without causing damage (Article 24 of the Criminal Law); (6) Having a secondary or auxiliary role in a joint offence (art. 27 of the Criminal Code); (7) Being coerced to participate in a crime (art. 28 of the Criminal Code); (8) The criminal suspect surrendered himself or performed significant meritorious service (articles 67 and 68 of the Criminal Law). 3. Insufficient evidence does not prosecute (doubt does not prosecute) Article 140, paragraph 4, of the Criminal procedure Law stipulates that for cases of supplementary investigation, if the people's Procuratorate still considers that the evidence is insufficient and does not meet the conditions for prosecution, it may make a decision not to prosecute. Under any of the following circumstances, if it cannot be determined that the criminal suspect constitutes a crime or needs to be investigated for criminal responsibility, the evidence is insufficient and the conditions for prosecution are not met, and a decision not to prosecute may be made: (1) The evidence on which the conviction is based is questionable and cannot be verified; (2) The facts of the constituent elements of the crime lack the necessary evidence to prove it. (3) The contradiction between the evidence on which the conviction is based cannot be reasonably excluded; (4) The conclusion based on the evidence has other possibilities.

2022-04-11

Viewpoint | Effective Defense of a Case of Compulsory Indecency and Insult-Whether the Original Match Catches Rape, Beatings Naked "Little Three" and Videotapes Constituting Crime

Brief of the case Bai (female) and Wang (male) have been married for many years, and have a daughter, Xiao Wang, who is an adult. Bai and Wang have a bad relationship in recent years and often quarrel. Later Bai went to her daughter's home to live because she took care of her children for her daughter Xiao Wang. In early 2020, Bai learned that her husband, Wang, was outside and often took the woman to spend the night at home. On the evening of April 1, 2020, after confirming that Wang and "small three" were sleeping at home, Bai, in order to collect evidence of her husband's marital infidelity, contacted her daughter Xiao Wang and nephew Li and other relatives and friends 4 men and 4 women to catch rape at home. Xiao Wang climbed into the room from the balcony of his neighbor's house to open the door without using the key. Nine people rushed into the room. Bai and Xiao Wang beat the "mistress" and prevented him from putting on clothes and blocking his private parts to keep him naked all the time. Li recorded the whole process of nudity and humiliation of the "mistress" for about 30 minutes, the rest are responsible for controlling Wang mou to prevent him from resisting and for the whole process. Video recording. Xiao Wang and others took the initiative to call the police in order to leave smoothly, considering that Wang had a tendency to violence. After forensic identification, "Xiao San" suffered facial contusion, soft tissue swelling caused by external force, accompanied by scattered skin scratches on the face and trunk, and the degree of injury was minor. The public security organ filed a case for investigation on suspicion of compulsory indecency and insult by Bai, Xiao Wang and Li, and then transferred the case to the procuratorate for examination and prosecution. Case handling results The author accepted the entrustment at the stage of examination and prosecution. After reading the papers, the author thinks that the behavior of Bai and others does not constitute the crime of compulsory indecency or compulsory insult. Although the public security organ can accept the alarm affairs, it should not put the case on file for investigation as a criminal case. Based on the above analysis, after forming a written defense opinion, the author communicated with the undertaking prosecutor many times and submitted a legal search report on similar cases. Finally, the undertaking prosecutor adopted the above opinions of the author, believing that Bai and others did not constitute the crime of compulsory indecency and insult, and returned the case to the public security for withdrawal. Of course, the author's defense point of view will only play a role if it is adopted and accepted by the undertaking prosecutor, and the undertaking prosecutor's adherence to the principle of "taking facts as the basis and the law as the criterion" and fairness and justice is the ultimate fairness of Bai and others. The fundamental guarantee for handling. defense thinking The news that the original match took people to catch rape and beat "mistress" in public often appeared on the Internet. The author conducted legal searches through big data and found that the judicial practice was not the same for this kind of behavior. Some courts believed that violence was used. The method openly insulted women in public, and the circumstances constituted a crime of compulsory insult; some courts believed that the act constituted a crime of insult and was a private prosecution case; some courts believed that this act was a crime of compulsory indecency. The public security organ transferred the case to the procuratorate for examination and prosecution on suspicion of compulsory indecency and insult. The author believes that the crime of compulsory indecency and insult is a selective crime, and Bai's behavior involved in the case is neither compulsory indecency nor compulsory insult. Looking at the whole process of the incident, we can see that Bai was very angry about her husband Wang's infidelity during his marriage and wanted to sue for divorce. He gathered his daughter and others to collect divorce evidence by catching rape in bed. At the time of the incident, someone was responsible for controlling Wang, and someone was responsible for filming the entire process. Bai beat the "little three" in anger and prevented him from wearing clothes and kept him naked for about half an hour. It can be said that the basic facts of this case are relatively clear. The author believes that whether Bai and others constitute the crime of compulsory indecency and insult depends on whether Bai and others subjectively have the criminal intention of "pursuing sexual stimulation and sexual satisfaction" and objectively Whether it infringes on the sexual autonomy of the "little three. Analysis of the charges involved According to the provisions of Article 237 of the Criminal Law of our country, the crime of compulsory indecency and insult refers to the act of forcibly molesting others or insulting women by violence, coercion or other means against the will of the victim. The object of the crime of compulsory indecency and compulsory insult is the victim's right to decide on sexual freedom. The crime of compulsory indecency and insult is a selective crime in form. In theory, it can be identified as a complete crime, and the "compulsory indecency" and "compulsory insult" can be convicted separately. However, the author believes that there is a certain rank relationship between "compulsory indecency" and "compulsory insult". Of course, indecency hurts women's sexual shame and personal dignity in sexual health, so it must "insult" women at the same time. For those whose behavior means and circumstances are related to "indecency" but slightly lower than "compulsory indecency", the "crime of compulsory insult" can be determined separately ". Although it is not stated in the law that the crime should be constituted "for the purpose of pursuing sexual stimulation and sexual satisfaction", both in theory and in practice, it is required that the crime should be constituted subjectively "for the purpose of pursuing sexual stimulation and sexual satisfaction", that is, the actor has a specific stimulation and the tendency to satisfy sexual desire is a necessary condition for the crime. analysis of the case (I) Bai and others entered the house to "catch rape" in order to collect evidence of divorce, the various acts involved in the case were to vent their anger, did not have the purpose of pursuing sexual stimulation and sexual satisfaction, and did not meet the constitutive elements of the crime of compulsory indecency. The cause of this case is that Bai mou wanted to collect evidence of her husband's infidelity for divorce because her husband had an extramarital affair with the victim. considering that her husband was irritable and had committed domestic violence against him, Bai mou found his daughter Xiao Wang and other relatives to help "catch rape" and collect evidence. At the time of the crime, Bai saw her husband sleeping naked with the victim in his own home. Bai opened the quilt, and then controlled the victim with Xiao Wang and others, abused, pulled, prevented him from wearing clothes, and arranged for someone to take nude photos of the naked victim. This case is dominated by Bai. Xiao Wang is his daughter. He participated in the case out of the motive of helping his mother teach the "little three". The other people present were Bai's relatives and friends, and the victim was taught out of the idea of helping Bai. Although Li was a male, he was only responsible for taking photos and videos at the time of the crime, and did not have physical contact with the victim. "Indecency" is interpreted as "promiscuous and indecent actions" in the "Modern Chinese Dictionary". Compulsory indecency emphasizes personal contact to a certain extent. Judging from the course of the case, it is mainly Bai who has physical contact with the victim in this case. In this case, the closest action to "indecency" is Bai's "grabbing the lower body" and "touching the breast" of the victim. However, Bai, as a derailed woman, did not allow the naked victim to wear clothes, abuse, beat, grab the lower body, touch the breast and other acts at the scene of "catching rape", which was motivated by anger and subjective purpose. It is to derogate the victim's personality and reputation. No matter Bai himself or Xiao Wang and other criminal suspects had no sexual thoughts about the victim at the time of the crime, and subjectively did not have the intention to satisfy the obscene and shameless hooligan psychology. Therefore, the behavior of Xiao Wang and others does not meet the constitutive elements of the crime of compulsory indecency. (II) the behavior of Bai and others does not meet the constitutive elements of the crime of compulsory insult. In the "Modern Chinese Dictionary", the word "insult" has only one meaning, that is, "to damage the personality or reputation of the other party and suffer shame", but "insult" is given a different meaning in the criminal law. The "insult" in the crime of insult in Article 246 of the Criminal Law uses the general meaning of the term, that is, the infringement of citizens' general personal dignity, focusing on the protection of citizens' right of reputation. The crime of compulsory insult stipulated in Article 237 of the Criminal Law is separated from the crime of hooliganism in the Criminal Law of 1979. From its historical evolution and its position in the whole criminal law system, it can be seen that the crime of compulsory insult belongs to the crime of infringing on sexual rights and sexual health, focusing on the personal interests and dignity of women's right to decide on their own sex, the "insult" in the count of the crime should be understood as being related to "indecency" or at least equivalent and equivalent in guilt. Different from the insult in the crime of insult, the act of compulsory insult will of course damage and humiliate the other party's personality or reputation, but the crime is limited to the behavior of the perpetrator related to the right to sexual health for the purpose of sexual stimulation and sexual satisfaction. From the point of view of the object of the crime, the crime of compulsory insult is that the perpetrator commits a crime out of hooligan motive, and its object is an unspecified woman, who is randomly selected in the commission of the crime. In this case, Bai and others collected evidence of her husband's infidelity for the purpose of "catching rape", and the object of the violation was specific. From the subjective aspect of the crime, Bai did not insult the victim out of a hooligan motive seeking stimulation. The location of the crime was Bai's own home, which objectively did not endanger the social management order. Bai's purpose was not to accomplish his own hooligan purpose, but only to derogate the victim's personality, venting anger. Therefore, in this case, the behavior of Bai, Xiao Wang and others is based on venting revenge and insulting the victim, making him embarrassed, damaging his reputation and lowering his social evaluation. The object of this behavior is specific. Bai, Xiao Wang and others subjectively do not have the hooligan motive and purpose of pursuing sexual stimulation and sexual satisfaction, and their behavior does not meet the constitutive requirements of the crime of compulsory insult. (III) the behavior of openly insulting others must reach the degree of seriousness to constitute the crime of insulting. The behavior of Bai and others has not reached the degree of seriousness and does not constitute the crime of insulting. According to Article 246 of China's Criminal Law, the crime of insult "refers to the use of violence or other means to openly derogate the personality of another person, damage the reputation of another person, and the circumstances are serious. The crime of the preceding paragraph shall be dealt with only if told, except for those that seriously endanger social order and national interests." The crime of insult violates the object of abstract human dignity and reputation right; the subjective aspect of the perpetrator is generally motivated by revenge, jealousy, and anger, with the purpose of belittling the personality of others and destroying their reputation. Although there is an act of blatant insult to others, it does not belong to the serious circumstances, but only belongs to the general civil tort, that is, the act of blatant insult to others must reach the serious degree to constitute the crime of insult. The so-called serious circumstances, mainly refers to the means bad, serious consequences and other situations. In this case, Bai witnessed her husband sleeping naked with the victim on the spot, and his behavior was out of control. He carried out various humiliating behaviors to the victim. Subjectively, he wanted to make the victim make a fool of himself, mainly out of anger and revenge. The victim in this case knew that Wang was married and still had an improper relationship with him for a long time, destroying other people's families, and had a major fault for the occurrence of this case. Moreover, the case occurred in Bai's own home, which was a closed space. Although Bai and others took photos and videos of the incident, they did not upload the photos and videos to the Internet or forward them to social platforms, it did not cause the victim's social evaluation to be reduced on a large scale, nor did it cause consequences that harmed the public order and national interests. In addition, although Bai and others have beaten the victim, they only cause the harmful consequences of minor injuries to the victim. After the incident, Bai took the initiative to contact the victim, actively compensated the victim and obtained understanding. This case was caused by the intensification of marriage and family conflicts. Bai was unable to correctly handle the marriage crisis. In order to vent his anger and retaliate, the act of "catching rape" violated the law. Considering the circumstances of this case and the victim's own fault, the behavior of Bai and others has not yet reached The degree of seriousness should not be recognized as constituting a crime of insult.

2022-04-06

Viewpoint... A brief analysis of the legal application of the reverse denial of legal personality and horizontal denial.

1. Introduction The denial of legal personality, also known as "piercing the veil of legal person", refers to a post-regulation means set up to prevent the shareholders of a limited liability company from abusing the basic principles of company law, such as the independence of corporate personality and the limited liability of shareholders, to harm the interests of the creditors of the company. According to the current law, the denial of legal personality can make the shareholders bear joint and several liability for the company's debts, that is, to realize the "forward" denial of legal personality. However, there are disputes in judicial practice whether the company can bear joint and several liabilities for shareholders, and control shareholders or actual controllers to control multiple subsidiaries or affiliated companies, that is, to realize the "reverse" denial or "horizontal" denial of legal personality. This paper aims to sort out the relevant legal provisions and analyze the application of reverse denial and horizontal denial of legal personality in judicial practice. 2. relevant legal provisions and provisions of the Nine People's Minutes (I) relevant legal provisions Article 20, paragraph 3, of the Company Law stipulates that if the shareholders of a company abuse the independent status of the company as a legal person and the limited liability of shareholders to evade debts and seriously harm the interests of the creditors of the company, they shall bear joint and several liability for the debts of the company. Article 63 of the Company Law stipulates that if a shareholder of a one-person limited liability company cannot prove that the company's property is independent of the shareholder's own property, he shall be jointly and severally liable for the company's debts. In addition, the second paragraph of Article 21 of the Company Law (Revised Draft), which was publicly released on December 24, 2021 for comments, states that if the shareholders of a company use two or more companies under their control to commit the acts specified in the preceding paragraph, each company shall be jointly and severally liable for the debts of any one company. (Hint: The draft is not yet in force) Relevant Provisions of (II) Nine Minute Minutes The Minutes of the National Court Conference on Civil and Commercial Trials (Law [2019] No. 254) (hereinafter referred to as the "Nine People's Minutes"), in the section on "(IV) Corporate Personality Denial" in "2. Trial of Corporate Dispute Cases", details the content of the system of corporate personality denial and confirms the four principles applicable to the system of corporate personality denial. First, it can only be applied if the shareholders have committed an act of abusing the independent status of the company as a legal person and the limited liability of the shareholders, and the act has seriously harmed the interests of the company's creditors. Damage to the interests of creditors mainly refers to the abuse of rights by shareholders to make the company's property insufficient to pay off the claims of the company's creditors. causal logic] Second, only the shareholders who have committed the abuse of the independent status of legal persons and the limited liability of shareholders shall bear joint and several liability for the company's debts, while other shareholders shall not bear this liability. subject scope limit] Third, the denial of corporate personality is not a comprehensive, complete and permanent denial of the company's legal personality, but only in specific cases based on specific legal facts, legal relations, breaking through the general rule that shareholders are not responsible for the company's debts, exceptionally ordered to bear joint and several liability. The res judicata of the judgment of the people's court denying the personality of the company in the individual case only binds the parties to the action, does not apply to other litigation involving the company, and does not affect the survival of the company's independent legal personality. If other creditors file a corporate personality denial action, the facts found in the effective judgment can be used as evidence. res judicata range limit] Fourth, the abuse provided for in article 20, paragraph 3, of the Companies Act, which is common in practice in situations such as mixed personalities, excessive dominance and control, and significant undercapitalization. When trying a case, it is necessary to make a comprehensive judgment based on the facts of the case identified, which is not only prudent to apply, but also when used. case enumeration] In addition, when discussing the situation of "excessive domination and control" in detail, the Jiumin minutes clearly states that "controlling shareholders or actual controllers control multiple subsidiaries or affiliated companies, abuse control rights to make the property boundaries of multiple subsidiaries or affiliated companies unclear, financial mixing, mutual transmission of interests, loss of personality independence, and become controlling shareholders to evade debts, illegal operations, or even illegal and criminal tools, the facts of the case can be integrated, deny the legal personality of the subsidiary or related company, and order joint and several liability". The paragraph states that, on the one hand, the subject scope of the denial of legal personality extends to the controlling shareholder and the actual controller, and on the other hand, further clarifies the feasibility of reverse denial and horizontal denial. The Main Controversies in 3. Judicial Practice Corporate personality denial has its independent value and significance in practice, from the legislative and judicial value orientation, not only to maintain the principle of corporate independence represented by the personality denial system, but also can not make the independence of legal personality become the "wall of sighs" for shareholders to abuse their rights ". Therefore, the application of the system of personality denial in judicial practice is in a state of caution and permission. Generally speaking, the focus of the dispute mainly lies in the following aspects: (I) lack of legal basis The current legal provisions of the Company Law only provide for forward denial, and it is difficult to quote the judicial decision as a legal basis for reverse denial or horizontal denial, and if the third paragraph of Article 20 of the Company Law is applied directly, there is a suspicion of judicial creation of law. (II) whether there is a necessity to apply The significance of the denial of legal personality is that when the shareholders abuse the independent status of the company's legal person so that the company's property is not enough to pay off the claims of the company's creditors, if the legal person veil can not be pierced, it will lead to the creditor's rights and interests difficult to remedy. When the shareholders themselves have debts, creditors can protect their rights and interests in one or more ways, such as freezing and enforcing the shareholders' equity in the company, or exercising the creditor's right of avoidance, according to the law. It is controversial whether it is necessary to carry out reverse denial and force the company to bear joint and several liability for shareholders' debts. However, the author believes that in the case of freezing the company's equity only, shareholders may still dispose of the company's assets, complicating the way for creditors to remedy their rights and interests. In addition, when a company has both enforceable assets and a sizeable liability, the value of its equity may be low (or even zero), at which point creditors will not be able to be remedied by freezing the company's equity, while creditors' interests can be remedied by sealing up and enforcing the company's assets through the denial of legal personality. Whether the (III) results in the impairment of "bona fide" shareholders' equity The judicial jurisprudence of the Supreme People's Court has affirmed the application of the reverse denial of legal personality of a one-person limited company, and its reasoning part contains the statement that the company's joint and several liability to shareholders in this case will not harm the interests of others. However, the summary of the nine people defines the scope of abuse of right holders as "controlling shareholders or actual controllers". Article 20 of the Company Law and Article 21 of the Company Law (Revised Draft) define the scope of abuse of right holders as shareholders of the company, which indicates that the possibility of denial of legal personality in the case of multiple shareholders in the company has not been ruled out. At this time, the reverse denial or horizontal denial of legal personality is applicable, how to protect the rights and interests of other "bona fide" shareholders and extend the controversy and difficulty of legal personality denial from the "shareholder-creditor" level to the "shareholder-shareholder" and "controlling shareholder (actual controller)-small and medium-sized shareholders" level, further aggravating the controversy and difficulty of reverse denial and horizontal denial of legal personality in practice. 4. related cases (I) Case 1:(2020) Supreme Famin Shen No. 2158 Basic case: The defendant Zhongsen Hua Real Estate Company is a wholly-owned subsidiary of the defendant Zhongsen Hua Investment Company, Zhongsen Hua Investment Company in the acquisition of the third-party company held by the target company's equity, agreed to the Zhongsen Hua Real Estate Company to transform the construction of shops and other physical assets to pay the equity transfer. Later, the third-party company sued the court for compensation from Zhongsen Hua Investment Company and Zhongsen Hua Real Estate Company for the value of the store that could not be delivered under the contract. The Hubei Provincial Higher People's Court of the first instance held that although both Zhongsenhua Investment Company and Zhongsenhua Real Estate Company are registered as corporate legal persons, they are closely related. Zhongsenhua Real Estate Company is a project company initiated and established by Zhongsenhua Investment Company. During the period when Zhongsenhua Real Estate Company has more than two shareholders, Zhongsenhua Investment Company has an absolute controlling position. Zhongsenhua Investment Company has not submitted evidence to prove that the company's property is independent of the shareholder's property, and the two companies have mixed personalities and should be regarded as the same subject in law. The law stipulates that the shareholders shall be jointly and severally liable for the debts of the company, and vice versa, and the company shall also be jointly and severally liable for the debts of the shareholders. The Supreme Court supported the views of the court of first instance in the second instance and retrial review, and the retrial review ruling argued as follows: The original judgment of the (I) applied the above provisions to determine that Zhongsenhua Investment Company and Zhongsenhua Real Estate Company constitute a personality mix, and there is nothing improper. First of all, from the industrial and commercial registration, Zhongsenhua Real Estate Company is a one-person limited liability company. Since July 2013, the shareholder of China Senhua Real Estate Company is China Senhua Investment Company, with a shareholding ratio of 100. Secondly, in the original trial, although China Senhua Investment Company and China Senhua Real Estate Company respectively submitted industrial and commercial registration data, annual inspection reports, tax payment certificates and other evidence, it was not possible to determine the fact that China Senhua Real Estate Company is the project company of China Senhua Investment Company and the two companies promised to bear joint and several liability for the arrears of the project involved. The original judgment found that Zhongsenhua Investment Company, as a 100 per cent controlling shareholder, did not adduce sufficient evidence to prove that the property of Zhongsenhua Real Estate Company was independent of each other and was not improper. Third, Zhongsenhua Real Estate Company is a real estate project company established by Zhongsenhua Investment Company for the development of the Zhongsenhua International City project. At the beginning of its establishment, Zhongsenhua Real Estate Company was effectively controlled by Zhongsenhua Investment Company and its shareholders. It can be seen from the resolution of the shareholders' meeting of Zhongsenhua Real Estate Company and the "entrusted loan contract" of Changfu Fund, Huaxia Bank and Zhongsenhua Real Estate Company that Zhongsenhua Real Estate Company and Zhongsenhua Investment Company jointly undertake to bear joint and several liability for the debt settlement of the real estate project involved in the case. Although Zhongrong International Trust Co., Ltd. held a short-term 100 per cent stake in Zhongsenhua Real Estate Company, it later changed its registration to Zhongsenhua Investment Company. Fourth, although the provisions of Article 63 of the Company Law are that shareholders bear joint and several liability for the company's debts, in the current judicial practice, the company can also bear joint and several liability for the shareholders' debts in the case of the mixing of shareholders and the company's personality. The original judgment of the (II) found that the Store Transfer Contract and the Supplementary Agreement were valid and not improper. The above-mentioned agreement between Zhongsenhua Investment Company and Aerospace Bellows Company specifies the specific subject matter of the equity transfer price to be paid in kind. The original judgment found that Zhongsenhua Investment Company had the right to dispose of the real estate developed in the name of Zhongsenhua Real Estate Company, which was not improper. Zhongsenhua Real Estate Company on the grounds that it is not the subject of the contract, in violation of the principle of contract relativity, etc., argues that it should not be liable, and the Court does not support it. (II) Case 2:(2020) Ji 11 Min Zhong 27 Basic case: The two defendants Baijin Company and Baifu Company are all limited liability companies with natural person Li Jing as the sole shareholder. On December 13, 2015, the plaintiff Juhua Company borrowed 10 million yuan from Seascape Company, and Budweiser Company and Li Jing provided guarantee. The plaintiff sued for a judgment that the second defendant was jointly and severally liable for the debts incurred by Li Jing as a result of the above-mentioned loans. In this case, the court of first instance and the court of second instance have very different views. the court of first instance (the people's court of taocheng district, hengshui city, hebei province) held: regarding the relationship between the defendant baijin company and li jing. First, Li Jing is the guarantor in the mortgage agreement signed by Budweiser Company, Li Jing and the plaintiff, but the bills mortgaged by Li Jing are owned by the defendant Baijin Company and endorsed and transferred to the plaintiff by Baijin Company. Therefore, Baijin Company is liable for Li Jing's personal debts with its own property. Second, according to the facts found in the civil judgment No. 1269 (2016) Ji 11 min zong made by Hengshui municipal people's court, baijin Company borrowed money from Gucheng County Yinxin Microfinance Co., Ltd., but all the loans were transferred to Li Jing's personal account, and part of the interest was also paid to Gucheng County Yinxin Microfinance Co., Ltd., which shows that the defendant Baijin Company used Li Jing's personal bank account. According to the above two facts, it can be seen that the assets of the defendant Baijin Company cannot be distinguished from Li Jing's personal property, and it should be determined that Li Jing's personal property is mixed with the assets of the defendant Baijin Company. Regarding the relationship between the defendant Baifu Company and Li Jing. According to Article 63 of the Company Law, when the creditors of shareholders claim to deny the corporate personality of the company and require the company to bear joint and several liability for the debts of shareholders, the company shall bear the burden of proof for the independence of property. In this case, the defendant Baifu Company did not provide evidence to prove that his property is independent of Li Jing's personal property, and it should be determined that the assets of the defendant Baifu Company and Li Jing are mixed. Because Li Jing's personal assets are mixed with the assets of the defendant Baijin Company and Baifu Company, which can not guarantee the company to implement the principle of capital maintenance and capital unchanged, but also can not determine the difference between the shareholders' personal assets and the company's assets, and then affect the material basis for the company and shareholders to undertake to pay off debts, the legal personality of the defendant Baijin Company and Baifu Company is skeletal, the formation of Li Jing and the defendant Baijin Company, Li Jing and Baifu Company mixed into one situation, and its assets mixed has caused the interests of creditors can not be realized, so the defendant Baijin Company, Baifu Company should bear joint and several liability for the debts of Li Jing. The court of second instance (the people's Court of Hengshui City, Hebei Province) held that Article 63 of the Company Law stipulates that in the case of external liabilities of a one-person limited company, shareholders shall bear the debts of the company. In this case, Juhua Company required Baifu Company to bear joint and several liability for the debts owed by Li Jing personally on the grounds that the property of Li Jing was mixed with Baifu Company, which did not comply with the above-mentioned legal provisions. Therefore, even if Li Jing's personal property and Baifu's property are mixed, Juhua Company requires Baifu Company to bear joint and several liability for Li Jing's personal debts, there is no corresponding legal basis, and the Court does not support Juhua's claim against Baifu Company in this case. As for Baifu Company's appeal claim that Li Jing's personal property and Baifu Company's property are not mixed, Juhua Company's lawsuit in this case belongs to individual settlement and other claims, the Court will no longer be involved. Baijin Company did not appeal against the judgment of the first instance, which was a free punishment of its own civil rights, and the court upheld the judgment of the first instance that Baijin Company was jointly and severally liable for the debts owed by Li Jing. In summary, Baifu's appeal that it should not bear joint and several liability for Li Jing's personal debts was established, and the Court supported it. The first instance ruled that Baifu Company's joint and several liability for Li Jing's personal debts was an error of applicable law, and the Court corrected it. (III) Case 3:(2018) Liao 03 Min Zhong No. 3920 Basic facts of the case: This case is an enforcement objection. After the appellee Dongjian Engineering Company applied for enforcement due to a dispute with a third party Zongjun Real Estate Company over a construction contract, the court of first instance made an enforcement ruling on August 16, 2017,

2022-04-06

Viewpoint. The practical relationship between government procurement services and government procurement services -- from the perspective of legal service procurement of provincial budget units in Shandong Province.

As an important reform measure to innovate the way of providing government public services, promote the transformation of government functions and fully implement performance management, government purchase of services is an important institutional innovation of government procurement. In view of the subtle differences between the central budget unit and the local budget unit in Shandong Province in government procurement services and government purchase services, in order to accurately explain the practical relationship between the two and reflect the correlation between the two and specific industries, this paper only takes the legal service procurement of the provincial budget unit in Shandong Province as the perspective to discuss the government procurement services and government purchase services, in order to provide ideas and practical reference for government procurement and government purchase services. 1. Overview (I) the concept of government procurement and government purchase of services According to the provisions of the Government Procurement Law, government procurement refers to the use of financial funds by state agencies, institutions and organizations at all levels to purchase goods, projects and services within the centralized procurement catalog formulated in accordance with the law or above the procurement limit standard; this law applies to government procurement within the territory of the People's Republic of China. Accordingly, the government procurement behavior should be defined from the aspects of the procurement subject, the source of funds, the centralized procurement catalogue and the procurement quota standard, the procurement target, the geographical scope and so on. According to the provisions of the measures for the Administration of Government purchase of Services (decree No. 102 of the Ministry of Finance), government purchase of services refers to the behavior that state organs at all levels hand over to qualified service suppliers in accordance with the methods and procedures of government procurement that fall within the scope of their own duties and are suitable for providing services through market-oriented means, and pay fees to them according to factors such as the quantity and quality of services; the specific scope and content of services purchased by the government shall be managed by guiding catalogues, which shall be made public in accordance with the law. It is generally believed that the government's purchase of services should be defined in terms of the purchasing subject and the guiding catalogue. (II) the connection and difference between government procurement services and government purchase services 1. In terms of subject, the subject of government procurement includes state organs, institutions and organizations. The main body of government purchases of services is state agencies. At the same time, party agencies, CPPCC agencies, democratic party agencies, institutions that undertake administrative functions, and group organizations that use administrative establishments should use financial funds to purchase services. 2. In terms of scope, government procurement projects are included in the centralized procurement catalog, as well as projects outside the centralized procurement catalog and above the procurement limit standard. In practice, the "Notice of the Shandong Provincial Department of Finance on Printing and Distributing the Centralized Procurement Catalogue and Standards of the Shandong Provincial Government" (Lu Cai Cai [2020] No. 30, hereinafter referred to as "Lu Cai [2020] No. 30") The procurement catalog contains 13 service items; government purchases of service items are items in the guiding catalog, the "Notice of the Shandong Provincial Department of Finance on Printing and Distributing the Guiding Catalogue of Services Purchased by the Shandong Provincial Government (2021 Edition)" (Lu Cai Cai [2021] No. 18, hereinafter referred to as "Lu Cai [2021] No. 18") The guiding catalog contains 232 three-level service catalogs. 3. In terms of budgeting, both government procurement services and government procurement services shall be budgeted in accordance with the law. In addition, the Shandong Provincial Department of Finance on the issuance<山东省政府购买服务管理实施办法>通知》（鲁财采〔2021〕10号，以下简称“鲁财采〔2021〕10号文”）、《山东省财政厅关于2022年省级政府采购和政府购买服务预算编制及执行的通知》（鲁财采〔2021〕22号，以下简称“鲁财采〔2021〕22文”）和《山东省财政厅关于2021年省级政府采购和政府购买服务预算编制及执行的通知》（鲁财采〔2020〕36号，以下简称“鲁财采〔2020〕36号文”）的规定，对政府购买服务项目同时属于政府采购的，政府购买服务项目预算应当与政府采购预算合并编制。   4.在采购方式和程序上，政府采购服务项目可以采用公开招标、邀请招标、竞争性谈判、单一来源采购、竞争性磋商、框架协议等6种采购方式，并依照相关的采购程序组织采购活动。政府购买服务项目原则上应当按照政府采购的方式和程序执行，但山东省地方购买主体购买政府集中采购目录外且采购限额标准以下的服务项目，可采用竞争性评审、定向委托等简易方式确定承接主体。   5.在合同类型的适用上，政府采购服务项目和政府购买服务项目的合同类型均应按照民法典规定的典型合同类别，并结合采购标的的实际情况确定。     二、法律服务的范围   （一）政府采购法律服务的范围   根据《政府采购法》及其实施条例的规定，服务是指除货物和工程以外的其他政府采购对象，包括政府自身需要的服务和政府向社会公众提供的公共服务。   财政部《关于印发<政府采购品目分类目录>(Caiku [2013] No. 189, hereinafter referred to as "the catalogue"), as an important administrative normative document regulating the application of centralized procurement catalogues, government procurement budgeting and other government procurement activities, has made specific norms on the relevant contents of legal services. According to the catalogue, "legal services" is a secondary item of business services, including legal litigation services, legal advisory services, legal aid services, intellectual property legal services, legal document agency services, notarization services, arbitration services, mediation services and 9 tertiary items of other legal services. Legal litigation services include criminal litigation legal services, civil litigation legal services, administrative litigation legal services, foreign-related litigation legal services and other legal litigation services; legal advisory services include criminal litigation legal advisory services, civil litigation legal advisory services, administrative litigation legal advisory services, foreign-related litigation legal advisory services and other legal advisory services; legal aid services include legal aid services for minors, legal aid services for vulnerable groups and other legal aid services; intellectual property legal services include trademark rights, patent rights, agency applications and other legal services; legal document agency services include contract document agency services, will document agency services, property document agency services, foreign-related legal document agency services and other legal document agency services; notarization services include contract notarization services, will notarization services, property notarization services, document and certificate notarization services, notarization services for identity and social relations, notarization services for public welfare activities and other notarization services; arbitration services include foreign-related arbitration services, economic arbitration services, labor arbitration services, patent and other intellectual property arbitration services and other arbitration services; mediation services include civil mediation services, labor mediation services and other mediation services. Other legal services include law-related investigation, evidence collection, identification services, etc. Scope of (II) Government Purchase of Legal Services According to the "Administrative Measures for Government Purchase of Services" (Order No. 102 of the Ministry of Finance) and the "Opinions of the Ministry of Justice and the Ministry of Finance on Establishing and Improving the Mechanism for Government Purchase of Legal Services" (Si Fa Tong [2020] No. 72, hereinafter referred to as "Si Fa Tong [2020] No. 72"), the scope of government purchase of legal services includes public legal services provided by the government to the public and auxiliary legal services required for the government to perform its duties. According to the provisions of Sifatong [2020] No. 72, the public legal services provided by the government to the public are mainly public, public, inclusive and comprehensive legal services provided by the government to citizens, legal persons and other organizations in order to protect and improve people's livelihood, promote grass-roots governance according to law, and maintain social harmony and stability. Including legal aid services; legal assistance services for lawyers on duty; village (residential) legal advisory services; rule of law publicity and education services; people's mediation services; public legal service hotlines, networks, and physical platform legal consulting services; public welfare lawyer mediation, lawyer agency complaints, Lawyers resolve legal and litigation-related petition cases; public welfare notarization, judicial appraisal services; arbitration committees participate in grassroots dispute resolution services; etc. According to the provisions of 2020 No. 72, the auxiliary legal services required by the government to perform its duties are mainly government legal advisory services and other auxiliary legal services provided by social forces such as lawyers and grass-roots legal service workers entrusted by the government, including participation in major decision-making, review of the legality of major law enforcement decisions, and provision of legal advice for major decision-making and major administrative acts; participate in the negotiation of cooperation projects, draft and modify important legal documents or contracts; participate in the handling of administrative reconsideration, litigation, arbitration and other legal affairs; provide legal services for the handling of law-related litigation cases, letters and visits, and major emergencies; participate in the rule of law Construction-related research, training, supervision, etc.; handle contract certification, rights confirmation, evidence preservation, on-site supervision and other notarization for administrative activities; etc. Although Lu Caicai [2021] No. 18 only stipulates "legal services" in the second-level catalog of the government's auxiliary service catalog, it includes "public welfare" in the "social security" second-level catalog of the basic public service catalog. Three items including basic legal services, implementation of legal aid projects, and legal aid for notarization and judicial appraisal. Therefore, the guiding catalogue of services purchased by the Shandong provincial government is included in seven three-level catalogues related to legal services, which are public welfare basic legal services, including public welfare legal advisers, consultation, defense, agency, notarization, judicial appraisal and other services for vulnerable groups, small and micro enterprises, rural collective economic organizations, villages (communities), and the implementation of legal aid projects, that is, to provide free legal services for parties with financial difficulties and in line with the scope of assistance matters or special cases; legal aid for notarization and judicial expertise; community (village) legal adviser services; administrative litigation agent response legal services, that is, administrative litigation agent response, Administrative reconsideration legal services; government legal advisory services; government legal advisory services. From the above-mentioned norms, different from the government procurement of legal services based on legal relations, the scope of government procurement of legal services highlights the public and public welfare, focusing on improving people's livelihood, serving the important goal of transforming government functions and improving the performance of financial funds. 3. the Practice of Legal Service Procurement of Provincial Budget Units in Shandong Province (I) Budgeting Lu Caicai [2020] 30 provisions of the centralized procurement directory, including the "legal services" items (code: C0801). Lu Caicai [2021] No. 18 also contains legal services related content. Therefore, different budgets should be prepared according to different subjects. State organs, party organs, CPPCC organs, democratic party organs, public institutions undertaking administrative functions and mass organizations using administrative establishment, it should be in accordance with the "Notice of the Shandong Provincial Department of Finance on the Preparation and Implementation of the Provincial Government Procurement and Government Purchase Service Budget in 2021" (Lu Caicai [2020] No. 36), and the "Shandong Provincial Department of Finance on the Provincial Government Procurement and Government Purchase Service Budget in 2022" "Notice on the Preparation and Implementation" (Lu Caicai [2021] No. 22) and other documents related to budgeting requirements, when purchasing legal services, the government procurement budget and the government purchase service budget should be combined. The provincial budget units in Shandong Province, which are other than the main body of government purchase services, need to prepare the government procurement budget if they use financial funds to purchase legal services. Selection of (II) procurement methods and procedures According to the provisions of Lu Cai Cai [2020] No. 30, legal services are included in the centralized procurement catalogue of local budget units in Shandong Province. According to the "Government Procurement Law" and its implementation regulations, Lu Caicai [2020] No. 30, Lu Caicai [2021] No. 10, and the "Shandong Provincial Finance on Printing and Distributing the Shandong Provincial Government Purchase Service Competitive Evaluation and Directional Entrustment Management Measures" Notice "(Lu Caicai [2020] No. 8), the provincial purchasers in Shandong Province can organize the procurement of legal services by means of public bidding, invitation to tender, competitive negotiation, single-source procurement, competitive consultation and framework agreement, but it is not appropriate to purchase legal services through competitive evaluation, directional entrustment and other simple methods. It should be noted that if the annual legal service procurement budget reaches more than 4 million, the public bidding procurement method should be adopted. Due to special circumstances, if it is necessary to adopt procurement methods other than public bidding, an application shall be submitted through the "Official Document Circulation" module of the "Shandong Provincial Government Procurement Management Transaction System" before the start of the procurement activity. Except for the single-source procurement application, which is reviewed by the Shandong Provincial Department of Finance, the other procurement method change applications are reviewed by the competent budget unit. In addition, for the purchase of legal services by means of framework agreement procurement, it should be noted that the first stage of the solicitation process and the conclusion of the framework agreement are the responsibility of the centralized procurement agency. At the same time, the "Interim Measures for the Administration of Shandong Provincial Government Procurement Online Shopping Mall" (Lu Cai Cai [2020] No. 34) and the "Notice of Shandong Provincial Department of Finance and Shandong Provincial Department of Justice on Further Doing a Good Job in Legal Service Designated Procurement" (Lu Cai Cai [2020] No. 34) stipulate that if the annual budget does not exceed 4 million yuan, it can be implemented through designated procurement in Shandong Provincial Government Procurement Online Shopping Mall. In the procurement mechanism, if the procurement budget amount does not reach 500000 yuan, the legal service organization can be determined through direct purchase or bidding. For more than 500000 yuan, the legal service organization shall be determined through bidding. (III) performance acceptance and performance evaluation (evaluation) State organs, party organs, CPPCC organs, democratic party organs, public institutions undertaking administrative functions and mass organizations using administrative establishment, in accordance with the requirements of laws and regulations such as the Government Procurement Law and its implementation regulations, the measures for the Administration of Government purchase Services (decree No. 102 of the Ministry of Finance) and the Circular of the Shandong Provincial Department of Finance on issuing the measures for the Administration of performance acceptance of Government Procurement (Lu Cai [2021] No. 25), the performance acceptance of the procurement of legal services shall be carried out, and the purchase of legal services shall be evaluated in advance. If the provincial budget units of Shandong Province, other than the main body of government purchase services, use financial funds to purchase legal services, they need to carry out the performance acceptance of the procurement legal services. 4. Conclusion All in all, there are obvious differences and close connections between government procurement services and government procurement services, especially in the system that connects the two. For example, the implementation, supervision and management of government procurement services are in accordance with government procurement laws., Administrative regulations and related systems are implemented. In practical operation, we should also realize that the subject of government procurement includes the subject of government purchase of services, and should be distinguished or competing in the application of relevant rules and procedural processing.</政府采购品目分类目录></山东省政府购买服务管理实施办法>

2022-04-06

Viewpoint | Information Disclosure Obligations of Related Parties to Bankruptcy Matters of Listed Companies-Interpretation of No. 13 and No. 14 of the Self-Regulatory Guidelines for Listed Companies on the Shenzhen Stock Exchange

On March 31, 2022, the "Shanghai Stock Exchange Listed Companies Self-Regulatory Guidelines No. 13-Bankruptcy Reorganization and Other Matters" and "Shenzhen Stock Exchange Listed Companies Self-Regulatory Guidelines No. 14-Bankruptcy Reorganization and Other Matters" will be implemented simultaneously. The above guidelines issued by the Shanghai and Shenzhen Stock Exchanges are basically the same. They mainly stipulate in detail the listed company's reorganization, reconciliation, and bankruptcy liquidation matters (collectively referred to as bankruptcy matters) from a regulatory perspective. The information disclosure obligations of related parties to bankruptcy matters such as senior executives, bankruptcy administrators and their members, creditors, and reorganization investors, and pointed out that listed companies that implement pre-reorganization and other procedures, as well as the bankruptcy of the controlling shareholder, the largest shareholder, subsidiaries and participating companies that have an important impact on the operation of the listed company, which may have a greater impact on the trading prices of the listed company's stocks and their derivatives, refer to the above guidelines to perform Information disclosure obligations. The above two guidelines are of great guiding and normative significance for us to deal with the bankruptcy of listed companies and their affiliated companies. In order to facilitate the operation, the author combed the information disclosure obligations and corresponding obligation subjects in the various stages of bankruptcy matters of listed companies stipulated in the guidelines. See the following table for details: Note: This table is a review for the purpose of intuitively understanding the content of information disclosure, and the specific provisions are subject to the content set out in the guidelines.

2022-04-02

Viewpoint | Determination of evidence of domestic violence in divorce proceedings

Basic case In September 2012, Hu and Chen confirmed their love relationship. The two registered their marriage on May 20, 2013 and had a daughter after marriage. After being dismissed by the unit in 2015, Chen became more and more irritable. He often fought against Hu because of family chores, and he would be driven out of the house every time he finished playing Hu. During the Spring Festival in 2017, after being drunk, Chen threw a knife at Hu because he was dissatisfied with Hu's failure to clean up the housework in time. Chen's behavior made Hu completely disheartened, and he took his daughter back that night. At his parents' home, Hu sued the court for divorce. After receiving the summons from the court, Chen immediately rushed to Hu's parents' house to squat. As soon as he saw Hu, he smashed his head with a blunt object. Hu called the police and made an injury appraisal. The court of first instance determined that Chen's behavior constituted domestic violence based on the evidence in the case, and the relationship between the two parties had indeed broken down, and the judgment allowed both parties to divorce. Chen refused to appeal, the court of second instance rejected the appeal and upheld the original verdict. Legal provisions Article 1079, paragraphs 2 and 3, of the the People's Republic of China Civil Code on Marriage and Family stipulates: "Divorce shall be granted if the relationship has indeed broken down and mediation is invalid. Divorce shall be granted if mediation is invalid under any of the following circumstances: (2) Domestic violence or maltreatment or abandonment of family members;" Lawyer Analysis Numerous cases show that there is only a difference between zero and numerous domestic violence. After being abused for the first time, the parties often do not realize the seriousness of the problem, and may even be moved by the perpetrator's subsequent repentance and compensation behavior, and then connive at their next violence. It can be seen that tolerance is a double-edged sword, and the compromise of the parties to domestic violence may bring irreparable harm to themselves. Therefore, the lawyer advises the client to collect and retain evidence in time to prove the existence of domestic violence after suffering domestic violence, because the implementation of domestic violence is one of the legal reasons for divorce. In the case of invalid mediation, even if it is the first time to sue for divorce, the court should also grant divorce. However, if the evidence of the parties is insufficient to determine the fact of domestic violence, in the trial practice, for the first time to sue for divorce, and there is no sufficient evidence to prove that the relationship between the two parties has indeed broken down, the people's court will often stand in the maintenance of marriage and family From the perspective of stability, the general judgment does not divorce. The ways for the parties to collect evidence can be divided into the following: 1. After suffering from domestic violence, they should directly report to the public security organ or seek help from the neighborhood (village) committee, government agencies, women's federations, work units, etc. In the future litigation, the parties may request the relevant departments to issue relevant certification materials, especially to apply for the police record, warning letter and introduction letter of injury examination of the public security organ. 2, keep the diagnosis certificate, case book, medical expenses bills, etc. The parties injured in domestic violence should go to the hospital in time. In addition, they should take photos at that time and keep the photos. The parties may also go to the appraisal center or entrust the Women's Federation to handle the injury appraisal work. 3. Keep the original audio-visual materials and repentance written after domestic violence. If conditions permit, the party concerned can make audio or video recording when suffering from domestic violence. If there is an eyewitness, he can apply for the witness to testify in court. At the same time, he should pay attention to keeping the letter of repentance written by the perpetrator after domestic violence. The evidence collected in the first way, especially the police records, warning letters and injury appraisal opinions of the public security organs, is the most powerful to identify the existence of domestic violence. If the party only submits medical records or photos of injuries, if there is no other evidence to strengthen them, it is difficult to determine that the injury is caused by spousal violence if the other party denies it.

2022-04-01