Real estate perspective: where is the small property right house? -- Analysis of the legal issues related to the small property right house

Since 2003, the concept of "small property room" has begun to enter people's lives. In theory, this is not a professional legal concept, but more like a special title in people's daily habits. As for the definition of "small property right house", there are many opinions in academic circles. The author combines relevant laws and regulations and his own work experience to define "small property right house" as follows: "it refers to the housing built on rural collective land, without paying the land transfer fee, without obtaining the housing ownership certificate issued by the national housing management department and used for sale". As the name implies, its relative concept is "large property right house", while large property right house refers to a house with a house ownership certificate issued by the national real estate administrative department, that is, a house with a real estate certificate. "Small" in 1. Legitimacy -- Small Property Right House and Illegal Construction Generally speaking, the "illegal construction" in the law refers to the construction of houses and facilities that are built outside the planning area without obtaining a construction project planning permit and in violation of the Land Management Law, the Urban and Rural Planning Law and other relevant laws and regulations. Therefore, from the perspective of the legality of housing construction behavior, small property houses can be divided into two categories: small property houses with illegal building procedures and small property houses with legal building procedures. For the convenience of distinction, the author calls the former "illegally built small property house", while the latter calls it "legally built small property house". (I) Illegal Construction of Small Property Houses-Characteristics 1. Such houses have not obtained the approval procedures for building land and construction planning, and the houses themselves are illegal construction; 2, such houses can not be legally registered original ownership of the house; 3. Such houses cannot be registered for the transfer of ownership of the house and obtain a certificate of ownership of the house; (in practice, a "certificate of ownership" is usually issued by the township or village committee to prove the so-called ownership of the house by the buyer); 4, the vast majority of village collective joint developers for external sales and construction. Small Property Houses Legally Built in (II)-Features 1. This kind of house itself is legally constructed, but because it is built on collective land without going through the land acquisition and transfer procedures, the house cannot be legally registered; 2. Such houses have de facto ownership, and the original takers of the houses are restricted to members of the collective economic organization; 3, this type of housing usually has a township or village committee issued a "certificate of property rights", in order to prove the ownership of property rights; 4. Some of these houses are built for external sales, and some are built for the villagers' own use, and then the villagers sell them to the outside world. (Note: The houses legally built by villagers on their homesteads do not belong to the category of small property houses referred to in this article, but if the villagers or village collectives sell their own legally built homesteads, they belong to the legal small property houses referred to in this article). To sum up, as far as small property rights houses are concerned, illegally built small property rights houses are illegal in land use, house construction, trading and other links; while legally built small property rights houses have passed the approval procedures such as rural construction planning permission and construction engineering construction permission, and the construction behavior is legal. Therefore, we can not generally think that the houses with small property rights are all illegal buildings and should be demolished, while the houses with small property rights are at greater risk of being forcibly demolished. "Small" in the Effectiveness of 2. Sale Contracts -- Analysis of the Effectiveness of Small Property Right House Sale Contracts Small property house legally built in (I) 1. The opposite party-urban residents: Article 10 of China's Constitution clearly stipulates that urban land belongs to the state. Land in rural and suburban areas, except for those owned by the state as stipulated by law, belongs to the collective; homesteads, private plots and private hills also belong to the collective. No organization or individual may appropriate, buy, sell or otherwise illegally transfer land. Article 2 of the Notice of the General Office of the State Council on Strengthening the Management of Land Transfer and Prohibiting Land Speculation (No. 39 [1999] of the State Council) stipulates: to strengthen the management of the transfer of farmers' collective land, it is strictly forbidden to illegally occupy farmers' collective land for real estate development; farmers' collective land use rights shall not be sold, transferred or leased for non-agricultural construction; farmers' houses shall not be sold to urban residents, nor shall urban residents be approved to occupy farmers' collective land to build houses, the relevant departments shall not issue land use certificates and real estate certificates for houses built and purchased in violation of the law. In addition, according to the "Notice of the General Office of the State Council on Strict Implementation of Laws and Policies on Rural Collective Construction Land", rural residential land can only be allocated to villagers in the village, and urban residents are not allowed to purchase homesteads, farmers' houses or houses with small property rights in the countryside. It can be seen that the law of our country clearly stipulates that rural houses can be allocated to the villagers of the village and the sale to urban residents is prohibited. Therefore, the contract of sale and purchase of small property houses by urban residents is generally recognized as an invalid contract. Related cases: Case 1:(2015) Hong Min San Zhong Zi No. 91 The judge's view in the civil judgment of the Intermediate People's Court of Nanchang City, Jiangxi Province: "Rural land, except for what is owned by the state by law, belongs to the collective ownership of farmers. The land attached to the demolition and resettlement houses in this case belongs to rural collective land. According to the" Notice of the General Office of the State Council on Strict Implementation of Laws and Policies on Rural Collective Construction Land "," Rural residential land can only be allocated to villagers in the village, and urban residents are not allowed to purchase homesteads, farmers' houses or small property houses in the countryside ". Homesteads, farmers' houses or small property houses can only be transferred among members of the same rural collective economic organization, the act of urban residents buying farmers' houses in rural areas is not protected by law, and the sale is generally invalid. (Court of Second Instance) The" Housing Subscription Agreement "signed by Wang and Huang violated the" Notice of the General Office of the State Council on Strict Implementation of Laws and Policies on Rural Collective Construction Land "that" rural residential land can only be allocated to villagers in the village., Urban residents do not get rural purchases of homesteads, farmers' houses or small property houses "and are invalid." Case 2:(2021) Yu 0329 Minchu No. 3446, Yichuan County People's Court, Henan Province, the judge's point of view in the civil judgment: "In this case, the land used in Yichuan County is the land collectively owned by the villagers of Zhongxi Village Committee, ...... The project has also passed the Yichuan County Rural Construction Planning Permit and Construction Permit, and the house involved is a small property house built legally. However, because the house involved in the case was a house with small property rights rather than a real commercial house, that is, a house with large property rights, and did not obtain a presale permit, the plaintiff Ding Yanli, as an urban resident and not a member of the collective economic organization of Zhongxi Village, did not have the qualification to purchase the houses built on the land collectively owned by the rural village, therefore, the" Yichuan Zhongxi Community Resettlement Housing Contract "signed by Ding Yanli and Hengtian Company is invalid because it violates the mandatory provisions of laws and administrative regulations." Of course, according to the actual situation, there are exceptions in judicial practice. If urban residents obtain the collective organization's household registration after signing the small property right house sales contract and are approved by the relevant departments, the house sales contract is generally recognized as valid. 2. The opposite party-members of other collective organizations: From the current judicial practice, the housing sales contract signed with the villagers outside the village tends to be invalid, and there are still judicial disputes. Related cases: Case 1:(2013) The judge's point of view in the civil judgment of the Intermediate People's Court of Ganzhou City, Jiangxi Province, No. 264: "The right to use rural collective land and homestead is a right enjoyed by members of rural collective economic organizations. It is related to the specific identity of the owner, and non-members of the collective economic organization have no right to obtain or obtain it in disguised form. The subject matter of the" House Sale Agreement "signed between the original and the defendant is not only the house, but also the right to use the corresponding collective land homestead. The" Housing Sale Agreement "signed by the original and the defendant violates the mandatory provisions of relevant laws and regulations of our country and should be deemed as an invalid agreement. The main body of the right to use the homestead is the rural residents of the specific rural collective economic organization. Although the appellant yin mou's household registration is a rural household registration, he is a villager of XX group, XX village, XX township, chongyi county, and is not a member of the collective economic organization of XX new village, XX town, chongyi county. he does not have the qualification to use the homestead of XX new village, and the house sale agreement signed by both parties is a kind of house sale on collective land, and the house sale has not obtained the consent of XX new village, XX town, therefore, the house sale agreement signed between the appellant Yin and the appellee Zhong is invalid." Case 2:(2018) The judge's view in the civil judgment of the Intermediate People's Court of Xuzhou City, Jiangsu Province, No. 233 of Su 03 Minchu: "The land under this house is the collective land of Peng Er Group, Sanzha Village, Qing 'an Town, Suining County. The resident ID card submitted by Han Xiufeng stated that his address was No. 102, Xinzhou Lane, Suicheng Town, Suining County, Jiangsu Province, and now No. 160, Sun Zhao Zhao Village. If you are not a member of the collective organization, you cannot be transferred to the house involved, nor can you go through the real estate registration procedures of the house involved." From the current judicial practice, for the house sales contract signed with the villagers outside the village, it is more inclined to determine that the contract is invalid. But the basic spirit of the civil code contract is autonomy, honesty and credit. If it is confirmed that such a contract is invalid, the seller is likely to claim that the contract is invalid on the basis of land appreciation, demolition compensation and other reasons, so that buyers who abide by the principle of good faith suffer losses, thus damaging the social foundation of public order and good customs and good faith. Therefore, the author thinks that the principle of party autonomy should be respected, depending on the specific circumstances of the case to determine whether the contract is valid. Note: China's laws and regulations do not expressly prohibit the signing of housing sales contracts with members of the collective economic organization, and because of the legal property rights certificate, such houses can be transferred among the members of the collective economic organization, at the same time, through the circulation within the collective economic organization can also make full use of idle homesteads. Therefore, the contract for the sale of small property houses between the members of the collective economic organization is generally recognized as legal and valid. (II) for illegally built small property houses For the illegal construction of small property rights generally directly determine the contract is invalid, as the subject matter of the contract of sale of housing, that is, illegal construction of small property rights housing itself is illegal construction, can not occur the legal effect of the establishment of property rights, can not be transferred at all, as the subject matter of the contract can not be realized, can not have legal effect. Moreover, the vast majority of such illegal small property rights housing sales are carried out on the premise of harming urban planning and environmental protection, public welfare undertakings and township collective public interests. If the contract is determined to be valid, it is equivalent to encouraging illegal construction in disguise. Therefore, it is the basic principle to determine that the contract is invalid. 3. small property rights do have a big risk-small property rights housing purchase risk. Conclusion At present, there are a large number of small property houses in many parts of our country, especially in the township area. The high demolition cost and huge waste of resources make the country unable to solve the small property market thoroughly and effectively in the short term. Although the price of small property right houses is relatively cheap, there is no need to pay taxes and fees in the transaction process, there is no restriction on purchase and there is no need to worry about the expiration of property rights, but from the perspective of buyers and investors, especially for urban residents, if they do not know the specific housing situation information, it is risky to buy a small property right house only for a short time, so you must keep your eyes open and be cautious before buying a house.

2022-03-25

Viewpoint... On the legal issues of the wrong notification of the implementation of the objection ruling.

1. Introduction In judicial practice, there are situations in which outsiders raise enforcement objections and the enforcement court makes enforcement objections but mistakenly informs the remedies. In this regard, combined with legal provisions and relevant judgment cases, the enforcement objections examine whether the substantive rights and interests claimed by the outsiders are sufficient to exclude the people's court from enforcement. The enforcement objections examine whether the court's enforcement actions conform to the law and whether they infringe the legitimate rights and interests of the objectors. If the enforcement objection ruling wrongly informs the enforcement objection relief channel, in principle, the enforcement objection ruling shall be revoked and remanded for retrial. Review of 2. Action of Objection to Execution and Action of Objection to Execution Objection to (I) the act of execution 1. The subject of the objection to the execution act. The subject of the objection to the execution act may be an outsider or a party to the case. 2. Time limit for raising objections to the execution act If the parties or interested parties believe that the execution violates the provisions of the law, they may submit a written objection to the people's court responsible for the execution. If a party or interested party raises a written objection, the people's court shall examine it within 15 days from the date of receipt of the written objection. The objection to the execution act shall be raised before the conclusion of the execution procedure, and the execution objection ruling may be made in the course of execution and the execution of the preservation and advance execution of the ruling. 3. Circumstances in which an objection to an act of execution is raised The law provides for the circumstances in which an outsider can object to the enforcement act. Specifically, an outsider can object to the enforcement act in the following five circumstances: 1. Those who believe that the enforcement act of the people's court is illegal and prevent them from waiting for seizure, seizure, or freezing to be paid; 2. Those who believe that the auction measures of the people's court are illegal and prevent them from participating in fair bidding; 3. Those who believe that the auction, sale or debt-for-kind measures of the people's court are illegal and infringe on their right of first refusal to purchase the subject matter of execution; 4. Those who believe that the matters requested by the people's court for assistance in execution exceed the scope of their assistance or violate the provisions of the law; 5. Those who believe that other legitimate rights and interests have been infringed by the people's court's illegal execution. From the above provisions, it can be seen that the examination of the objection to the execution behavior is whether the execution behavior of the court conforms to the legal provisions and whether it infringes the legitimate rights and interests of the objector. The specific provisions can be found in Articles 5 and 6. 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts. 4. Remedies for objections to the execution of acts If the parties or interested parties are not satisfied with the ruling on the objection to the execution of the act, they may apply to the people's court at the next higher level for reconsideration within 10 days from the date of service of the ruling. (II) exclusion of execution objections 1. Legal concepts If an outsider raises an objection to the exclusion of enforcement on the basis of the entity's rights, the procedure must be reviewed by the enforcement objection after a formal review of the enforcement objection because it involves a review of the rights and interests of the outsider's entity and the need to weigh whether the protection of the outsider's rights and interests takes precedence over the protection of the rights and interests of the applicant for enforcement. The action of the execution objection examines whether the entity interest of the outsider in the subject matter of the execution is sufficient to exclude enforcement. 2, exclude the implementation of the objection period. The objection to the exclusion of execution shall be raised before the termination of the execution of the subject matter of execution to which the objection is directed; if the subject matter of execution is assigned by the parties, it shall be raised before the termination of the execution proceedings. The objection to the exclusion of execution may be raised at the stage of preservation in addition to the stage of execution. 3, exclude the implementation of the objection to the review period. The enforcement court shall complete the review within 15 days from the date of receipt of the enforcement objection. 4, exclude the implementation of the objection to the ruling of the remedy. An outsider or party to the case may, within 15 days from the date of service of the ruling, file a suit for objection to enforcement in the people's court. The remedy of the 3. error informing the remedy of the ruling of the execution objection. There are three ways to solve the problem of wrongly informing the remedy of the execution objection ruling in judicial practice. (I) relief way one: according to the relief way informed by the execution objection ruling, after entering the procedure, request the court to review and resolve the dispute of the relief way. There is a difference between the exclusion of an enforcement objection and an enforcement action objection, which is based on the exclusion of enforcement against the subject matter of the entity's interest in the subject matter of enforcement. The objection to the execution act is based on the existence of an interest in the subject matter of the execution and the damage to the rights and interests caused by the court's illegal execution act. Specifically, the exclusion of an enforcement objection is a necessary condition for the existence of an enforcement act against the subject matter of enforcement, and if the enforcement court mistakenly informs the outsider or the party in the enforcement objection ruling of the remedy, if the enforcement review procedure should have been initiated to resolve it, it is instead informed of the action to file an enforcement objection. In this regard, Article 105 of the judicial interpretation of China's Civil Procedure Law stipulates clear conditions for outsiders to file enforcement objections. In the stage of enforcement objections, it is necessary to examine whether it conforms to the legal circumstances of filing enforcement objections. In view of this, if you are not satisfied with the remedies set out in the execution objection ruling, you can file an execution objection suit or apply for execution reconsideration in accordance with the remedies set out in the execution objection ruling, and request a review of the compliance with the execution objection suit or whether the execution objection is filed after entering the procedure. In this regard, we can refer to Article 13 of the "Answers to Several Questions Concerning the Trial of Cases of Objection to Execution by the People's Court of Shandong High Court", which stipulates that "How to deal with the lawsuit filed by the parties against the execution act? Answer: If the parties only file an enforcement objection against the enforcement act, and do not request the exclusion of enforcement of the rights and interests of the claimed entity of the subject matter of enforcement, the ruling shall not be accepted; if it has been accepted, the ruling shall reject the prosecution and inform the parties to comply with the provisions of Article 225 of the the People's Republic of China Civil Procedure Law through the enforcement objection reconsideration procedure." Article 13 of the Jiangsu High Court's "Guidelines for the Trial of Cases with Objection to Enforcement" stipulates that "if the people's court is found to have incorrectly informed the remedy in the execution objection ruling during the trial of cases with objection to enforcement, how to deal with it? In the process of hearing the case of objection to execution, the people's court finds that the outsider raises an objection to the execution act, and if the enforcement department informs the outsider and the applicant to file an objection to execution in the execution objection ruling, it shall rule to reject the lawsuit and explain to the outsider and the applicant to resolve the case through the execution reconsideration or execution supervision procedure." (II) remedy 2: The remedy for the notification of the execution objection ruling is not an effective legal decision, so you can directly invoke the law to choose to file an enforcement reconsideration or enforcement objection, or apply for enforcement supervision and request a review of the remedy for the notification of the execution objection ruling. The second way of relief adheres to the view that Article 232 of the Civil Procedure Law is a way of relief granted by law, the execution objection ruling has not taken effect and the way of relief specified in the execution objection ruling does not belong to the judgment item, so the parties or outsiders of the case have the right to file a reconsideration of the execution objection ruling including the way of relief, or to file a claim for execution objection, or to take a way of relief for execution supervision. In this regard, the legal provisions that can be used for reference can be found in Article 72 of the provisions of the Supreme people's Court on several issues concerning the Enforcement of the people's Court (for trial implementation), which stipulates that "if the higher court discovers that the rulings, decisions, notices or specific enforcement acts made by the lower court in the course of enforcement are improper or wrong, it shall promptly instruct the lower court to correct them." Article 234 of the the People's Republic of China Civil Procedure Law stipulates that "in the course of execution, if an outsider raises a written objection to the subject matter of execution, the people's court shall examine it within 15 days from the date of receipt of the written objection, and if the reason is established, it shall rule to suspend the execution of the subject matter; if the reason is not established, it shall rule to reject it. If the outsider or party refuses to accept the ruling and considers the original judgment or ruling to be wrong, it, it, it shall proceed in accordance with the procedure." Article 3, (I), paragraph (IV), of the "Guide to Execution Supervision Cases" stipulates that "if you refuse to accept the execution objection ruling and fail to apply for execution reconsideration or file an execution objection lawsuit within the statutory time limit because it cannot be attributed to the complainant," the people's court may file a case for supervision if it reflects that the execution is illegal and there is no other legal execution relief procedure to file a complaint. The third way of (III) relief: if the dispute involved in the case does not mention the enforcement reconsideration or the enforcement objection, choose to directly file a lawsuit with the people's court with jurisdiction to solve the problem. The point of view of the third remedy is that the enforcement objection and the enforcement review procedure are only whether the rights and interests of the outsider to the subject matter of the execution are sufficient to exclude the enforcement and the legality of the enforcement act. If the claim is tort damages or liability for breach of contract, it can be resolved by another lawsuit. The "Several Opinions of the Supreme Court on the Reasonable Allocation and Scientific Operation of Enforcement Power" has clearly stipulated that "the seizure of the people's court has excluded the right to enforce the subject matter in another case". Therefore, if a tort claim against the enforcement applicant or the preservation applicant is brought on the grounds of tort damages, there will undoubtedly be obstacles to filing a case. If another lawsuit is filed to preserve the respondent or the person subject to execution to bear the liability for breach of contract, in the case of not involving the ownership of the subject matter, a separate lawsuit may be filed, after all, the enforcement objection and enforcement reconsideration do not review the breach of contract by the person subject to execution or the preservation of the respondent. Comparing the advantages and disadvantages of the three remedies, it can be found that the advantage of the first remedy lies in the legal issue of filing an enforcement reconsideration or enforcement objection in accordance with the remedy specified in the enforcement objection ruling, without worrying about the legal issue of the time limit for filing an enforcement reconsideration or enforcement objection. Because the time limit for the application of enforcement reconsideration or enforcement objection is legally exempt, once the wrong remedy is chosen, there may be a risk of litigation that the remedy is exhausted. The disadvantage is that choosing the wrong remedy may face litigation risks such as time-consuming cases, asset transfer to evade debts, and loss of equity remedies. The problem with the second remedy path is the difficulty of filing a case in the case of wrongly informing the remedy path of the execution of the objection ruling, after all, the form of filing a case by the filing court is different from the substantive review of the case. At the same time, it is also faced with the risk of litigation that causes loss of power once the wrong perception of the way to remedy the case. The third way of relief lies in the issue of property ownership of the subject matter of execution, which cannot be resolved by another lawsuit. Remedies under the Guidance of 4. Cases As for the wrong way to inform the remedy of the execution objection ruling, the judicial practice has the solution of way one and way two. If the dispute involved in the case is not resolved according to the correct remedy due to the wrong way to inform the party of the remedy of the execution objection ruling, the solution of revoking the execution objection ruling and sending it back for retrial is adopted in principle. Case 4 is the judgment case of the supreme law, and the judgment point is in the execution objection, if the execution objection ruling is wrongly informed of the remedy (the lawsuit for the execution objection should be informed but the execution reconsideration should be informed), the execution ruling should be revoked. Through the main text of the case, it can be found that the relief route taken in cases 1 and 3 is the first relief route, and the relief route taken in case 2 is the second relief route. In the searched cases, no judgment documents were found to directly correct the wrong remedy procedure in the enforcement objection lawsuit, enforcement reconsideration or enforcement supervision procedure. Such correction is also based on the large difference between the enforcement objection lawsuit, enforcement reconsideration and enforcement supervision procedure. The enforcement reconsideration procedure can be reviewed in writing, the enforcement objection lawsuit adopts the second instance final adjudication system, and the enforcement supervision procedure belongs to the petition relief method. Case 1: Case No. of the People's Court of Woyang County, Anhui Province:(2021) No. 6, 1621 Zhijian The main text of the judgment document: In the case of a private loan dispute between Wang Xiufang, the executor of the court's execution, and Zhang Kun and Deng Hongyan, the executor of the case, Zhang Jiaqi, an outsider, raised a written objection to the seizure of the property in Room 1304, Building 13, Yulongwan under his name, and at the same time considered the seizure procedure illegal on the grounds of not informing the relevant information and relief measures. After accepting the case, the court formed a collegial panel to review it according to law and made (2021) Wan 1621 Zhiyi No. 51 executive ruling on June 8, 2021. The Court found that the ruling was indeed wrong and conducted a review in accordance with the law, which has now been concluded. After examination, it was found that in the case of a dispute over private loans between Wang Xiufang, the executor of the court's execution, Zhang Kun and Deng Hongyan, the executor, Zhang Jiaqi, an outsider, raised a written objection to the seizure of the property in Room 1304, Building 13, Yulongwan under his name, and at the same time considered the seizure procedure illegal on the grounds of not informing the relevant information and relief measures. After examination, the hospital made an executive ruling (2021) Wan 1621 Zhiyi No. 51 on June 8, 2021: rejecting the objection of the objector Zhang Jiaqi. And inform the parties that the remedy is "if the outsider or the party is not satisfied with the ruling and thinks that the original judgment or ruling is wrong, it shall be handled in accordance with the trial supervision procedure; if it has nothing to do with the original judgment or ruling, it may bring a lawsuit to the people's court within 15 days from the date of service of this ruling." Zhang Jiaqi refused to accept, filed a lawsuit against the execution. After hearing, the Court held that the case should be essentially an objection to the execution of the act and should inform the parties of the right of reconsideration. Therefore, a civil ruling (2021) No. 5147 at the beginning of the Republic of Anhui 1621 was made: Zhang Jiaqi's lawsuit was rejected. No appeal was filed within the statutory time limit. This court holds that if the people's court seals up, detains or freezes the property of a third party in violation of the rules of judgment of property ownership, and the third party raises an objection to enforcement, it shall be examined in accordance with the provisions of Article 225 of the Civil procedure Law. In this case, the house involved in the case is registered in the name of the objector, and the objection to the execution of the seizure raised by the objector shall be examined in accordance with the provisions of Article 225 of the Civil procedure Law, and the parties shall be informed of the right of reconsideration in accordance with the law. The execution ruling of our hospital (2021) Wan 1621 Zhiyi No. 51 is indeed wrong and should be revoked. To sum up, the case was discussed and decided by the trial committee of this court, in accordance with Article 154, Paragraph 1 (11) of the the People's Republic of China Civil Procedure Law, the Supreme People's Court's decision on the People's Court's discovery of the pre-litigation preservation ruling made by the People's Court and the ruling made in the enforcement procedure. Errors and the People's Procuratorate's Reply on How the People's Court Should Deal with the Pre-litigation Preservation Rulings made by the People's Court (Fa Shi [1998] No. 17), the ruling is as follows: The 1. revoked the executive ruling of the hospital (2021) Wan 1621 Zhiyi No. 51; 2., this case will be reexamined and dealt with by this court. Case 2, Dalian Jinzhou District People's Court (2021) Liao 0213 Zhi Jian No. 3 Main document of the judgment document: in the case of dispute over the loan contract between the executor Dalian Jinzhou yinhai microfinance co., ltd. and the executor Shi fuzhong, the three complainants applied for objection to the execution of the court. after examination, the court issued (2016) Liao 0213 zhi yi 64 execution ruling on November 8, 2016 and served it to the three complainants. On April 15, 2021, the Trial Committee decided that (2016) Liao 0213 Zhiyi No. 64 enforcement ruling was wrong in applying the law and informing the objector of the legal remedy, and the enforcement supervision procedure should be initiated to correct it. After the case was filed, a collegial panel was formed in accordance with the law to review it, and the review has now been concluded. After examination, on November 16, 2014, the court issued (2014) Jin minchu zi no 2066 civil judgment, which ruled that the defendant (subject to execution) Shi fu was loyal to the plaintiff (subject to execution) within 10 days after the judgment came into effect.

2022-03-25

Administrative Litigation Vision (V) | Administrative Litigation Third Party

Foreword The current administrative procedure law and judicial interpretation provide for the third party system in administrative litigation. The third party in administrative litigation has its unique legal status. In practice, the grasp of the third party is based on the interest relationship with the administrative act or the result of the treatment. The third party in administrative litigation should be determined according to the corresponding standards and conditions. Correctly understanding and grasping the third party system of administrative litigation is of great significance for properly handling administrative litigation cases that require the participation of third parties. 1 The legal characteristics of the third party in administrative litigation. Article 29 of the "the People's Republic of China Administrative Litigation Law" (hereinafter referred to as the "Administrative Litigation Law") stipulates: "Citizens, legal persons or other organizations have an interest in the accused administrative act but have not filed a lawsuit, or have an interest in the outcome of the case., You can apply to participate in the lawsuit as a third party, or the people's court notifies you to participate in the lawsuit. If the people's court judges a third party to assume obligations or impair the rights and interests of a third party, the third party shall have the right to appeal in accordance with the law." Article 30 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Administrative Litigation Law (hereinafter referred to as the "Applicable Interpretation") stipulates: "The same administrative act of an administrative agency involves two or more interested parties, and some of the interested parties are responsible for the administrative act. If a lawsuit is filed if a person is not satisfied, the people's court shall notify other interested parties who have not filed a lawsuit to participate in the lawsuit as a third party. A third party who has an interest in the outcome of the administrative case may apply to participate in the proceedings, or the people's court shall notify him or her to participate in the proceedings. A third party whose people's court has made a judgment that he has assumed obligations or derogated from his rights and interests shall have the right to appeal or apply for a retrial. If the third party stipulated in Article 29 of the Administrative Procedure Law fails to participate in the litigation due to reasons that cannot be attributed to him, but there is evidence to prove that the legally effective judgment, ruling, or mediation agreement harms his legal rights and interests, he may, in accordance with the Administrative Procedure Law According to Article 90, within six months from the date when he knows or should know that his legal rights and interests have been damaged, apply to the people's court at the next higher level." According to the above provisions, the third party in administrative litigation refers to citizens, legal persons or other organizations other than the original or defendant who have an interest in the specific administrative act being sued and apply in their own name to participate in or participate in administrative litigation at the notice of the people's court. The third party in administrative litigation has the following legal characteristics: 1. The third party is a participant in the litigation other than the plaintiff and the defendant, and has an independent legal status. The purpose of participating in the litigation is not to safeguard the rights and interests of the plaintiff, nor to safeguard the rights and interests of the defendant, but to safeguard their own independent legal rights and interests; 2. The participation of a third party in the proceedings must be conducted before the administrative proceedings have been initiated and have not been concluded; 3. The third party's participation in the proceedings is by his own application or by notice of the people's court; 4. The third party's participation in the proceedings is based on an interest in the specific administrative act being sued; 5. The third party has the right to raise claims related to the case, which may be different from the claims of the plaintiff or the defendant, or consistent with the claims of one of the parties, and the third party has the right to appeal or retry against the judgment of the case. 2 Types of Third Party in Administrative Litigation According to the relevant provisions of the Administrative Procedure Law and the Applicable Interpretation, when a citizen, legal person or other organization acts as a third party in administrative litigation, it can be divided into a third party who has an interest in the administrative act made and a third party who has an interest in the outcome of the case. At the same time, in the case of adding the administrative organ as the defendant and making it easy to find out the facts of the case, the administrative organ can also participate in the litigation as a third party. In general, the third people in administrative litigation can be roughly divided into three categories: (I) a third person who has an interest in the administrative act The third person who has an interest in the administrative act refers to the third person who should have filed an administrative lawsuit but did not sue, thus participating in the lawsuit filed by other plaintiffs. The first paragraph of Article 30 of the "Applicable Interpretation" stipulates: "The same administrative act of an administrative agency involves two or more interested parties, and some of the interested parties are dissatisfied with the administrative act and file a lawsuit, the people's court shall notify other interested parties who have not filed a lawsuit. Participate in the litigation as a third party." The third person stipulated in this article is the third person who has an interest in the administrative act. According to this article, a third party who has an interest in an administrative act must meet two elements: first, it has an interest in the administrative act, including the counterparty to the administrative act and other interested parties; and second, the interested party has not brought a lawsuit, thus participating in a lawsuit brought by others. According to the provisions of Article 27 of the "Applicable Interpretation", if the same administrative act involves two or more interested parties, it is necessary to join the litigation, and the court where the parties have not participated in the litigation shall notify them to participate. Article 28 of the Interpretation of Application stipulates: "When a people's court adds a party to a joint action, it shall notify the other parties. The plaintiff who should be added may not be added if he has expressly waived his substantive rights; if he is neither willing to participate in the proceedings nor waives his substantive rights, he shall be added as a third party, and his non-participation in the proceedings shall not hinder the people's court from hearing and adjudication of the case." Accordingly, a third party in a necessary joint action who is neither willing to participate in the proceedings nor waives substantive rights is a third party who has an interest in the administrative act. Therefore, the determination of the substantive elements of the third party who has an interest in the administrative act can be judged by reference to the standard of the plaintiff in the necessary joint action. With regard to the third party who has an interest in the administrative act, Article 6 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Housing Registration Cases stipulates: "After the people's court accepts the administrative case of housing registration, it shall notify the following interested parties who have not filed a lawsuit to participate in the administrative lawsuit as the third party: (1) the right holders specified in the housing register; (II) the right holders of the registered objection, correction and advance notice registration; (III) other interested parties that the people's court can confirm." The above-mentioned third person is the relative of the administrative act of registration made by the housing registration authority and has the qualification of plaintiff. Because no lawsuit has been filed, the people's court should be added as the third person. (II) a third person who has an interest in the outcome of the case The third party who has an interest in the outcome of the case refers to the person who has no interest in the accused administrative act and does not have the qualification of plaintiff, but the outcome of the case will have an impact on his rights and interests, which is similar to the third party who has no independent claim in civil litigation. The second paragraph of Article 30 of the "Applicable Interpretation" stipulates: "A third party who has an interest in the outcome of the administrative case may apply to participate in the proceedings, or the people's court shall notify him to participate in the proceedings. The third party whose rights and interests are judged by the people's court to bear obligations or derogate from their rights and interests shall have the right to appeal or apply for a retrial." Different from the third party who has an interest in the administrative act, the third party who has an interest in the result of the case does not meet the qualification conditions of the plaintiff at the beginning. It is only to protect its legitimate rights and interests, simplify the litigation procedure, avoid the litigation burden, and at the same time, it is included in the scope of the third party in order to save judicial resources. In (2013) Qiongxing Zhongzi No. 169 case, a municipal people's government entrusted an urban construction investment company to carry out the infrastructure construction of a comprehensive development project of an international eco-tourism area, and the two sides signed an agreement. The municipal government issued a land expropriation announcement and signed a land expropriation compensation agreement with the village collective including the village group where villager A is located. Villager A's land is within the scope of expropriation, but Villager A does not cooperate with the inventory confirmation of the young crops. In the case that the municipal government's land department issues a notice to them to clean up the young crops on their own within the time limit and they do not clean up on their own within the time limit, the municipal government will remove the young crops. A brings an administrative lawsuit against the administrative enforcement of the municipal government. At this time, can an urban construction investment company participate in the lawsuit as a third party? First of all, an urban construction investment company is not the counterpart of the government's enforcement action, and the enforcement action does not have any adverse effect on its rights and interests, so it is not a third party with an interest in the administrative action. Secondly, if the court confirms that the enforcement behavior is illegal, because of the particularity of the subject matter of the administrative act in this case, that is, young crops, the court cannot judge to restore the original state, and should judge to compensate for the losses. Unless an urban construction investment company and a municipal government agree that this situation will hinder the implementation of the agreement, otherwise the judgment result of compensation for losses will not affect the municipal government's implementation of the agreement, therefore, in this case, an urban construction investment company does not have an interest in the verdict, and it should not participate in the litigation as a third party. However, if villager A files an administrative lawsuit based on his disobedience to the land expropriation compensation agreement signed between the municipal government and the village collective, although an urban construction investment company has no interest in the administrative act of signing the land compensation agreement, if the court decides that the land expropriation compensation agreement is invalid or not applicable to villager A, then the municipal government has no right to expropriate the land or the land of A, an urban construction investment company will not be able to carry out project development and construction according to its agreement with the municipal government, which will inevitably affect the performance of the agreement between the two parties. In the case of (2017) Supreme Law Xing Shen No. 195, the Supreme Court held that the stipulation that "those who have an interest in the outcome of the case may apply to participate in the proceedings as a third party, or the people's court shall notify them to participate in the proceedings" should clearly include at least: (1) the third party is determined, and all possible rights or interests related to the case cannot be the third party; the (II) interest is determined, and not all possible rights and even interests related to the case are interested. Otherwise, it is not only easy to cause improper trial of other disputes in this case and disturb the normal progress of administrative litigation, but also easy to cause the case to be delayed for a long time and affect the stability of relevant administrative legal relations. (III) administration as a third party The second paragraph of Article 26 of the "Applicable Interpretation" stipulates: "If the defendant should be added and the plaintiff does not agree to the addition, the people's court shall notify him to participate in the litigation as a third party, except where the administrative reconsideration agency is a co-defendant." According to this article, in addition to the law of the reconsideration organ as a co-defendant, the court must add him as a defendant, and other co-defendants who do not agree to the addition shall participate in the proceedings as a third party. In addition, for administrative organs that were not originally defendants in cases, judicial precedents also give them the qualification to act as third parties in litigation. (2016) In the case of Supreme Law Application No. 2907, the Supreme People's Court held that other administrative organs related to the accused administrative act participated in the lawsuit as a third party, which usually belongs to a kind of simple auxiliary participation. Especially in cases involving approval act, pre-act, auxiliary act, administrative contract and exceeding authority, other administrative organs were allowed to participate in the lawsuit as a third party. For finding out the facts of the case and clarifying legal responsibilities, it is more positive. (2017) In the case of Supreme Law Xing Shen No. 2289, the Supreme Court held that although Article 26, paragraph 5, of the Administrative Procedure Law stipulates that "the entrusted administrative organ is the defendant for administrative acts committed by organizations entrusted by administrative organs", the people's court may allow organizations entrusted by administrative organs to participate in the proceedings as co-defendants or third parties if it is more convenient to find out the facts of the case. In the case of (2018) Supreme Law Xing Shen No. 5313, the Supreme People's Court held that the Liangwu villagers' group should take Qingyuan Municipal Government as the defendant if it refuses to accept the above reconsideration decision and file a lawsuit in the people's court. If Yangshan County Government can participate in the lawsuit as a third party, it will be more conducive to finding out the facts of the case. However, the failure of Yangshan County Government to participate in the lawsuit in the lawsuit does not violate the law. 1. the law. In the above cases, the administrative agency is not the defendant in the administrative litigation, but its participation in the litigation is conducive to finding out the facts of the case and will not adversely affect the parties, so the Supreme Court recognizes that it can participate in the litigation as a third party. 3 The Litigation Rights of the Third Party in Administrative Litigation (I) participation in proceedings According to the provisions of Article 30 of the applicable interpretation, the people's court shall notify the third party who has an interest in the administrative act to participate in the proceedings. A third party who has an interest in the outcome of the case may apply to participate in the proceedings, or the people's court shall notify him or her to participate in the proceedings. If the people's court should notify but does not notify, or should agree but does not agree, resulting in a third party's failure to participate in the proceedings, it belongs to the party who omitted the necessary participation in the proceedings. According to Article 109 of the "Applicable Interpretation": "If the original judgment omits the parties or litigation requests who must participate in the litigation, the people's court of second instance shall rule to revoke the original judgment and send it back for retrial." In the case of (2020) No. 5 of the Supreme Law Bank Compensation, the Supreme Court held that: Dongfang Municipal Government had previously identified Dao Xi Forest Farm, Huangning Village and Bashuo Village as the right holders of the expropriated land, and the 31 group of Xiaoling Village claimed that part of the expropriated land belonged to it, which would inevitably conflict with the ownership of the expropriated land by at least one of the above three villages, it is bound to infringe on the interests of at least one of the expropriated subjects. 1. the court of second instance does not notify the above three subjects to participate in the litigation, it directly confirms the relevant land ownership dispute, which may infringe on the legitimate rights and interests of outsiders. Therefore, the 1. of the second instance judgment belongs to the omission of the parties who must participate in the proceedings. In this case, the court should notify a third party to participate in the proceedings without notice. (II) the third person's right of appeal The second paragraph of Article 29 of the "Administrative Litigation Law" stipulates: "If the people's court decides that a third party assumes obligations or impairs the rights and interests of a third party, the third party has the right to appeal in accordance with the law." Similar to the provisions of the Civil procedure Law, "the third party who bears civil liability in the judgment of the people's court has the litigation rights and obligations of the parties", the law gives the third party the conditional right of appeal, and only when the judgment has an adverse effect on it, the third party has the right to appeal. Because the third party is not a litigant in the narrow sense after all, and the original defendant in a different litigation status, should have different litigation rights. One of the purposes of the establishment of the third party system is to reduce litigation and save judicial resources. If the third party's litigation rights are not restricted, the case may be delayed for a long time, contrary to the purpose of the establishment of the third party system. Of course, based on the purpose of the third-party system to safeguard the rights of interested parties, if the judgment is detrimental to the rights and interests of third parties, they should be given the right to appeal. (III) the right of retrial of the third person The third paragraph of Article 30 of the "Interpretation of Application" stipulates: "If a third party stipulated in Article 29 of the Administrative Procedure Law fails to participate in the litigation due to reasons that cannot be attributed to him, but there is evidence to prove that a legally effective judgment, ruling or mediation agreement harms his legal rights and interests, he may, in accordance with the provisions of Article 90 of the Administrative Procedure Law, know or should know that his legal rights and interests have been harmed, apply to the people's court at the next higher level for a retrial." In this regard, the Supreme Court in (2018) the Supreme Law.

2022-03-25

Viewpoint | Determination of "Trajectory" in the Crime of Infringing Citizens' Personal Information

1. Criminal Law and Related Judicial Interpretations on the Crime of Infringing Citizens' Personal Information and "Trajectory" Provisions and Legislative Intent 1. Article 253 of the the People's Republic of China Criminal Law stipulates that anyone who, in violation of relevant state regulations, sells or provides citizens' personal information to others, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or separately be fined; if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined. Whoever, in violation of the relevant provisions of the State, sells or provides to others the personal information of citizens obtained in the course of performing their duties or providing services shall be given a heavier punishment in accordance with the provisions of the preceding paragraph. Whoever steals or unlawfully obtains the personal information of citizens by other means shall be punished in accordance with the provisions of the first paragraph. Where a unit commits the crimes mentioned in the preceding three paragraphs, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished in accordance with the provisions of those paragraphs. 2. Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringing Citizens' Personal Information stipulates that "citizens' personal information" refers to all kinds of information recorded electronically or in combination with other information that can identify the identity of a specific natural person or reflect the activities of a specific natural person, including name, ID number, communication contact information, address, account password, property status, whereabouts, etc. Article 5, paragraph 1, item (III), stipulates that those who illegally obtain, sell or provide more than 50 articles of whereabouts information, communication content, credit information and property information shall be deemed as "serious circumstances" as stipulated in Article 253 of the Criminal Law; the second paragraph stipulates that the acts specified in the preceding paragraph shall be carried out, if the quantity or amount reaches more than ten times the standards specified in subparagraphs 3 to 8 of the preceding paragraph, it shall be deemed as "the circumstances are particularly serious" as stipulated in the first paragraph of Article 253-1 of the Criminal Law ". 3. The track of whereabouts belongs to highly sensitive information. The crime of infringing on citizens' personal information sets the threshold of "track of whereabouts" lower than the conviction threshold of ordinary citizens' personal information. This article stipulates that the determination standard of "track of whereabouts" has a great impact on the conviction and sentencing of such cases. The purpose of setting a separate conviction standard for the track of whereabouts is to strengthen the protection of citizens' personal and property safety, only when the complete travel route of the victim is known can it pose a major threat to his person and property, and only knowing the real-time point can not reach the degree of harm of obtaining the "track. According to a single point, it is impossible to reflect the final location of the victim. Only by gathering the points on a route can we get complete information about the place and destination of the victim. Obtaining complete travel information may cause damage to the victim's personal and property, and obtaining a single point cannot reach the corresponding degree of harm. If only the number of points is directly used as the number of tracks for conviction and sentencing, it violates the principle of criminal responsibility, and violates the original intention of the legislation and judicial interpretation of this crime. The 2. "trajectory" should refer to a "line" dynamic trajectory consisting of a start point and an end point rather than a static "point", which is in line with the general public's perception. When laws, regulations and judicial interpretations do not explain the meaning of "whereabouts", stricter standards should be adopted compared with general personal information on the issue of what is "whereabouts" and how to determine "numbers. According to the principle of modesty and restraint of criminal law, comprehensive consideration should be made from the literary interpretation of "whereabouts" and the general understanding of the public in daily life practice. "Trajectory" refers to the traces left by the action, and "trajectory" refers to the total path through which a point moves in space. According to the text, a "track" should refer to a complete action path formed by a point moving from the starting point to the end point in space. "Trajectory" should refer to a linear dynamic trajectory with a start point and an end point, rather than a static real-time point of the victim. It is generally believed in 3. criminal law circles that "line" rather than "point" should be used as the standard for identifying "track". 1. Professor Zhang Mingkai's Criminal Law (Law Publishing House, 2021, p. 1202) believes that the trajectory information should have certain time and space characteristics, especially the starting point and the ending point, which should last for a period of time from the starting point to the ending point. However, even if the actor acquires the static real-time point, due to the extremely short time and the lag of the return information, it is too late to commit acts that infringe personal legal interests such as injury. 2. Professor Gao Fuping's article "Obtaining Tracing Trajectory and" Sentencing "published in Shanghai Legal Daily in 2017 pointed out that" Tracing Trajectory is the trajectory formed by people moving at different points in time and in different geographical locations. ". 3. Professor Wang Wenhua pointed out in his article "Criminal Law Protection of Citizens' Personal Information in the Internet Age" published in "People's Procuratorate" in 2017 that "personal information includes not only" identity information "but also" activity information "such as whereabouts, such as personal whereabouts information of citizens obtained after mobile phone positioning. The former is static information and the latter is dynamic information." According to the theoretical explanation, the "trace trajectory" should have the characteristics of continuity, dynamics and integrity, and the linear trajectory is more in line with the characteristics and connotation of the "trace trajectory" than the point positioning. The meaning of "trajectory" in other 4. departmental regulations and government working documents is linear dynamic trajectory. China's relevant laws and regulations related to the protection of personal information, government documents related to the new crown epidemic prevention, there are similar expressions of "whereabouts", which represents the general understanding of "whereabouts" by government agencies and the public, and can be used as a reference for the standard of "whereabouts" in the crime of infringing upon citizens' personal information. 1. According to the third paragraph of Article 26 of the Interim Measures for the Administration of Online Taxi Reservation Service, except for cooperating with state agencies to exercise supervision and inspection rights or criminal investigation rights in accordance with the law, the online car-hailing platform company shall not provide any third party with drivers. Personal information such as the names of drivers, drivers and passengers... travel routes. Among them, the dynamic "travel route" as a whole is identified as the personal information of the passenger. 2, during the new crown epidemic prevention and control in many places epidemic prevention and control headquarters, CDC issued the "trace trajectory investigation letter", which has a complete starting point, the end of the linear trajectory as the "trace trajectory" identification criteria. Among them, the "whereabouts track" is the information that can completely reflect the starting point, end point and important place of the party's journey, rather than the real-time point information of the individual. 5. jurisprudence has explicitly interpreted the "trajectory" as a "linear dynamic trajectory". 1. The criminal judgment (2020) No. 39 at the beginning of the punishment of Anhui 1182 issued by the people's Court of mingguang city, Anhui Province shows that in this case, the public prosecution organ accused the defendant of obtaining a total of 2356 pieces of information on the whereabouts of the victim, of which 2041 pieces of information are the repeated position information of the victim in a static state. In the judgment, the court deducted the above-mentioned information in the static state, and finally found that the defendant obtained the whereabouts and trajectory information of the victim as 323. 2. The (2019) Beijing 02 Criminal Final No. 59 Criminal Judgment issued by the Beijing Second Intermediate People's Court stated that the defendant in this case used his work to sell the citizen Didi Chuxing records obtained in the process of providing services for profit. Among them, "Didi Chuxing" record is a round-trip record of taking transportation. The court of first instance identified the "drop travel" record as "track information", and the court of second instance upheld the original judgment. 6. epilogue Based on the above analysis, we believe that the crime of infringing on citizens' personal information about "obtaining the number of tracks of others" should follow the general understanding of "tracks of tracks" and should not be based on static real-time points, but should be based on the number of linear dynamic tracks for conviction and sentencing.

2022-03-21

Examples of retrial | Can the parties apply for retrial and file a protest against the retrial judgment?

Brief description of the case In the case of a private lending dispute between Zhang and Zhao, Zhang lent ten million yuan to Zhao in 2012 without agreeing on interest. During the loan period, both parties paid interest at 20% of the annual interest rate. During the period, the two parties had other economic exchanges. In 2018, the two parties re-issued a debit note, recording that Zhang lent RMB 10 million to Zhao, with no agreed interest, and in actual performance, Zhao repaid a fixed amount of RMB to Zhang every month (for which the two parties are in dispute over whether the principal or interest of the repayment). After the dispute between the two sides, in 2020 Zhang as a creditor to the people's court to claim the remaining loan principal and interest. Zhao filed a counterclaim, requesting a judgment on Zhang's return of the over-paid loan and interest. After the case was heard by the 1. court of second instance, the court of second instance upheld the judgment of first instance and ordered the debtor Zhao to pay the remaining principal and interest of the loan. Zhao believes that the second trial judgment is wrong and applies to the court for a retrial. After accepting Zhao's application for retrial, the people's court rejected his application for retrial. Zhao still refused to accept the judgment of the second instance and applied to the people's Procuratorate for procuratorial supervision. The people's Procuratorate filed a protest with the court. After the retrial of the trial supervision procedure, the people's court revoked the judgment of the second instance and changed the judgment that Zhang returned the principal and interest of the overpaid loan to Zhao. Creditor Zhang is not satisfied with the retrial judgment. At this time, can Zhang apply to the court for retrial or protest to the people's procuratorate? Is there any other remedy? 1. in this case, Zhang cannot apply to the court for a retrial, nor can he apply to the procuratorate for a protest After the judgment of the second instance of the (I) comes into effect, the appellant, the appellee and other parties to the case have the right to apply for a retrial in accordance with the law for the judgment and ruling of the second instance that has taken effect. Both parties may have the right to apply for a retrial within the statutory time limit. If both parties apply for a retrial, the retrial court shall examine the case together and make a judgment. When one party applies for a retrial within the statutory period and the other party fails to apply for a retrial within the statutory period, its right to apply for a retrial has been extinguished due to the expiration of the statute of limitations. After the termination of the trial supervision procedure caused by one party's application for retrial, the procedural rights of all parties to apply for retrial against the legally effective second-instance judgment and ruling have been eliminated, and the other party will not reserve the right to apply for retrial to the retrial court for another time because the other party has not exercised the right to apply for retrial within the statutory period. Therefore, once the retrial judgment is made, neither party has the right to apply for retrial. Article 383 of the Interpretation of the Supreme People's Court of the (II) on the Application of the the People's Republic of China Civil Procedure Law (2020 Amendment) stipulates that "If a party applies for retrial under any of the following circumstances, the people's court shall not accept it: 1. The application is filed again after the application for retrial has been rejected; 2. An application for a retrial judgment or ruling; 3. The application is filed after the People's Procuratorate has made a decision not to submit a retrial procuratorial proposal or protest against the application of the party. Under the circumstances specified in items 1 and 2 of the preceding paragraph, the people's court shall inform the parties concerned that they may apply to the people's procuratorate for retrial procuratorial suggestions or protests, except for judgments and rulings made in retrial due to the people's procuratorate's retrial procuratorial suggestions or protests." The above provisions are the legal basis for the retrial judgment not to apply for retrial, nor to apply to the procuratorate to protest. Combined with this case, because Zhao was not satisfied with the judgment of the second instance, he applied to the court for retrial. After the people's court rejected his application for retrial, he applied to the people's Procuratorate for protest. The protest organ believes that there is an error in the judgment of the second instance, and after submitting a protest to the people's court, the people's court initiates the trial supervision procedure and changes the judgment. The respondent Zhang believes that the facts of the court of second instance are clear and the legal evidence is applicable. Zhang is not satisfied with the retrial judgment and cannot apply for retrial or apply to the procuratorate for protest. 2. on the way to initiate retrial proceedings ex officio The retrial procedure is an important way for the people's court to correct errors. The retrial procedure can be initiated on application, by the procuratorate, or ex officio. The method of initiation is different, and the trial supervision procedures applied are also different. Article 205 of the the People's Republic of China Civil Procedure Law (amended in 2021) stipulates that "if the presidents of the people's courts at all levels find that there are definite errors in the judgments, rulings or conciliation statements that have taken legal effect in their courts and believe that a retrial is necessary, they shall submit them to the adjudication committee for discussion and decision. If the Supreme People's Court finds that there is a definite error in a legally effective judgment, ruling or mediation statement of a local people's court at all levels, or a people's court at a higher level finds that there is a definite error in a legally effective judgment, ruling or mediation statement of a people's court at a lower level, it shall have the right to bring it up for trial or instruct a people's court at a lower level to retry". The provisions of this article are that the court initiates the retrial procedure according to its functions and powers. If the president of the court discovers a legally effective judgment, ruling or mediation statement and finds that there is a definite error, the president shall submit it to the members of the judicial committee for discussion and decision; if the people's court at a higher level finds that there is a definite error in a legally effective judgment, ruling or mediation statement of the people's court at a lower level, it shall have the right to bring the right to trial or instruct the people's court to retrial. Specifically in this case, the creditor Zhang is not satisfied with the retrial judgment made through the procuratorate's protest, and may not apply for retrial, nor may he apply for the procuratorate's protest. If the retrial judgment is indeed wrong, the president finds that the retrial procedure is initiated. In practice, the president finds that the retrial procedure is started. First, the parties concerned should submit the application form and relevant evidence. After the president of the court finds that there may be errors in the original effective judgment, he submits it to the trial committee for discussion. The trial committee decides that the retrial of the case is based on the trial supervision procedure, it is not an inevitable procedure, let alone a way to initiate a retrial based on the subjective judgment of the parties. Finally, if the parties are not satisfied with the effective judgment and want to start the trial supervision procedure through the president, how to submit the materials and in which way to receive the materials are not completely unified by the local courts.

2022-03-21

Point of View... Practical identification difficulties when committing rape.

Rape cases, which can be said to be the simplest and most complex type of cases, have always attracted public attention more easily than other cases. Say it is simple, because you know a little about wind and moon; Say it is complicated, because you don't understand other people's wind and moon. In such cases, in addition to the typical situation of obvious violence, coercion or other methods against women, in many cases, how to determine whether sexual behavior is against the will of women or violates women's sexual autonomy is one of the most difficult proof problems in judicial practice. The crime of rape in our country is defined as: violence, coercion or other means, against the will of women, forced to have sexual intercourse with them. The most important point of knowledge in this definition is against the will of women. What is meant by going against a woman's will? Obviously, it's not easy to define. This is not only because women's will belongs to the content of people's inner world, belongs to the connotation of facts rather than external facts, it is difficult to prove by direct proof, generally only through objective evidence to infer the way to reflect. What is more complicated is that most of these crimes occur in private space, often with only the two parties involved and no third person, so it is difficult to obtain evidence. Moreover, due to the complexity, diversity and variability of human behavior, sometimes the external obedience or resistance is difficult to reflect the true psychological thoughts and subjective will of the parties. In this case, it is difficult to convince one party to be guilty by the confession of one party alone. What's more, violating the will does not mean disagreement, and the scene of violating the will is also more common in life. For example, students are unwilling to do their homework, but they choose to write under the pressure of teachers and parents. This is actually against the will; businessmen are unwilling to pay taxes, and eventually pay, which is also against the will. Therefore, to determine whether a person constitutes rape, in the absence of conclusive evidence to prove it, it is impossible to form a fair judgment only by violating the will. In most cases, the situation of Rashomon will occur. So, under what circumstances can rape be identified? It is generally believed that as long as there is evidence to prove that women do not know, can not or dare not resist, it can be identified as against the will of women, but in practice is not simple. The author believes that the following two aspects should be paid attention: First, the point in time to determine the violation of a woman's will should not be before or after the occurrence of sexual behavior, but should be when and during the occurrence of sexual behavior. Because sexual behavior is a continuous process, sexual autonomy belongs to personal rights rather than property rights, which is special. Consent before or at the beginning of sexual activity cannot be considered as a woman's approval of subsequent behavior. Because women have the right to claim sexual autonomy at any time, whether before or during the course of sexual behavior, once the woman is unwilling to continue the relationship, and the perpetrator chooses to continue against the will, it can be deemed to be against the will of the woman. Second, the criterion for violating women's will should not be whether women are willing, but whether women act or choose to make under the premise of free will. Against the will and against the will are two concepts. A woman's consent to have a relationship with the perpetrator may be against her will, not under the circumstances of her willingness, but as long as the sexual relationship with the perpetrator is a choice made under the circumstances of the freedom of the woman's will, it should be considered as not violating the will of the woman, otherwise, it should be considered as against the will of the woman. The real difficulty in practice lies in this. Not only because this is a connotative fact, under normal circumstances, the two sides will hold their own words, and the version of the story is completely opposite, but under what circumstances can it be determined that it is against the will of women, whether it is their voluntary choice or forced to do it? in fact, there is a lack of objective and unified judgment standards, and the different understandings between different judgment subjects will also cause great controversy. What should we rely on to judge? The author thinks that we should judge according to the objective evidence left before, at and after the crime, and rely on the proof method of inference. 1. Before the crime The review of almost every rape case starts from this part. At this stage, we should focus on the cognitive process of both parties before the crime, the length of time and the familiarity of both parties to judge women's cognitive ability of sexual relations. Whether the two parties have emotional foundation? Whether they can have sexual relations naturally? It is the key problem to be solved at this stage. "Logic is more credible than words", and some objective details may become the winner or loser of the case. 2. At the time of the crime The location selected at the time of the crime, the means taken by the perpetrator in the process, the situation of conversation, the way and frequency of sexual relations, the injury of women, the situation of calling for help and so on are important factors to judge the resistance ability of women in the process of sexual relations. All behaviors can be traced, and the performance of women in the process of the crime can best reflect the subjective mentality. The on-site investigation and the collection of material evidence at this stage are the top priorities in the case review. 3. After the crime After the incident, women's emotions, treatment methods, whether to call the police, through whom to call the police, the reaction time of the police, physical examination, etc., are the focus of judging women's psychology. Especially when the sexual relationship is known by a third person (husband, boyfriend), when judging the logic of women's statement, we should fully consider the factors that the psychological state of women who report to the police afterwards may be interfered and influenced by others. The above judgment method has its advantages, but it also has its defects. The reason why there is no unique standard to confirm the composition of rape is that human nature is too complex, especially human life. How should such cases be handled? The author believes that when handling such cases, especially judging whether the sexual relationship is a choice made by a woman under the free will of a woman, neither can it be judged completely from the standpoint of a woman, nor can it be replaced by the choice made by an ordinary person in this situation. The judgment of the will at that time should be comprehensively determined based on the evidence in the case, based on the overall process of the case, combined with the cognitive ability, resistance ability, past experience and other individual factors of the victimized women, judge whether the behavior of the perpetrator is enough to affect the freedom of will of the victimized women under the specific situation, so that they can make involuntary choices to have a relationship with the perpetrator under the situation of ignorance, inability and dare not resist. At the same time, refer to how ordinary people choose in similar situations to test and judge whether it conforms to the general rules of experience and common sense, this is to meet the standard of clear facts and sufficient evidence.

2022-03-18

Viewpoint... Analysis of the legal issues of factoring contract disputes after the implementation of the Civil Code.

Introduction With the gradual scale of factoring business, disputes involving factoring contracts have gradually emerged. Since the dispute of factoring contract is a relatively new type of dispute, generally involving two contracts and three parties between the factoring agent and the creditor of accounts receivable under the factoring contract, and between the creditor of accounts receivable and the debtor under the basic contract, there is a gradual cognitive maturity process for the handling of the dispute involving factoring contract from the cause of action, jurisdiction, subject to the handling of the rights and obligations of the entity, its positioning has gone through from a loan contract dispute or an unnamed contract dispute to a consensus positioning of an unnamed contract dispute. After the Civil Code came into force, factoring contracts were regulated as a typical class of well-known contracts, providing a direct source of law for judicial decisions. This paper only discusses the legal issues related to the rights of recourse factors. The object and scope of the rights claimed by the 1. recourse agent. Article 766 of the Civil Code: Where the parties agree to have recourse factoring, the factoring agent may claim the return of principal and interest on factoring financing or the repurchase of the accounts receivable claim from the accounts receivable creditor, or claim the accounts receivable claim from the accounts receivable debtor. If the factoring agent claims an accounts receivable claim from the accounts receivable debtor, and if there is a surplus after deducting the principal and interest of the factoring financing and related expenses, the surplus shall be returned to the accounts receivable creditor. It can therefore be concluded that the agent may claim: 1, the agent to the creditors of accounts receivable to claim the right to repurchase accounts receivable, that is, to require creditors to "claim the right to the debtor's accounts receivable" to buy back; 2. The factoring agent separately claims recourse to the accounts receivable creditor for the principal and interest of the factoring financing, I .e., the creditor is required to continue to perform the obligation of settlement against the balance of the principal and interest of the factoring financing that the creditor fails to obtain settlement from the debtor; 3. The factor separately claims to the debtor of the accounts receivable within the scope of the accounts receivable that has been transferred but not paid, that is, the right to require the debtor to pay the accounts receivable in full and on time in accordance with the agreement of the underlying transaction contract. Can the 2. factor's recourse to the creditor and the debtor's claim coexist? In the course of the performance of a recourse factoring contract, the factoring agent, in order to maximize the recovery of the claim, often chooses to take the creditor and debtor of the accounts receivable as the defendant and file a lawsuit in the people's court together. With regard to the manner and order in which both creditors and debtors are liable when they are sued at the same time, both referees have expressed two views: first, the debtor of accounts receivable bears the first-in-the-line payment responsibility. A supplementary relationship is established between the factor's claim for payment to the debtor and the recourse to the creditor, and the creditor assumes supplementary liability to the extent that the debtor cannot be paid. Second, the factor does not extinguish the claim for payment of accounts receivable by claiming recourse. [Guiding Case] (2018) Supreme Famin Re -192 The gist of the decision: If the factor has not been paid off at the expiration of the agreed repayment period, the factor has the right not only to request the debtor of the underlying contract to pay off its debts, but also to recover from the creditors of the underlying contract, and the debtor of the accounts receivable bears the first-in-line repayment responsibility, and the creditor bears the corresponding supplementary liability. The court held that: in this case, the Bank of China New District Branch is at the same time to the Golden Eagle Company to claim recourse, but also to Tianhui Company, Huale Company to claim accounts receivable claims. Although the Bank of China New District Branch claimed to multiple debtors at the same time based on different legal relationships, they were all within the scope of the factoring legal relationship with only one purpose, namely, to recover the factoring financing funds provided to Golden Eagle. Therefore, the case should be consolidated and the order and scope of liability of each debtor should be determined on the basis of the legal relationship between the parties. The court of second instance rejected BOC New District Sub-branch's lawsuit against Tianhui Company and Huale Company and Huale Company's counterclaim against BOC New District Sub-branch on the grounds that the loan guarantee contract dispute and the creditor's rights transfer dispute were not based on the same legal fact and the same legal relationship and could not be tried together under the circumstance that the handling did not conform to the characteristics of factoring legal relationship and separated the internal connection between various legal relationships, this increases the litigation burden of the parties and is not conducive to the integrated settlement of disputes, which is corrected by this court. With regard to the order and scope of responsibility of each debtor, since Tianhui Company and Huale Company are the payers of the accounts receivable, they shall first assume responsibility for the payment of the transferred portion of the accounts receivable to the Bank of China New District Branch; if the relevant amount cannot be paid off, Golden Eagle Company shall continue to assume supplementary liability to the Bank of China New District Branch. Can the 3. factoring's claim to the creditor and the claim to the debtor coexist? There is a dispute in practice at present. Viewpoint 1: If a factoring agent sues a creditor in a separate case to claim a repurchase claim, the factoring agent's claim to the accounts receivable creditor for a repurchase right cannot coexist with the claim to the accounts receivable debtor. [Guiding Case] (2017) Supreme Fa Min Shen No. 132 The gist of the decision: Because the factor has required the creditor to assume the repurchase liability through the proceedings, the corresponding debtor's accounts receivable is transferred to the creditor, the creditor obtains the part of the claim, the debtor and the factor corresponding to the repayment obligation should be waived, the factor has no right to claim the accounts receivable from the debtor. The court held that, according to the Agreement on Factoring and the Application for Factoring Financing, the case was buyout factoring, and Pudong Development Bank was granted the accounts receivable claims of Bay Day against Zhonglian, and Pudong Development Bank became a creditor of Zhonglian. Thereafter, Wantian issued a Letter of Commitment to Pudong Development Bank, promising that if Zoomin fails to fulfill its payment obligations in full within the maturity date of the financing, Wantian will assume repurchase responsibility for the accounts receivable transferred to Pudong Development Bank under the Factoring Agreement, and the subject of its repurchase is still the claim on the accounts receivable. Therefore, whether Pudong Development Bank requests debt settlement from Zhonglian Company or repurchase from Wantian Company, it is based on the same accounts receivable claim. In the absence of a separate agreement between the parties, Pudong Development Bank can only choose one claim. According to the ascertained facts, Pudong Development Bank has requested Wantian Company to bear the repurchase responsibility for the accounts receivable creditor's rights in another case, and the effective judgment of the other case has already supported its claim. Under such circumstances, Pudong Development Bank no longer enjoys the accounts receivable creditor's rights against Zhonglian Company, so Pudong Development Bank has sued Zhonglian Company for the lack of claim basis for the debts in this case. Viewpoint 2: Whether the factor can claim a repurchase right from the accounts receivable creditor and a claim from the accounts receivable debtor can coexist depends on whether the action brought by the factor in a separate case should be found to have exercised the right to terminate the contract of assignment of claims. [Guiding Case] (2017) Supreme Famin Re -164 Referee gist: If the factor advocates the creditor of the underlying transaction to repurchase the accounts receivable, it is essentially advocating the termination of the factoring contract. After the termination of the factoring contract, the factoring ceases to have the status of a creditor of the receivables and it no longer has the right to claim payment of the receivables from the debtor of the underlying transaction, I .e., the factoring's repurchase claim against the creditor cannot coexist with its claim against the debtor. If the factor claims to the creditor in a separate case that it is not a repurchase of the receivables, but a return of the factoring financing, the factor will still have the right to claim payment of the receivables from the debtor until the principal and interest of the factoring financing are fully paid. However, in the case of the factor claiming rights to both the creditor and the debtor, the satisfaction or partial satisfaction of the debt by either party of the creditor and the debtor shall be relieved of the other party's obligation to pay off accordingly, so as to avoid the factor's double payment of the same claim. The court held: the question of whether Zhuhai China Resources Bank's right to anti-assignment of accounts receivable against Guangzhou Dayou Company could coexist with its claim against Jiangxi Fuel Company. The legal effect of the agent's anti-assignment of claims to the creditor's rights shall be recognized in accordance with the law as the termination of the contract of assignment of claims and the return of claims to the transferor, so the anti-assignment of accounts receivable shall be adjusted by the relevant provisions of the General Provisions of the the People's Republic of China Contract Law on contract termination. The agreement in the Domestic Factoring Contract that after Guangzhou Dayou Company returns the factoring financing funds and related outstanding expenses, all rights related to the accounts receivable shall also be transferred back at the same time, and Zhuhai China Resources Bank has the right to notify Guangzhou Dayou Company of the anti-transfer of creditor's rights in the case of Jiangxi Fuel Company's failure to perform its repayment obligations shall be interpreted as the agreed termination conditions of the creditor's rights transfer contract involved in the case. Therefore, in the case of the fulfillment of the termination conditions agreed in the contract, if Zhuhai China Resources Bank counter-transfers the creditor's rights to Guangzhou Dayou Company, it no longer has the creditor status of Jiangxi Fuel Company after the termination of the creditor's rights transfer contract, and its right basis for asking Jiangxi Fuel Company to pay off the debts no longer exists, therefore, Zhuhai China Resources' right of anti-transfer to Guangzhou Dayou Company and its claim to Jiangxi Fuel Company cannot coexist in legal nature. Accordingly, whether Zhuhai China Resources Bank's claim to pay off the debts of Jiangxi Fuel Company in this case can be supported depends on whether its separate lawsuit should be deemed to have exercised the right to terminate the contract of assignment of claims and return the claims to Guangzhou Dayou Company. In this case, the court held that in the process of claiming the rights of Zhuhai China Resources Bank, there was no written document to prove that it had expressed the intention of anti-transfer of claims to Guangzhou Dayou Company. Moreover, judging from the actual situation of the series of litigation actions carried out by Zhuhai China Resources Bank, its real meaning is to insist that Jiangxi Fuel Company and Guangzhou Dayou Company bear the debts at the same time. The core demand is to require Guangzhou Dayou Company and Jiangxi Fuel Company to jointly repay the loans owed, which has never included the intention of returning the creditor's rights to Guangzhou Dayou Company. Therefore, the Court found that the rights claimed by Zhuhai China Resources Bank in a separate lawsuit were in nature a right of recourse to require Guangzhou Dayou Company to repay the loan, not a counter-assignment of the claim. Jiangxi Fuel Company's lawsuit that Zhuhai China Resources Bank has transferred the accounts receivable involved in the case to Guangzhou Dayou Company has no corresponding factual basis, and this court will not accept it. The original judgment did not conform to the actual situation of the case that Zhuhai China Resources Bank had actually exercised the right of action against Guangzhou Dayou Company and that it no longer enjoyed the accounts receivable claim against Jiangxi Fuel Company. If Zhuhai China Resources Bank's real intention was to terminate the creditor's rights transfer contract, it would no longer insist on filing a lawsuit in this case claiming that it no longer had the right, and the court corrected the determination. Conclusion The last two cases are basically the same. The key lies in whether the factor has exercised the repurchase right. If it sues the creditor alone, the trial practice will tend to think that it has exercised the repurchase right and no longer enjoys the claim against the debtor. If the factor sues both the creditor and the debtor, the judge generally tends to think that the factor is exercising its claim against the debtor and its recourse against the creditor. In the event that the debtor fails to pay the principal and interest on the accounts receivable in full and on time, it is more advantageous for the factor to claim recourse to the creditor for the factoring financing rather than a repurchase claim.

2022-03-16

Viewpoints. The impact and guidance of the Civil Code on the consumer protection system.

《民法典》出台前，我国已形成以《消费者权益保护法》为核心的消费者权益保护制度，其中：1993年10月31日颁布的《消费者权益保护法》通常被称为“综合性消费者保护法”，集中地反映了消费者与经营者之间的权利义务关系，规定了消费者的九项基本权利（包括消费者的安全权、知情权、选择权、公平交易权、依法求偿权、结社权、受教育权、受尊重权和监督权）；《产品质量法》、《食品卫生法》、《食品安全法》、《广告法》、《反不正当竞争法》、《反垄断法》等通常被称为“单项消费者保护法”，对消费者的各项基本权利和经营者的各项基本义务进行了细化和延伸。   基于前民法典时代消费者权益保护的立法传统，考虑到消费者保护兼具公法性与私法性，为了民法体系化的需要，借鉴域外立法例，我国《民法典》最终没有将《消费者权益保护法》整体纳入法典，而是通过总则编、合同编、物权编、侵权编等规定了消费者保护的相关内容，并采用了“一般规定 + 特殊授权”的立法模式。《民法典》第一百二十八条规定：“法律对未成年人、老年人、残疾人、妇女、消费者等的民事权利保护有特别规定的，依照其规定”，从制度上确立了消费者保护法以私法为基本属性，进一步明确了《民法典》与消费者保护法的基本法与特别法的关系，即《民法典》对消费者权进行一般保护，由单行法对消费者权进行特别保护。标志着我国消费者权益保护制度的进一步完善，消费者权益保护力度的进一步升级。   《民法典》作为消费者权益保护制度的基本法，为消费者权益保护提供切实保障的同时，也对消费者权益保护制度起到深远影响和指引作用。首先，在法律原则上，纵观诸多消费者权益保护制度，无不体现着“诚信原则”这一民法基本原则的身影，要求经营者秉持诚实、恪守承诺、守法经营，这是维护社会和经济秩序，弘扬社会主义核心价值观的必然要求。在具体规则上，又通过“基本法——特别法——配套规定”的制度模式，细化和完善着对消费者权益保护，举例说明如下：     其一，《民法典》将“惩罚性赔偿”明确纳入民事责任，进而强化了惩罚性赔偿制度在消费者权益保护制度中的地位，为相关规定引入该制度提供立法指引，并提出了“惩罚性赔偿制度”体系化的要求。   我国民事法律体系中，最早规定惩罚性赔偿的就是《消费者权益保护法》，后又被其他与消费者权益保护密切相关法律规范借鉴，将其作为一般赔偿责任的例外。本次《民法典》的编纂，相比于《侵权责任法》第十五条列举的八种“承担侵权责任的方式”，第一百七十九条第二款明确规定“法律规定惩罚性赔偿的，依照其规定”，从而将惩罚性赔偿与填补性、预防性的一般责任承担方式置于并列的位置。当然，《民法典》第一百七十九条第二款作为指引性规定，需要法律有明确规定才得以适用惩罚性赔偿，目前消费者权益保护制度中，主要涉及的规定有：   ◆《消费者权益保护法》第55条（欺诈情形下，赔偿3倍价款或服务费、最低500元，经营者明知商品或者服务存在缺陷，赔偿2倍损失）； ◆ 《食品安全法》第148条（生产不符合食品安全标准的食品或者经营明知不符合食品安全标准的食品的，赔偿10倍价款或3倍损失）； ◆ 《旅游法》第70条（有履行条件，经要求仍拒绝，造成人身损害、滞留等严重后果的，赔偿1-3倍旅游费用）； ◆ 《最高人民法院关于审理旅游纠纷案件适用法律若干问题的规定》（法释〔2010〕13号）第17条（提供服务时欺诈的，赔偿2倍损失）； ◆ 《最高人民法院关于审理商品房买卖合同纠纷案件适用法律若干问题的解释》（法释〔2003〕7号）第8条、第9条（隐瞒无（真实）许可证、已抵押、已卖给第三人或为拆迁补偿安置房屋的，一房二卖、又抵押，赔偿不超过已付价款１倍）、第14条（房屋面积小于约定面积并超过３％，面积误差比超过3％部分的房价款由出卖人双倍返还买受人）。   除其他法律规定的惩罚性赔偿外，《民法典》侵权责任分编第1207条规定了产品侵权责任中的惩罚性赔偿，规定“其中明知产品存在缺陷仍然生产、销售，或者没有依据前条规定采取有效补救措施，造成他人死亡或者健康严重损害的，被侵权人有权请求相应的惩罚性赔偿”，相比于《侵权责任法》第47条、《消费者权益保护法》第55条第2款，增加了“没有依据前条规定采取有效补救措施”这一情形，至于其中“相应的惩罚性赔偿”，有《消费者权益保护法》、《食品安全法》、《旅游法》等有明确规定的，应适用特别规定，没有特别规定的适用《民法典》第1207条，这给法院自由裁量权留有一定的空间，也有待其他规定的完善。   《民法典》将惩罚性赔偿明确纳入民事责任范围，并予以适当扩展，有助于缓解大量消费者侵权导致的负面影响，提升社会治理效率，在指引消费者权益保护制度明确惩罚性赔偿相关规定的同时，也应注意制度的体系性设计，以确保在术语界定、消费者主体资格的认定标准、侵权人与被侵权人主观状态应否（或如何）限制惩罚性赔偿、赔偿责任竞合时的处理等方面实现制度的逻辑自恰、适用标准的相对统一。     其二，《民法典》对格式条款的规定作出调整，拓展了《消费者权益保护法》的相关规则，为消费领域中订立格式条款的消费者提供了更为全面、有利的制度保障。   《民法典》第496条规定“格式条款的定入规则”，相比于《合同法》及《合同法司法解释（二）》：1.扩大了格式条款提供者提示说明义务的范围，增加了“与对方有重大利害关系的条款”的提示说明义务（应参考和吸纳了《消费者权益保护法》第26条的规定），即不限于免除或减轻其责任的条款，一切与对方有重大利害关系的条款均需尽到合理的提示说明义务；2.提高了提示说明义务的要求，不仅需要对方注意到相关条款，还需确保对方理解；3.明确了提示说明义务违反的法律后果，即对方可主张相关条款不作为合同的内容，其内在法理在于双方未就该条款达成“合意”，该条款因缺乏意思表示这一合同成立的要件而未成立。这相比于《合同法司法解释（二）》“可申请撤销”的规则，降低了诉讼成本、取消了撤销权行使期间的限制，从而更加简明、直接的保护了消费者的权利。   《民法典》第497条规定“格式条款的效力规则”，确定三种情况下格式条款无效，即违反民事行为效力规定的，排除对方主要权利的，以及不合理地免除或者减轻其责任、加重对方责任、限制对方主要权利的，需要注意的是，以上三种情形下格式条款均无效，至于是否解释说明在所不论。相比于《合同法》关于“提供格式条款一方免除其责任、加重对方责任”的格式合同一律无效的规定，《民法典》增加了“不合理地”这一限制条件，与此同时，增加了“减轻其责任”这一情形。   《民法典》第498条规定“格式条款的解释规则”，与合同法一致，即格式条款和非格式条款不一致的，应当采用非格式条款。   从目前《民法典》的相关规定看，并没有对消费者合同与商事合同的适用进行区分，但实践中两商事主体的合同纠纷主张适用该规则的，法院及仲裁机构往往持谦抑和谨慎的态度。格式条款规则最早就源于《消费者权益保护法》，故其应在消费者权益保护制服中的应用本身并无异议。但消费者权益保护制度可在《民法典》的立法指引下，从规则上体现消费者权益保护领域相比于其他商事领域，对消费者的特别保护，并针对不同应用场景进行类型化的划分，并对“重大利害关系”、“合理提示”、“对方理解”等的认定作出更有针对性的规定，比如：   1.如何界定“重大利害关系”？如争议解决条款是否有“重大利害关系”？最高人民法院2018年公布的《最高人民法院关于互联网法院审理案件若干问题的规定》第3条第2款规定:“电子商务经营者、网络服务提供商等采取格式条款形式与用户订立管辖协议的，应当符合法律及司法解释关于格式条款的规定。”   2.何种方式可认定为“合理提示”？通常需考察提示方式、时间、地点等，以保监会2012年2月23日颁布的《关于加强机动车商业保险条款费率管理的通知》为例，第2第2项和第3项规定了机动车商业保险条款的提示说明义务规范:“商业车险条款应当内容完整、格式清晰、方便阅读”。“保险公司应当在投保单首页最显著的位置，用红色四号以上字体增加‘责任免除特别提示’，对保险条款中免除保险公司责任等条款作出足以引起投保人注意的提示，并采用通俗易懂的方式，对该条款的内容以书面或者口头形式向投保人作出明确说明。保险公司应当提示投保人在投保单‘责任免除特别提示’下手书:‘经保险人明确说明，本人已了解责任免除条款的内容’并签名。”也有学者提出，应以格式条款对法律的背离度为标准，将之分为三类：未背离法律的盾式条款，无须提示即可纳入；背离法律推定的许可或弱豁免的剑式条款，经合理显著的概括提示可以纳入；背离法律明定的强许可或强豁免的钩式条款,在符合合理显著的提示标准之外,还须单独提示方可纳入。当然，这种细致规定恐怕不适合直接入法，但可以做规范性文件和司法指引。   3.何种情形可认定为“对方理解”？在“已知悉全部合同条款”的字样后签字，能否认定为“理解”？消费者手写“已理解上述须知的内容”，能否认定为“理解”？电子合同中在“已阅读”处打钩，能否认定为“理解”？以电子商务领域的格式合同为例，2014年7月30日国家工商总局发布《网络交易平台合同格式条款规范指引》（工商市字(2014)144号）第9条的规定，以及《电子商务法》第49条的规定，需在《民法典》的规则指引下，进行修正和完善，对电子商务领域的格式条款订入控制设置特别规则。         其三，《民法典》丰富和完善了个人信息保护规则，与《消费者权益保护法》、《个人信息法》、《网络安全法》等规定一起，全面构建了消费者个人信息保护制度，从而全方位保障消费者个人信息安全。   2013年修改《消费者权益保护法》，第一次将“个人信息受到保护”作为消费者权益予以确定，个人信息保护才进入民事法律规制范畴。（《消费者权益保护法》规定消费者在购买、使用商品和接受服务时，享有个人信息依法得到保护的权利；经营者收集使用消费者个人信息，应当遵循合法正当必要的原则，明示收集使用信息的目的方式和范围，并经消费者同意；经营者侵害消费者个人信息得到保护的权利的，应当承担相应的民事责任、行政责任等法律责任等。）   随着经济与科技的高速发展，APP、SDK（Software Development Kit，软件开发工具包）违规收集、处理用户个人信息的情况时常发生，对个人隐私保护构成严重威胁；个人信息非法交易猖獗，时刻侵害着消费者个人隐私；人脸识别等新技术的滥用为个人生物信息泄露埋下巨大隐患。诸多个人信息安全的乱象推动着个人信息保护制度的建设。   《民法典》回应上述热点问题和法治需要，在人格权编的第六章专设“隐私权和个人信息”一章，对个人信息保护问题进行了专门规范，结合总则编及人格权编一般规定，以及合同编、侵权责任编相关规定，构建了我国民事基本法中关于个人信息保护的制度框架和基础。《民法典》确立了“知情同意”的个人信息处理原则，经营者未告知用户收集个人信息的目的、方式、范围或未经用户同意，私自收集用户个人信息；未以显著方式标示或未经用户同意，将收集到的用户搜索、浏览记录、使用习惯等个人信息，用于定向推送或广告精准营销，且未提供关闭该功能选项的行为均构成对消费者权益的侵害，应承担相应责任。   在《民法典》的统领下，近年来，国家不断出台法律、法规保障个人信息安全。其中，2021年3年15日国家市场监督管理总局发布《网络交易监督管理办法》（2021年5月1日实施，国家市场监督管理总局令第37号），就对网络消费者个人信息的收集和使用做出了详细规定，以保护消费者个人信息安全。   2021年9月1日实施的《数据安全法》规定“任何组织、个人收集数据，应当采取合法、正当的方式，不得窃取或者以其他非法方式获取数据”，数据处理活动不得损害“个人、组织的合法权益”。   2021年8月20日发布、11月1日生效的《个人信息保护法》，作为我国第一部保护个人信息的单行立法更是补缺了我

2022-03-15

Civil and Commercial Perspective... The drafting and performance of the bequest.

Brief of the case Uncle Zhang and Aunt Wang have three daughters and a son, all three daughters have daughters, and the son has a son. . Uncle Zhang and Aunt Wang love their grandson very much and want to leave their own property to their grandson after a hundred years. How can we make Uncle Zhang and Aunt Wang get what he wants? Lawyer Advice In this case, Uncle Zhang and Aunt Wang can write a bequest in their own hands, with grandparents as bequeaths and grandsons as recipients, and grandparents indicating in the bequest that their property will be owned by their grandchildren after a hundred years. It is important to emphasize here that it must be a bequest rather than a will, because the grandson is not his legal heir and does not fall within the scope of testamentary succession. In order to ensure the validity of the bequest, because the two parties are 70 years old, before the bequest, it is recommended that Uncle Zhang and Aunt Wang file a lawsuit with the local court in accordance with the cause of the special procedure case, and file a judicial appraisal application to request whether they have civil capacity to identify. If the appraisal institution is identified as a person with civil capacity and declared by the court as having civil capacity, a valid bequest may be made. At the same time of writing the bequest, they should also write two pages of autograph for standby (if the legal heir of the old man has any objection to the authenticity of the bequest, he can apply for handwriting identification of the bequest as a test material), and then the two people write the bequest in full, and autograph and date. If the Legacy Agreement exceeds one page, each page shall be autographed. It is best to let the lawyer witness (or notarize by the notary office) the writing process of the bequest, so as to prove the authenticity of the bequest, signature and date written by the two old people. Since the bequest was made unilaterally by the two old men, the grandson did not participate in the whole process and did not need to sign the bequest. According to the relevant legal provisions, the bequest is a private document and is presumed to be true as long as it is signed or stamped by the maker. The intention of the bequest to give the property to another person indicates that although it was made before the bequest, the transfer of ownership of the property did not occur before the bequest's death, and the bequest would have legal effect only after the bequest's death. His grandson must make a statement of acceptance of the bequest within 60 days from the date on which he knows or should have known of the bequest, otherwise he shall be deemed to have waived the bequest. Regarding the starting point of the bequestee "knowing the bequest within 60 days after the bequest", the author believes that because the inheritance starts from the death of the heir, the bequest occurs only after the beginning of the inheritance, so the earliest starting point of 60 days is from the date of the bequest's death. In other words, if the bequestee was informed of the bequest before the bequestee's death, he shall make an indication of acceptance of the bequest within 60 days from the date of the bequestee's death, and if the bequestee did not learn of the bequest until after the bequestee's death, he shall make an indication of acceptance of the bequest within 60 days of the bequest. The concept of bequest The so-called bequest refers to a way of dealing with an estate in which a natural person gives part or all of his legal property to a person other than the legal heir or a state or collective organization in the form of a will. Supreme People's Court judicial view that First, bequests are unilateral, essential civil legal acts. When a legatee gives his personal property to another person by way of a will, he does not need to obtain the consent of the legatee and any other person. The act of bequest must be carried out in the form of a will, in accordance with the legal form of the will. After the death of the bequestee, the bequestee may or may not accept the bequest. Second, a bequest is an act of giving an estate free of charge. The property benefits given by the bequestee to others through bequests are often gratuitous and, even if accompanied by some obligation, generally have no reciprocal nature, and the bequestee is not bequeathed if it gives property obligations (e. g. debts) to others or makes the bequestee's obligations exceed the rights it enjoys. Third, a bequest is a legal act that takes effect on the occurrence of the fact of death. Although a bequest is an expression of meaning made in a will before the bequest, it must take legal effect only after the bequest's death, so it can be understood as a conditional legal act. Before the bequestee makes a bequest without death, he may change or revoke his intention at any time in accordance with the law. Fourth, the bequestee must survive when the bequest takes effect. If the bequestee dies before the bequestee or at the same time as the bequestee, he cannot become a bequestee because the bequest has not yet taken effect, nor can a legal person become a bequestee if it has been revoked or dissolved at the time of the bequestee's death. Fifth, the bequestee must be a person other than the State, the collective or the legal heir. The legal heir cannot be a legatee, but can only be an heir to the will. The heir to the will can only be designated within the scope of the legal heir, and the bequestee can only be designated outside the scope of the legal heir. In addition, the bequestee must have civil capacity, and the bequest written by the person without civil capacity has no legal effect. For example, minors, mental patients, etc. have no capacity for civil conduct, so their bequests have no legal effect. When a natural person gives his personal property in the form of a will to a person other than the state, collective or legal heir, once the natural person dies, the bequestee knows the bequest of the bequestee, there is a problem of accepting or abandoning the bequest. By nature, the acceptance of a bequest or the abandonment of a bequest is a unilateral civil legal act, that is, as long as the bequestee's unilateral expression can have legal effect, resulting in the consequences of accepting the estate or abandoning the estate. Accepting a bequest requires attention to the following issues (1) The subject of the acceptance or abandonment of the bequest. The subject of the bequest may be the bequestee himself or his agent. (2) The time limit for accepting the bequest. The bequestee shall make an indication of acceptance within 60 days (it must be noted that it is within 60 days, not two months) after the death of the bequestee and the knowledge of the bequest. The 60-day representation period is self-knowledge of the fact of the bequest, and the "knowledge of the fact of the bequest" should be understood as "knowledge or should have known". (3) The form of acceptance of the bequest. To accept a bequest, there must be a clear expression of meaning, the so-called clear expression of meaning, that is, the act of expression must be able to confirm the acceptance of the bequest. The form of representation may be written or other forms, direct or indirect, but to the extent that the acceptance of the bequest can be confirmed. If the bequestee has not expressed its acceptance in writing or orally, but its specific conduct can reflect its acceptance of the bequest, it should also be considered to accept the inheritance, and it cannot simply deny its right to accept the bequest without making a written statement. (4) The right to accept a bequest may be transferred to another person. After the commencement of the inheritance, if the bequestee expressly accepts the bequest, he may transfer the right to another person, and other heirs cannot restrict it, which is in fact a disposition of his own property under civil law. Another way of transfer is that after the commencement of the inheritance, the bequestee has indicated that he accepts the bequest, but dies before the division of the estate, and his right to accept the bequest may be transferred to his heirs in accordance with the law. (5) Treatment of obligatory bequests. If the bequest is accompanied by an obligation, it is necessary to perform the obligation in order to receive the bequest, but whether the obligation is performed first depends on the requirement of the bequest of the decedent. In practice, if the obligation can be fulfilled and the legatee fails to do so without justifiable reasons, the people's court may cancel the right to accept part of the estate with the obligation upon the request of the beneficiary or other heirs, and the requesting heir or beneficiary shall be responsible for performing the obligation and accepting the estate according to the will of the testator; if the legatee with the obligation is indeed unable to perform due to objective reasons, etc, the limitation of rights to bequeathed estates needs to be dealt with on a case-by-case basis, which is not explicitly provided for in the current law. Extended thinking: What to do if the bequestee dies before the estate is divided. If the bequestee dies before the division of the estate, the right of his heirs to accept the bequest depends on the expression of the bequest before the bequest. Only when the bequestee expressly accepts the bequest can he enjoy the right to accept the bequest, and if he waives the bequest, he no longer enjoys the right, and if he does not express it, he is deemed to have waived the bequest and does not enjoy the right. Thus, in the case of the bequestee's acceptance of the bequeathed property, the bequestee's heirs have the right to accept the bequeathed property, and if the bequestee renounces the bequest before life or does not express the bequest, the bequestee's heirs no longer have the right to accept the bequest property because the bequestee does not have the right. Relevant legal provisions (1) the People's Republic of China Civil Code Article 1122: An estate is the lawful property of an individual left over from the death of a natural person. Inheritance may not be inherited in accordance with the provisions of the law or in accordance with its nature. Article 1123: After the commencement of inheritance, it shall be handled in accordance with legal inheritance, and if there is a will, it shall be handled in accordance with testamentary inheritance or bequest; if there is a bequest and maintenance agreement, it shall be handled in accordance with the agreement. Article 124: If the heir renounces the inheritance after the inheritance has begun, he shall make a written statement of renunciation before the estate is disposed of; if there is no such statement, the inheritance shall be deemed to be accepted. The donee shall, within 60 days after knowing the bequest, make a statement of acceptance or abandonment of the bequest. 2. Article 38 of the (I) of the Supreme People's Court on the Interpretation of the Inheritance Code of the the People's Republic of China Civil Code: "If, after the commencement of inheritance, the bequestee expresses his acceptance of the bequest and dies before the division of the estate, his right to accept the bequest is transferred to his heirs." 3. Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings (Revised 2019, effective as of May 1, 2020) Article 92 With regard to the authenticity of private documentary evidence, the burden of proof shall be borne by the party who claims to prove the facts of the case by private documentary evidence. If the private document certificate is signed, sealed or stamped by the producer or his agent, it is presumed to be true. If there is any deletion, alteration, addition or other form of defect on a private document, the people's court shall judge its probative force on the basis of the specific circumstances of the case.

2022-03-14

Viewpoint | From "several crimes" to "exemption from punishment" ------ the whole defense of a middle school student's crime-related case

Recently, Jia Xincui, director of the criminal department of Zhongcheng Qingtai (Jinan) Law Firm, accepted the entrustment to handle a case in which a senior high school student was suspected of provoking trouble and gathering people to fight. The case involved nearly 30 high school students, and most of them were close to the college entrance examination. The children's lives seemed to be full of haze. The defense lawyer defended the whole process, peeling off the cocoon layer by layer, from combined punishment for several crimes to exemption from criminal punishment, the sky of the children finally opened. Brief of the case Client Li Moumou (senior high school students) was insulted by Lin and others (all senior high school students) and made an appointment with Lin and others. There were about 8 people in Li and 22 people in Lin. After the two sides arrived at the agreed reservoir, there was a fight, causing one person to be slightly injured. In the afternoon, because classmate Liu Moumou wanted to ask Wang Mou for his girlfriend's medical expenses, Li Moumou followed Liu Moumou to the scene. Liu Moumou beat Wang Mou and demanded 2000 yuan from Wang Mou. The public security organ filed a case on suspicion of gathering people to fight and provoke quarrels, and the public security bureau of a certain district handled the case as a crime-related case. Because the case involved a large number of people, all of whom were students at school, and involved two administrative regions, after the incident, it caused great concern in the two districts. The defense process Investigation stage: The defender proposed that this case is not a criminal case involving gangs, but only a dispute between students and does not constitute a crime. Later, the public security organ took the case as a general criminal case and transferred it to the procuratorate on suspicion of provoking quarrels and affray; Review and prosecution stage: the defender proposed that Li did not constitute the crime of provoking trouble, although there was an act of affray, but it could not be regarded as a crime, and suggested not to prosecute. The procuratorial organ recognized that Li did not constitute the crime of provoking quarrels, but constituted the crime of affray, and filed a lawsuit in the court on suspicion of affray; Trial stage: The defender proposed that although Li Moumou and others had the behavior of gathering crowds to fight, they belonged to a group fight between middle school students due to ordinary conflicts, and the persons involved in the case were all high school students who were about to take the college entrance examination and applied for them. Exempt from punishment. The court finally accepted the defender's opinion and exempted the two (principal offenders) from criminal punishment. The procuratorate then made a decision not to prosecute the remaining 20 or so involved. A whirlwind of adolescence ends in calm. Enlightenment of this case 1. 30 high school students, there are 30 families behind them. If they are treated as crimes, the life trajectory of 30 children will be rewritten. They may really become the opposite of society. The result of such treatment will be unbearable for children, families and society; adolescent children are a special group, and more tolerance and help should be given to them; The ultimate goal of 2. justice is not to punish, but to educate, guide and inspire people's good thoughts and good deeds. The handling of this case is a judicial process with a temperature, which has achieved a high degree of unity between legal and social effects; 3. the current Supreme People's Procuratorate's judicial concept of less arrest, cautious prosecution and cautious judgment is conducive to maintaining social stability and promoting judicial progress; 4. defense lawyers should be able to defend the whole process, and they can do much at the three stages of public, procuratorial and legal.

2022-03-14