Viewpoint... The subject qualification determination and judicial application rules of the third party's withdrawal of the lawsuit.

Introduction As one of the three ways to remedy the rights of outsiders, the third party's revocation lawsuit system is a new system established on the basis of the execution of the objection lawsuit and the outsider's application for retrial. Since the system was established by the Civil Procedure Law in 2012, it has played an increasingly important role in trial practice. As the premise and focus of the trial of such cases, the qualification examination of the subject of the third party to withdraw the lawsuit is controversial in theory and judicial practice. 1. of the Civil Procedure Law of the People's Republic of China to determine the subject qualification of the third party to revoke the action According to the provisions of the first and second paragraphs of Article 59 of the Civil Procedure Law, the third party shall have the right to file a lawsuit against the subject matter of the litigation of both parties if it considers that there is an independent right of claim. Although the third party has no independent claim to the subject matter of the litigation of both parties, if the outcome of the case has a legal interest in him, he may apply to participate in the litigation, or the people's court shall notify him to participate in the litigation. The third party who bears civil liability in the judgment of the people's court shall have the litigation rights and obligations of the parties. Thus, the subject of the third party's revocation action includes two types of third parties, namely, the right of independent claim and the right of non-independent claim. Among them, "a third person with an independent claim" refers to a person who participates in the litigation, whether in whole or in part, as an independent entity right holder, in the subject matter of the litigation between others. "No independent claim third party" refers to the subject matter of the litigation of both parties. Although the third party has no independent claim, but the result of the case has a legal interest with it, it can apply to participate in the litigation, or the people's court Notify the person who participated in the lawsuit. Disputes 2. the qualification of ordinary creditors to bring a third-party revocation suit. There is a great deal of controversy in judicial practice as to whether ordinary creditors with independent claims and third parties other than those without independent claims, as stipulated in the Civil Procedure Law, can bring a third-party revocation suit: The view 1. completely negates that The view was that an ordinary creditor could not independently claim substantive rights in respect of the subject matter in the original case and was not a third person with an independent claim in the case. At the same time, based on the relativity and independence of the claim, the creditor has only an economic interest rather than a legal interest in the outcome of the original case, and is not a third party without an independent claim, and does not meet the subject conditions of the third party's revocation of the claim as stipulated in Article 59 of the current Civil Procedure Law. [Bulletin Case] (2017) Supreme Law Minzong No. 319 The main purpose of the decision: the subject of the third party's revocation shall be strictly limited to two types of third parties with independent claims and no independent claims, and the subject of the right to bring a third party's revocation shall not be extended to two types of third parties who enjoy ordinary claims. The court held that the original case was a dispute over the equity transfer contract between Chen Lianying and Jin Hengkun Company, XX Ping and Shen Jinlong. Hu Bingguang and other five people are ordinary creditors who have a private lending relationship with Chen Lianying. First of all, as far as the original case is concerned, that is, the equity transfer contract dispute between Chen Lianying and Jin Hengkun Company, XX Ping and Shen Jinlong, Hu Bingguang and other five people do not enjoy the independent claim right to the litigation object of both parties in the original case, and they do not belong to the third party with the independent claim right stipulated in the first paragraph of Article 56 of the the People's Republic of China Civil Procedure Law. Secondly, no matter how the original case, that is, the equity transfer contract dispute between Chen Lianying and Jin Hengkun Company, XX Ping and Shen Jinlong, the result will not affect the rights and obligations under the private lending legal relationship between Hu Bingguang and other five people and Chen Lianying. Hu Bingguang and other five people, as ordinary creditors who have a private lending relationship with Chen Lianying, have a certain de facto relationship with the original case in terms of whether the creditor's rights can be realized, but this de facto relationship is different from legal interests. As far as the original case is concerned, Hu Bingguang and other five people do not belong to the third party without independent claim as stipulated in the second paragraph of Article 56 of the the People's Republic of China Civil Procedure Law. opinion 2. conditional affirmation In this view, ordinary creditors have the subject standing to bring a third-party revocation suit under certain conditions. The legislative purpose of the third party's revocation lawsuit is to provide relief to the third party who has been infringed by the false lawsuit, and should expand the interpretation of Article 59 of the current Civil Procedure Law to include ordinary creditors in the category of third parties. However, considering that the third party's revocation action is a special relief procedure, in order to prevent the abuse of the right of action, and taking into account the authority of the effective judicial instrument, strict conditions should be set for ordinary creditors to bring a third party's revocation action. Ordinary creditors generally do not have the right to bring a third-party revocation action, but in some special circumstances, if the creditor has the right of revocation against the debtor's related civil acts, there is evidence that the debtor's external litigation is suspected of false litigation, the third-party revocation action may be brought. [Guidance Case] (2017) Supreme Law Minzhong No. 626 The main purpose of the decision: because the rights and obligations of the debtor and others are determined by the effective decision document, resulting in the creditor could not exercise the right of avoidance of the debtor's conduct under Article 74 of the Contract Law (Articles 538-540 of the Civil Code), the creditor may bring a third party to cancel the action. The court held that: looking at the relevant provisions of the current civil procedure law on the relief of the third party who has suffered damage to civil rights and interests, such as the third party revocation lawsuit, the outsider's execution objection and the trial supervision procedure, combined with the practical need of establishing the third party revocation lawsuit system for strengthening the relief of the third party who has damaged the legitimate rights and interests due to false litigation or transferring property through litigation, evading debts and other acts in the revision of the civil procedure in 2012, it cannot be concluded that the civil rights and interests claimed by the guarantee center in this case do not fall within the scope of the remedy of the third party's revocation. Therefore, although the relationship between the guarantee center and Wang Wei belongs to creditor's rights and debts in this case, based on the relationship between the guarantee center's creditor's rights to Wang Wei and the aquaculture plant transferred by Wang Wei, the preservation and enforcement measures taken by the court in the litigation and enforcement procedures for the due creditor's rights transferred by Wang Wei due to the aquaculture plant make the impact on the interests of the guarantee center, as well as the basic facts of this case that the guarantee center claims that the damaged civil rights and interests have obstacles to filing a revocation right lawsuit according to Article 74 of the Contract Law due to civil mediation document No. 183, it can be concluded that Wang Wei and Lu Jinying have a legal interest in the handling result of the dispute over the sales contract with the guarantee center, and the guarantee center has the right to file a lawsuit for revocation by the third party in this case. [Supreme Law Case] (2018) Supreme Law Minshen No. 3403 The main purpose of the decision: Ordinary creditors damaged by false litigation have the right to file a third-party revocation. The court held that the question of whether Ding Jianbing was a qualified plaintiff in the third party's revocation lawsuit had been clarified in the original trial. That is to say, in the original lawsuit, Ruiya Company requested to confirm the invalidity of the Commodity House Sales Contract with Xu Aiyun, which only involved the relationship between Ruiya Company and Xu Aiyun. Ding Jianbing did not put forward an independent claim on the subject matter of the original lawsuit. The subject matter of the original lawsuit and the private loan contract and the guarantee contract involved in the case No. 20 are independent of each other, and have no legal implications, therefore, Ding Jianbing is not a third party with an independent claim, nor is he a third party without an independent claim who has a legal interest in the original case. However, one of the main purposes of the revision of the the People's Republic of China Civil Procedure Law in 2012 to create the third party revocation litigation system is to regulate false litigation. Therefore, in addition to the third party with the right of independent claim and the third party without the right of independent claim, the subject of the third party's revocation of the lawsuit also includes the third party whose civil rights and interests have been infringed by the false lawsuit, and the ordinary creditor whose claim is difficult to realize due to the result of the original judgment also has the subject qualification to bring the third party's revocation lawsuit. In this case, Ding Jianbing applied for pre-seizure of the presale commercial housing purchased by Xu Aiyun, the original party, and obtained a successful judgment. The realization of his creditor's rights is related to whether the pre-seizure property can be realized, and the result of the original judgment may defeat the purpose of pre-seizure. In fact, Raya Company has also filed a separate lawsuit against the execution of the pre-seizure act by outsiders based on the effective judgment of the original case, demanding to block the execution of the property involved in the case. In the case of claiming that there is a false lawsuit in the original case, Ding Jianbing, as a creditor, has the subject qualification to bring a third party to cancel the lawsuit. The expansion of the subject qualification of the third party's revocation lawsuit in the Minutes of the Ninth People's Conference in 3.. Article 120 of the Minutes of the Ninth People's Meeting stipulates that the third party in the third party's revocation action is limited to the third party with independent claim and no independent claim as stipulated in Article 56 of the Civil Procedure Law, and generally does not include creditors. However, the purpose of the establishment of the third party's revocation suit is to remedy the civil rights and interests enjoyed by the third party who did not participate in the proceedings because of the cause that cannot be attributed to him but was damaged by the wrong content of the effective adjudication document. Therefore, the creditor can bring the third party's revocation suit under the following circumstances:(1) the creditor's right is the creditor's right that the law clearly gives special protection, for example, the priority of compensation for construction project price stipulated in Article 286 of the Contract Law and the priority of ships stipulated in Article 22 of the Maritime Law;(2) Because the rights and obligations of the debtor and others are determined by the effective judgment document, the creditor could have enjoyed the right of revocation but could not exercise the debtor's behavior stipulated in Article 74 of the Contract Law and Article 31 of the Enterprise Bankruptcy Law;(3) The creditor has evidence to prove, the contents of the creditor's rights determined in the main text of the judgment document are partly or wholly false. Creditors also have to meet other conditions stipulated in the law and judicial interpretation to file a third party revocation suit. For other claims, creditors may not, in principle, sue for avoidance by a third party. As a result, the Minutes of the Ninth People's Meeting, on the one hand, strengthens the third party with independent claim and the third party without independent claim as the subject of the third party's revocation lawsuit stipulated in Article 59 of the current Civil Procedure Law, and on the other hand, appropriately expands the subject of the third party's revocation lawsuit, bringing creditors in line with specific circumstances into the subject category of the third party. However, in order to prevent outsiders from abusing their litigation rights and affecting the stability and authority of the effective decision, the Minutes of the Ninth People's Meeting strictly limits the subject qualification of creditors to bring a third-party revocation suit, that is, it is limited to creditors who have priority, statutory revocation rights and who are victims of false litigation in accordance with the law. Conclusion The plaintiff of the third party's revocation action should be the third party who did not participate in the original litigation because it could not be attributed to himself, including the third party with the right of independent claim and the third party without the right of independent claim. In principle, ordinary creditors are not protected by a third-party revocation suit, I .e., the ordinary creditors of the original parties are generally not able to initiate a third-party revocation suit as a plaintiff. However, if the parties in the original case collude in bad faith to carry out false litigation, ordinary creditors may, as victims of false litigation, file a third-party revocation suit; in addition, the law clearly provides for special protection of claims, including those with legal priority and those with legal right of revocation, can also be protected by a third-party revocation suit.

2022-03-11

Judicial Interpretation of the General Provisions of the Civil Code | Interpretation of "Major Misunderstandings"

The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the General Provisions of the the People's Republic of China Civil Code (hereinafter referred to as the "Judicial Interpretation of the General Provisions of the Civil Code") was adopted at the 1861st meeting of the Judicial Committee of the Supreme People's Court on December 30, 2021 and will come into force on March 1, 2022. The judicial interpretation of the general provisions of the civil code is an in-depth and detailed interpretation of the ten chapters in the general provisions of the first part of the civil code. It is an interpretation formulated by the Supreme People's court in order to correctly hear civil cases, protect the legitimate rights and interests of civil subjects according to law, and maintain social and economic order, in accordance with the the People's Republic of China civil code, the People's Republic of China civil procedure law and other relevant laws and regulations, combined with trial practice. Articles 19 and 20 of the Judicial Interpretation of the General Provisions of the Civil Code are the interpretations of major misunderstandings in Article 147 of the Civil Code. With the continuous development of the theory and practice types of civil legal acts, the understanding and scope of application of "major misunderstandings" have also changed. This article will start from the "Judicial Interpretation of the General Provisions of the Civil Code" to interpret "major misunderstandings. Historical changes in relevant provisions of 1. major misunderstandings General Principles of the People's Republic of China Civil Law (2009 Amendment) (Expired) Article 59 A party shall have the right to request a people's court or an arbitration organ to modify or cancel the following civil acts: The perpetrator of the (I) has a major misunderstanding of the content of the act; (II) is obviously unfair. A revoked civil act shall be null and void from the beginning of the act. Opinions of the Supreme People's Court on Several Issues concerning the Implementation of the General Principles of the the People's Republic of China Civil Law (for Trial Implementation) (Expired) 71. If the perpetrator's misunderstanding of the nature of the act, the other party, the variety, quality, specification and quantity of the subject matter makes the consequences of the act contrary to his own meaning and causes greater losses, it may be considered a major misunderstanding. 73. If the parties request a change in a major misunderstanding or obviously unfair civil act, the people's court shall change it; if the parties request a revocation, the people's court may, as appropriate, change or revoke it. The people's court shall not protect a civil act that can be changed or revoked if the party concerned requests to change or revoke it more than one year from the time of its establishment. 77. The meaning is conveyed by the obligation of a third party, and if the third party causes damage to others due to negligence or failure to convey, the meaning person may generally be liable for compensation. However, unless otherwise provided by law or otherwise agreed by both parties. the People's Republic of China Civil Code Article 147 The perpetrator of a civil juristic act committed on the basis of a material misunderstanding shall have the right to request a people's court or an arbitration institution to cancel it. Guidelines for the Operation of Litigation Operations in Civil Contract Dispute Cases Article 11 The examination of whether a major misunderstanding is constituted shall be conducted in the following aspects: (I) whether the counterparty to the contract has a major misunderstanding of the nature of the contract, the type, quantity, quality, and consequences of the subject matter; Whether the (II) misunderstanding was caused by the misunderstood party itself and not by fraud or improper influence on the other party; whether the counterparty to the contract made the wrong meaning as a result of a material misunderstanding; and whether the misunderstanding directly affected the rights and obligations of the misunderstood party. Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the General Provisions of the the People's Republic of China Civil Code Article 19 If the perpetrator has a wrong understanding of the nature of the act, the other party or the variety, quality, specification, price, quantity, etc. of the subject matter, according to the usual understanding, if the wrong understanding does not occur, the perpetrator will not make a corresponding expression of intention, the people's court may determine that it is a major misunderstanding as stipulated in Article 147 of the Civil Code. If the perpetrator can prove that there was a major misunderstanding in the implementation of the civil legal act and request the revocation of the civil legal act, the people's court shall support it in accordance with the law; however, unless it is determined that the perpetrator has no right to request revocation based on transaction habits. Article 20 If the perpetrator requests the revocation of a civil juristic act on the ground that his will expresses the existence of a third party's transmission error, the provisions of Article 19 of this Interpretation shall apply. Interpretation of the current judicial interpretation of 2. major misunderstandings Definition of (I) "Major Misunderstanding" Article 71 of the "People's Opinions": "The perpetrator's misunderstanding of the nature of the act, the other party, the variety, quality, specification, and quantity of the subject matter makes the consequences of the act contrary to his own meaning and causes greater losses., Can be considered a major misunderstanding." The invalid "People's Opinions" summarized that it was identified as a "major misunderstanding", which was a misunderstanding that made the consequences of the behavior contrary to its own meaning and caused greater losses. The first paragraph of Article 19 of the Judicial Interpretation of the General Provisions of the Civil Code is amended to read, in accordance with the usual understanding, that if the wrong understanding does not occur, the perpetrator will not make a corresponding intention. This amendment not only perfects the expression of "contrary to meaning", but also reasonably deletes "causing loss. 1. "Major misunderstanding" itself is a kind of meaning expression, which is made on the basis of wrong understanding. If there is no "wrong" understanding, it will not be based on "error" and "meaning". Therefore, whether or not to cause a large loss can not be the basic element to judge whether it constitutes a major misunderstanding, from the result of the act to extrapolate the nature of the act itself is a logical reversal, so that some of the wrong understanding to make the corresponding meaning but did not produce the corresponding loss of the act can not be characterized. 2. If the wrong understanding does not occur, the actor will not make the corresponding understanding. First of all, the wrong understanding is the nature of the error rather than the value of the error. The nature error includes the nature of the act, the other party or the subject matter of the variety, quality, specification, price, quantity and other objective existence of the wrong judgment, and personal value judgment is not included. Example: Wang's husband, Li, died in a traffic accident on the way to send Zhang a driver's license. Zhang mistakenly thought that he should bear tort liability for Li's death, so he signed an economic compensation agreement with Wang for 200000 yuan. After Zhang fulfilled part of the payment, he found that he had a misunderstanding of the law. In fact, he did not have to bear any legal responsibility for Li's death, so he did not agree to fulfill the obligation of payment. The court of second instance held that the agreement between Zhang and Wang was valid, "and Zhang's personal value judgment, that is, the wrong understanding of the law, was not a major misunderstanding, and accordingly rejected Zhang's appeal request. Secondly, according to the principle of "interpretation precedes error", according to the rules of interpretation of meaning, combined with the objective situation and specific background at the time of the act, to confirm the normative meaning of the expression of the act, if the normative meaning is inconsistent with the inner meaning of the meaning of the person, it constitutes a major misunderstanding. For example, a Tmall store mistakenly set the navel orange of "4500g in 26 yuan" to "4500kg in 26 yuan" due to operational errors. Millions of orders were formed overnight. After a large number of buyers placed orders, they complained to the Tmall platform on the grounds that the store did not deliver the goods on time, resulting in the deposit of the store being deducted and closed. The buyer agreed to the seller's offer and made a valid commitment to establish a 26 yuan 4500kg navel orange sales contract between them, but the seller established a major misunderstanding and had the right to cancel the contract. Finally, the exclusion of "misinformation does not harm the true meaning" and "narrowly motivated errors. "Miscarriage does not harm the true meaning" means that the parties have reached an agreement on the expression of meaning, just because the expression or expression is wrong, such as the wrong use of words is not a major misunderstanding. Example: A and B agreed that A would sell 100 tons of whale meat to B. The written contract signed by the two parties stated: "A sells 100 tons of Haakjoringskod to B." "Haakjoringskod" is Norwegian and means "shark meat", but both A and B entered into the written contract with the word meaning "whale meat". It can be determined by explanation that A and B agree that A sells whale meat to B, not shark meat. Although the written contracts of A and B used the wrong words, "miscarriage does not harm the true meaning", A and B established a 100-ton whale meat sales contract instead of a 100-ton shark meat sales contract. Similarly, "error of motive in the narrow sense" means that the motive is not part of the content of the legal act, and if the content of the meaning is not wrong, the mere error of the inner cause (motive) of the meaning is not a major misunderstanding. Example: The buyer heard that a house somewhere will open the subway in two years, and then it will appreciate significantly (hearsay, not the developer's promise), so he decided to buy the house. In fact, the subway will not be opened in two years. The buyers feel that they have misunderstood the house and asked to return it. At this time, the buyer cannot ask to check out on the grounds of major misunderstanding, because this is only the wrong motive for buying a house, and the civil law does not protect the motive. (II) "trading habits" Article 19, paragraph 2, of the Judicial Interpretation of the General Provisions of the Civil Code also lists "trading habits" as an exception to the right to release major misunderstandings, and cautiously and creatively uses "trading habits" as an auxiliary line of judgment to determine whether they constitute a major misunderstanding. In considering whether a civil juristic act constitutes a "material misunderstanding", the context of the conclusion of the contract, the overall economic situation and other factors should be taken into account. For example, in the classic case, we discussed drinking a bottle of mineral water in the hotel. The guests thought it was a gift and the hotel thought it was consumption. We should consider the objective rules when judging. If it is now, the hotel will give away two bottles of water, which is also a common phenomenon. Although there is no written contract agreement, it is already a common standard for hotel accommodation agreements, and there is no major misunderstanding. Admittedly, to take a step back, even 20 years ago, there was no general rule for hotels to give away mineral water. In the absence of agreement between the two parties, it was neither a gift nor consumption. The act of picking up mineral water to drink could not constitute a promise. There was no intention to buy water. The contract was not established and there was no "major misunderstanding". The Judicial Interpretation of the General Provisions of the Civil Code adds the exception of "trading habits" and lists "trading habits" separately, taking into account the objective environment and general understanding, as well as special industry norms and specific trading habits, such as the field of art trading. Although this new rule is not used as a basis for adjudication, it is reflected in the gist of adjudication in typical cases in practice. (2011) Bai Minchu Zi No. 2694 Case Judgment Summary The buyer and the seller have confirmed the pictures and objects of the artwork before signing the contract for the sale of the artwork. In the whole transaction process, the seller has not made any evaluation, judgment and commitment to the manufacturing age and material of the artwork. Because the folk trade of art depends to a greater extent on the knowledge and experience of traders, its value depends on the spiritual needs of decoration and appreciation. Once the buyer decides to proceed with the transaction, it should be determined that the buyer does not constitute a material misunderstanding, even if the material or age of the artwork does not conform to his judgment. In this case, the buyer is not entitled to claim avoidance of the contract on the grounds of material misunderstanding. (III) the effect of "third person relaying wrong" behavior is consistent with "material misunderstanding" According to article 77 of the People's Republic of China, "The expression of intention is conveyed by the obligation of a third party, and if the third party causes losses to others due to negligence or failure to convey it, the person expressing the intention may generally be liable for compensation. Except as otherwise provided by law or otherwise agreed by both parties." This provision only allocates the responsibility for the loss arising from the "misrepresentation", establishes the principle that the person expressing the intention is liable for compensation, and the law provides otherwise or the parties agree otherwise as an exception to the allocation of responsibility, but does not give a clear characterization of the act of "misrepresentation. Article 20 of the Judicial Interpretation of the General Provisions of the Civil Code aligns the effect of the act of "third party conveying errors" with the "major misunderstanding" of Article 19. But it is worth noting that the third person to convey the error should be distinguished from the unauthorized agent. The third person's transmission error must be that the ideographic person expresses his intention to the third person to convey it. The third person's error in the process of transmission is unintentional, but the transmission effect of the error belongs to the ideographic person. In this case, the contract can be directly canceled according to major misunderstanding. According to the rule of unauthorized agency, the ideographic person can ratify the behavior of the unauthorized agent, A bona fide counterpart may exercise the right of reminder and revocation.

2022-03-09

Real estate perspective: can subcontractors, illegal subcontractors, and affiliated people claim to pay management fees to actual builders?

Presentation of 1. issues The management fee generally refers to the expenses incurred by the construction unit for the organization of construction production and management. In the general contract of construction project, no matter what kind of pricing model is adopted, the management fee is often included in the total cost of the project, and the contractor shall pay the management fee (enterprise management fee) to the general contractor according to the agreement of the general contract. In valid construction subcontracting contracts (professional subcontracting and labor subcontracting, etc.), there is basically no dispute that the general contractor charges a certain management fee to the subcontractor. On the contrary, in the case of subcontract, illegal subcontract and affiliated construction, the management fee agreed in the contract is often not the management fee in the project cost, but the "subcontract fee", "subcontract fee" or "affiliated fee", which belongs to the consideration paid by the actual construction to the subcontractor, illegal subcontractor or affiliated person (hereinafter referred to as "subcontractor" or "subcontractor") for the purpose of obtaining the project. In this case, how to deal with the subcontractor's claim for management fee to the actual builder? Or, how to deal with the claim of the actual builder's claim for the subcontractor to return the management fee deducted from the project payment? This paper intends to combine the judicial judgment point of view for analysis. 2. view of judicial adjudication On the proposition of whether subcontractors should be supported to collect management fees from actual constructors, there are roughly four views in judicial practice: first, subcontracting, illegal subcontracting and affiliation violate the mandatory provisions of laws and administrative regulations, and the contract is invalid. The management fees agreed in the contract belong to illegal income and do not fall within the scope of civil law adjustment, and should be collected or transferred to the administrative department for handling; Second, in the case of invalid contract, the management fee agreed in the contract has no factual basis. The claim of the subcontractor asking the actual builder to pay the management fee or directly deduct it from the project fund shall not be supported, and the paid or deducted shall be returned as unjust enrichment. Third, when the construction project is completed and accepted, although the contract is invalid, the project price shall still be paid (compensated) according to the contract. The management fee is part of the construction project price, so it shall be handled according to the agreement; fourth, if the subcontractor is involved in the actual construction of the project management, and paid a certain cost, rather than the subcontractor simply subcontracting for profit, should refer to the contract agreement. The specific views of the referee are as follows: The management fees agreed in (I) subcontracting, illegal subcontracting and affiliation contracts are illegal income, do not fall within the scope of adjustment of civil law, and should be collected or transferred to the administrative department for disposal. The early judgment, such as the Supreme Law (2014) Min Shen Zi No. 365, held: "In view of illegal subcontracting and illegal subcontracting in the process of project construction, we should strengthen the investigation and punishment, ensure the special funds for the project funds from the source, eliminate the hidden dangers of project quality caused by the interception of project funds at various levels, and ensure the quality and safety of the project. Therefore, the illegal issue of the South Henan Expressway Company's collection of rebates involved in this case should be dealt with by the relevant departments in accordance with the law." Subsequent judgments such as (2018) Supreme Law Minzhong No. 586 held that Article 4 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Contract Disputes stipulates that the contractor's illegal subcontracting or illegal subcontracting of construction projects or the act of an unqualified actual builder signing a construction contract with others in the name of a qualified construction enterprise is invalid. The people's court may, in accordance with the provisions of Article 134 of the General Principles of the Civil Law, confiscate the illegal gains already obtained by the parties. Although the judgment did not directly collect the management fee agreed in the contract, it rejected the claim to pay the management fee on the grounds of lack of legal and factual basis. Another example is (2020) Supreme Law Civil Final No. 1008 that: the management fee agreed in the invalid contract the people's court should be forced to judge the amount. (2019) Supreme Law Civil Final No. 1752 holds that the management fee agreed in the invalid contract is the consideration exchanged between the two parties based on the qualification of the construction of the project, which does not meet the constituent elements of unjust enrichment. The above judgment point of view can be summarized as follows: the management fee in the invalid contract violates the mandatory provisions of the law, belongs to the illegal income, and does not belong to the scope of adjustment of the civil law. The attitude of the civil law is to let the "illegal expenses stay in place", which should be adjusted by the public law and should be collected or transferred to the administrative department. The claim for payment of management fees or the claim for return after payment is not supported. (II) the contract is invalid, the management fee agreed in the contract has no factual basis and should not be supported; For example, the Supreme Law Minzhong No. 576 held that the relationship between Huang Jianguo and Dongfang Company was a borrowing of qualifications, but the borrowing of qualifications in the field of construction projects violated the mandatory provisions of the law. The management fee agreed upon by both parties is actually the consideration paid by Huang Jianguo for borrowing the qualification. Dongfang Company's request to Huang Jianguo to pay the management fee according to 1.2 of the project price involved in the case lacks legal basis, and the court will not support it. Another example is (2020) Supreme People's Court No. 898: The Supreme People's Court held that Baye Company and Baye Xining Branch are professional construction enterprises, and there is obvious fault in subcontracting the project involved to individuals without corresponding construction qualifications. The Agreement signed by Baye Xining Branch and Li Mouchu is an invalid contract, and it cannot prove that it actually participated in the relevant management of project construction, its appeal request lacks basis and is not supported. When the (III) construction project is completed and accepted, the management fee shall be part of the construction project price, and although the contract is invalid, the project price shall still be paid (compensation) according to the contract agreement. For example, (2020) Supreme People's Court No. 860: The Supreme People's Court held that according to the agreement of the Subcontract signed between the military construction company and the basic company, the basic company is required to pay the management fee to the military construction company in accordance with a certain proportion of the project price, of which 2% is for small and high-rise buildings and 3% is for multi-storey buildings. Although the "subcontract" is invalid, the military construction company cooperates with the basic company in the allocation and settlement of funds and construction materials with the contractor, material suppliers, labor service units and other parties during the construction process, and arranges staff to participate in the on-site management of the project involved in the case. it is not improper to require the basic company to pay the management fee according to the original agreement, and the first instance judgment supports it. (IV), if the subcontractor participates in the project management of the actual construction person and pays a certain cost, instead of the subcontractor simply subcontracting for profit, it can be dealt with according to the contract agreement. For example (2021) Supreme Famin Shen No. 3986: The Supreme People's Court believes that the "Internal Contract Construction Agreement for Single Project" involved in the case stipulates that "Jiangsu Shuanglou Company shall charge 4.6% of the total settlement price of the project completed by Nanjing Jiuhuan Company (including the purchasing materials of the construction unit and Jiangsu Shuanglou Company) as the general contractor management fee". Therefore, Nanjing Jiuhuan Company is aware of the agreement between the two parties on the management fee, based on the invalidity of the "Internal Contract Construction Agreement for Single Project" involved in the case and the fact that Jiangsu Shuanglou Company has carried out corresponding management, the court of second instance decided that it was not obviously inappropriate for Nanjing Jiuhuan Company to bear 50% of the management fee involved in the case. Another example is (2020) Supreme People's Court No. 79: The Supreme People's Court held that regarding whether Jiang Junpeng should charge management fees and the proportion of management fees, Jiang Junpeng provided evidence to prove that he employed management personnel, organized meetings, coordinated up and down, and purchased insurance for the construction of the project involved in the case. Jiang Junpeng fulfilled his management obligations for the project involved in the case, and the court of first instance ruled that Wang Baozhen paid him a certain management fees, which was not inappropriate. Because Jiang Junpeng does not have the qualifications for construction and management of construction projects, the court of first instance held that the standard of 7% of the project cost charged by Jiang Junpeng in the internal contract was too high, and decided to reduce the management rate to 2%, which was not improper, and the court maintained it. 3. Supreme Court Judges Meeting Minutes View The minutes of the 7th Judges Meeting of the Second Circuit Court of the Supreme People's Court in 2020 offer three views on the treatment of agreed management fees after the invalidation of construction contracts (the following views are derived from the Minutes of the Judges Meeting of the Second Circuit Court of the Supreme People's Court (second series), published by the People's Court Press in April 2021): (I) said with reference to the contract When the construction project is completed and accepted, although the construction contract is invalid, the project price should still be paid by reference to the contract, and the "management fee" is an integral part of the construction project price, so it should be dealt with by reference to the agreement. If the subcontractor claims "management fee" to the actual builder, it shall be supported; if the actual builder requests the return of "management fee", it shall not be supported. (II) invalid return said The "management fee" stipulated in the contract under the circumstances of the title is illegal, and the relevant provisions in the contract are invalid, and the treatment of the invalid contract should be referred. If the subcontractor claims that the "management fee" should be deducted from the project price paid, it shall not be supported; if the actual builder claims to return the management fee "or the project price does not deduct the" management fee ", it shall be supported. (III) actual participation in management said In the case of the contract, the "management fee" is part of the price of the construction project, and some is the subcontracting profit of the subcontractor. For the former, if it is found that the subcontractor is actually involved in the construction management service, it can be dealt with by reference to the contract; for the latter, there is no question of returning the input at a discount because the subcontractor has not managed or actually paid. In the distribution of the consequences of the invalidity of the contract, the principle of good faith should be followed, and the parties who are not in good faith should not benefit from the invalidity of the contract. The judge's meeting took the actual participation in the management said: when the construction contract of the construction project is invalid due to illegal subcontracting, illegal subcontracting or affiliation, the treatment of the "management fee" charged by the subcontractor as agreed in the contract shall be judged according to the specific purpose of the contract in the light of the case. If the "management fee" is part of the project price, and the subcontractor also actually participates in the construction organization management coordination, can refer to the contract agreement to deal with; for the subcontractor purely through subcontracting for profit, did not actually participate in the construction organization management coordination, after the contract is invalid to claim "management fee", should not be supported. The parties to the contract shall not support the adjustment of the project price on the ground that the "management fee" as the contract price should be collected. Based on the relativity of the contract, non-contract parties cannot claim to adjust the amount of work to be paid by the agreement between the subcontractor and the subcontractor on the "management fee. 4. legal analysis In accordance with the provisions of laws, administrative regulations and judicial interpretations, the following legal analysis is carried out on whether the subcontractor can claim to pay the management fee to the actual builder, taking into account the rules of adjudication of cases in judicial practice and the opinion of the minutes of the meeting of judges of the Supreme Court: (I) in the case of fact-finding, the management fee agreed in the invalid contract is not an illegal gain. First of all, the meaning of "illegal act" in civil law is only a factual act (corresponding to legal act), "collection" or "transfer to the administrative department to deal with" belongs to the form of responsibility in public law, the fact of civil law can not be concluded in civil litigation to bear the responsibility of public law. The management fee in an invalid contract is an illegal income and should be collected. This view mostly stems from the provisions of Article 4 of the interpretation of the Supreme People's Court on the application of legal issues in the trial of disputes over construction contracts of construction projects (no longer valid): "the people's court may, in accordance with Article 134 of the General principles of the Civil Law, confiscate the illegal gains that the parties have obtained." The (I) of the Supreme People's Court on the Interpretation of Legal Issues Applicable to the Trial of Construction Contract Disputes, which came into effect in 2021, has abolished the above-mentioned provisions, the General Principles of Civil Law have become invalid, and there is no longer any expression in the Civil Code to collect illegal income. "Illegal income", "collection" and "transfer to administrative departments for handling" should fall within the scope of administrative law enforcement and should not be identified and enforced in civil disputes. The tasks of public law and private law are different, and the relationship of rights and obligations between equal subjects to be resolved by civil legal norms, for one of the subjects of civil litigation, the most unfavorable consequence for it is that its claim is not supported, and should not be borne by the way of public law liability. Secondly, subcontracting, illegal subcontracting and affiliation are illegal in public law, which is the need to maintain market order; in the field of private law, as a factual act, the purpose of litigation is to solve the problem of distribution of rights and interests among civil subjects, not to identify illegal gains. Even when the judicial interpretation stipulates that the illegal proceeds should be collected, few courts or administrative organs will collect them. Even if they decide to collect them, there is no enforcement procedure. The reason is that the purpose of legislation is to suppress illegal acts through the form of public law liability of "collection", but it ignores the boundary between public and private law, and finally distributes the management fees agreed in the invalid contract between the two parties to the contract for various reasons. Just as the construction contract for a construction project is invalid, but the actual builder can be compensated at a discount by reference to the contract actually performed on the price of the project. The actual builder has materialized the various costs into the construction project, and in accordance with the law, the treatment of invalid contracts should be "returned separately" in principle, but in the case of no return, compensation can only be made by reference to the contract. The field of construction engineering has its particularity. Even if there are public law violations such as subcontracting, illegal subcontracting, and affiliation, the cost of restoration cannot be restored to the original state or the cost of restoration is high when the project is completed and accepted. The project benefits are distributed among the cost payers, rather than the management fees agreed in the invalid contract as illegal gains. (II), in terms of the application of the law, the amount or proportion of the management fee shall be determined comprehensively according to the degree of participation and cost of the subcontractor in the construction process, with reference to the contract or the actual contractor's benefits. In the event that the contract is invalid, the key to determining whether the subcontractor can take the management fee is whether it actually participates in the management of the project, the degree of participation and the cost input. A combination of the facts of the case should be distinguished to determine whether the claim of management fee should be supported, which can be divided into the following three situations: First, the subcontractor actually participated in the management of the construction process such as project progress, safe and civilized construction, project quality, acceptance, etc., invested human resources, and incurred corresponding management costs. The cost is the "enterprise management fee" stipulated in the "Construction and Installation Project Cost Project Composition", which specifically includes management personnel wages, office expenses, travel and transportation expenses, fixed asset usage fees, tool usage fees, labor insurance and Employee welfare expenses, labor protection expenses, inspection and test expenses, labor union expenses, employee education expenses, property insurance expenses, financial expenses, taxes and others. The above-mentioned expenses together with the expenses such as "human resources machine" constitute the total cost of the construction project. According to the provisions of judicial interpretation, if the quality of the construction project is qualified, it shall be compensated at a discount according to the contract. Reference to the contractual agreement does not mean that the amount or proportion agreed upon in the invalid contract is the standard, but that the value of the results of labor materialized into the project is compared with the amount of the management fee agreed upon in the contract, and the referee adjusts and comprehensively determines the specific amount or proportion of the management fee according to the facts. Second, the subcontractor advocates that the management fee is not the enterprise management fee in the above-mentioned normative sense, but the external cost borne on behalf of the actual construction person. For example, during the construction process, fines due to the violations of the actual construction personnel, compensation for casualties due to safety accidents, and legal liabilities due to external disputes due to infringement. The subcontractor and the actual builder can agree on the sharing of the above-mentioned responsibilities, but there is a subcontractor in the external legal relationship and then unified management.

2022-03-09

Mineral Legal Perspective | Lawyer's Perspective Concerned about the Ecological Restoration of Mines in Shandong Province

In order to standardize the ecological restoration work of mines and improve the ecological restoration capacity of land and space, the Department of natural resources of Shandong Province, the development and Reform Commission of Shandong Province, the Department of finance of Shandong Province, the Department of ecological environment of Shandong Province, the Department of water resources of Shandong Province, the Department of agriculture and rural areas of Shandong Province, the Department of emergency response of Shandong Province and the Energy Bureau of Shandong Province have studied and formulated the implementation management measures for mine ecological restoration, now let us learn about the ecological restoration of mines in Shandong Province, which are worthy of attention: 1. what is mine ecological restoration? Mine ecological restoration refers to the ecological restoration of historical mines and production mines. According to the principle of balanced population, resources and environment, and unified economic, social and ecological benefits, systematic restoration and comprehensive management are implemented on the basis of scientific evaluation, so as to promote the comprehensive utilization and protection of various natural resources, and realize the optimization and improvement of production, life and ecological functions. A mine left over from history is a mine where it is not possible to determine the person responsible for the repair or the person responsible for the loss due to the loss of mining rights or policy closure. Production mines refer to mines in which mining enterprises have obtained mining rights in accordance with the law and are implementing infrastructure construction or organizing production. 2. mine ecological restoration should meet what requirements? Mine ecological restoration activities shall meet the requirements: (1) to conform to the territorial space planning; (2) to comply with the land space ecological restoration planning and related special planning; (3) To meet the requirements of "three lines and one order" ecological environment zoning control; (4) in strict accordance with the green mine construction norms; (5) To comply with the technical requirements and standards for ecological restoration. Principles to be Followed in Ecological Restoration of 3. Mines (I) ecological priority, security. Adhere to the policy of giving priority to ecology, conservation, protection and natural restoration, taking into account ecological, social and economic benefits. In accordance with the order of ensuring safety, restoring ecology, and taking into account the landscape, overall protection, system restoration, and comprehensive management will improve the quality and stability of the ecosystem. (II) highlight the key points and promote as a whole. Coordinate the current situation of mine land space, the suitability of future land space and the needs of industrial development, and simultaneously promote the ecological restoration of historical mines and production mines. Priority should be given to solving the outstanding problems in the ecological restoration of historical mines within the visual scope of the "three districts and two lines", such as many historical debts, large potential safety hazards, poor landscape image, and single source of funds. (III) government-led, market-operated. Give full play to the leading role of the government, strengthen policy guidance and incentives, and stimulate the vitality of market players. According to the principle of "who invests, who benefits" and "who destroys, who repairs", social capital is encouraged to participate in mine ecological restoration and management by means of marketization. According to the "Opinions of the General Office of the State Council on Encouraging and Supporting Social Capital to Participate in Ecological Protection and Restoration" (No. 40 [2021] of the State Council) issued by the General Office of the State Council, it is also to encourage and support social capital to participate in ecological protection and restoration projects. The ways of participation include: 1. independent investment mode. Social capital alone or in the form of consortia, industrial alliances and other forms of funding to carry out ecological protection and restoration. 2. Mode of cooperation with the government. Social capital may set up funds in accordance with the principle of marketization to invest in ecological protection and restoration projects. For projects with stable operating income, models such as government and social capital cooperation (PPP) can be adopted, and local governments can support social capital to obtain reasonable returns through investment subsidies, operating subsidies, and capital injections as required. 3. Public participation model. Encourage public welfare organizations and individuals to cooperate with the government and its departments to participate in ecological protection and restoration and jointly build ecological civilization. (IV) according to local conditions, precise policy. Implement the requirements of land and space planning control and use control, accurately grasp the characteristics of mines and surrounding environment, combine local economic and social development, resource endowment, ecological environment, etc., based on the integrity of the ecosystem, through conservation and protection, natural restoration, auxiliary restoration, and ecological remodeling, Resource development and other methods, adjust and optimize the layout, structure and function of land space, and promote the improvement of natural recovery capabilities. 4. which subjects can participate in mine ecological restoration? (1) Government functional departments All levels of development and reform, public security, finance, natural resources, ecological environment, water conservancy, agriculture and rural areas, emergency management and other departments in accordance with their respective responsibilities, coordinated to promote the ecological restoration of mines. (2) Government financing platforms and social capital Encourage government investment and financing platforms to cooperate with social capital to participate in mine ecological restoration activities. (3) Mining enterprises and social investment entities Support mining enterprises and social investment entities to use market-oriented methods to obtain foreign government low-interest loans, bank green financial loans, government guidance funds and other funds to carry out mine ecological restoration within the scope of laws, regulations and financial policies. What is the investigation of the ecological status of 5. mines? 1. The competent department of natural resources at the county level shall make use of the results of the geological environment survey of mines, combined with the results of the third land survey, the annual land change survey and the registration and certification of land rights, to organize the investigation of the ecological status of mines left over from history and production mines in the area under its jurisdiction. 2. The investigation of mine ecological status mainly includes:(1) the basic situation of the mine. Geographical location, regional area, current land type, land ownership, ore type, remaining resources, residual soil and stone, etc. of the mine. (2) mine ecological situation. The current situation of topography and landscape, the development and utilization of natural resources such as land, minerals, forest and grass, and the damage of resources such as land, forest and grass vegetation. (3) Other contents stipulated by the state and the province. 3. According to the survey results of the mine ecological status, the county-level natural resources department shall establish a background account, incorporate it into the ecological restoration management information system, and update it in real time. What are the responsibilities of 6. mining enterprises for the ecological restoration of production mines? In addition to the overall plan for mine ecological restoration formulated by the competent department of natural resources for mine geological environment investigation, there are relevant regulations for the ecological restoration of historical mines and the ecological restoration of production mines. This paper focuses on the ecological restoration of production mines: 1. Ecological restoration of new mines Mining enterprises in newly-built mines should take into account the ecological conditions around the mine, natural landscape, living environment, village location, industrial layout and other factors, combined with the actual needs of safe production and ecological restoration and landscape reconstruction in the later period of the mine, scientifically and rationally formulate development and utilization plans, mine geological environment protection and land reclamation plans. The preparation of mine geological environment protection and land reclamation plan shall comply with relevant national laws and regulations, the overall mine ecological restoration plan and other relevant requirements. 2. Abandoned mines with mining conditions For the abandoned mines formed in history, which cannot implement ecological restoration measures due to high and steep slopes, deep pits and other reasons, and still have mining conditions, under the premise of conforming to the planning and conducive to the improvement of the ecological environment, it is necessary to re-set mining rights in accordance with relevant regulations. After slope treatment, if it meets the requirements of ecological restoration conditions, in addition to the preparation of mine geological environment protection and land reclamation plans, formulate an annual mining and mine geological environment restoration and governance plan, clarify the annual mining area, mining volume, governance measures, governance scope, governance effect, etc., and report to the county-level natural resources authority for approval. The competent departments of natural resources at the county level should strengthen supervision, and those who fail to implement the plan should be ordered to make rectification within a time limit, and the implementation can continue only after the rectification is in place. 3, mining enterprises should implement the "side mining, side management, side repair" principle. Mining enterprises should strictly implement the mine geological environment protection and land reclamation plan, strictly implement the green mine construction standards, and strictly perform the mine geological environment protection and land reclamation obligations in accordance with the principle of "mining, governance, and restoration" to ensure ecological restoration Work is carried out simultaneously with mineral resources mining activities. During the process of restoration and leveling, dust pollution shall be well controlled to ensure that there is no obvious visible dust in the mining area. If the mining right owner temporarily stops production, he shall take necessary measures to reduce the disturbance to the ecosystem. 4, mining enterprises "closed before the pit" must complete the task of repair The mining right owner shall, in accordance with the overall deployment of the mine geological environment protection and land reclamation plan and the annual mine ecological restoration plan, carry out the mine ecological restoration work, set aside the mine geological environment management and restoration fund, and carry out the mine ecological protection and restoration work year by year. When the mine is closed, the ecological protection and restoration task of the whole mine must be completed. If the mine is closed or closed before the expiration of the mining right transfer period, the mining right owner shall comprehensively carry out the ecological restoration of the mine. Among them, for mines closed due to policy, the people's government at the county level should clarify the main body of responsibility for mine ecological protection and restoration and determine the time limit for governance. If the ecological restoration responsibility is still performed by the original enterprise, the natural resources department at the county level where the mine is located shall supervise the original enterprise to complete the restoration task on schedule and carry out acceptance in accordance with relevant regulations. When providing legal services for mining enterprises, lawyers should focus on the ecological restoration of production mines to prompt mining enterprises to pay attention to avoid legal risks in the ecological restoration of production mines and bear legal responsibilities.

2022-03-07

Viewpoint... The nature of overdue interest in financial lease contracts and the analysis of judicial application rules.

Foreword In a financial lease contract, for the sake of safeguarding the performance of the contract and safeguarding its own interests, the lessor, in addition to establishing a performance bond clause in the contract, usually agrees that the lessee shall bear the obligation to pay overdue interest and/or liquidated damages in the event of a breach of contract, such as late payment of rent. The lessee should pay the corresponding overdue interest when defaulting is not too controversial, but how to determine the nature of the overdue interest, overdue interest and liquidated damages jointly claimed the interest rate ceiling standard, the current theory and judicial practice are controversial. Determination of the Nature of Overdue Interest in 1. Financial Leasing Contracts Regarding the nature of overdue interest in financial lease contracts, there are mainly two theories in academic circles-"the calculation method of damages" and "the theory of liquidated damages". The "theory of calculation method of damages" is based on a clear distinction between agreed damages and agreed liquidated damages, and holds that the two cannot be confused. The theory holds that agreed damages need to be based on the occurrence of losses. In addition, some scholars in this theory believe that if the parties to a financial lease contract agree on overdue interest and overdue payment liquidated damages at the same time, the adjudication body should inform the parties to make a choice. The "liquidated damages" is that the liquidated damages clause and the calculation clause of damages are often difficult to distinguish in practice, and the overdue interest calculation clause can be characterized as the liquidated damages clause to obtain the opportunity of judicial adjustment, which is more conducive to balancing the interests of both parties, so there is no need to distinguish. By searching the relevant cases, it can be found that judicial practice is more inclined to "liquidated damages", that is, the court usually determines the overdue interest clause as the nature of liquidated damages, and according to the actual situation of the case, with reference to a certain interest rate standard to the parties to claim the overdue interest, liquidated damages unified adjustment. Although there are disputes on the nature of overdue interest in financial leasing contracts in academic circles and judicial practice, according to Article 9 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Financial Leasing Contract Disputes (hereinafter referred to as the Judicial Interpretation of Financial Leasing), "The lessee is late in fulfilling the obligation to pay rent or other payment obligations, and the lessor requires the lessee to pay overdue interest and corresponding liquidated damages in accordance with the agreement of the financial leasing contract, the people's court shall support the provision that, regardless of the nature of the overdue interest in the financial lease contract, in the event of a breach of contract such as late payment of rent by the lessee, the lessor shall have the right to claim both overdue interest and liquidated damages in accordance with the contract. The judicial applicable rules of overdue interest in 2. financial lease contracts. As mentioned above, with regard to the application of overdue interest in financial leasing contracts, the judicial interpretation of financial leasing clearly stipulates that overdue interest can be claimed at the same time as liquidated damages, but the upper limit and applicable standards of overdue interest and liquidated damages are not clearly stipulated in the relevant laws and regulations of our country, so there are different understandings in judicial practice, and the court's judgments are also different (take the following three judgments as examples). [Case 1]:(2021) Supreme People's Court No. 458 The court of first instance held that: regarding the delayed interest, according to Article 19.1 of the Financial Lease Contract, if Jiuda Salt Making Company fails to pay the rent and other payables to Wanjiang Leasing Company as agreed in this contract, Jiuda Salt Making Company shall pay the delayed interest to Wanjiang Leasing Company at 5/10000 per day on the overdue amount from the payment date, and the interest agreement does not violate the legal provisions, based on this, Wanjiang Leasing Company argued that Jiu Da Salt Company should pay the delayed interest to be supported by the court of first instance. The court of second instance held that Article 19.1 of the "Financial Leasing Contract" signed by Jiu Da Salt Company and Wanjiang Leasing Company stipulated that from the content, the two parties clearly agreed in this article as "deferred interest". The essence of the delayed interest is the overdue interest that the lessee shall pay to the lessor in respect of the overdue rent if the lessee fails to pay the rent within the prescribed time limit. According to the Interpretation of the Supreme People's Court on the Legal Issues Applicable to the Trial of Financial Lease Contracts (Fa Shi [2014] No. 3), Article 20 stipulates that "if the lessee fails to pay rent or delays in other payment obligations, and the lessor requires the lessee to pay overdue interest and corresponding liquidated damages in accordance with the provisions of the financial lease contract, the people's court shall support it". Overdue interest and liquidated damages are not equivalent, therefore, the claim that the delay interest agreed by the two parties is the liquidated damages cannot be established. Jiu Da Salt Company claims that the two sides agreed to the five-tenths-of-a-day delay interest calculation standard is too high, the delay interest is too high than the actual losses suffered by Wanjiang Leasing Company, but the five-tenths-of-a-day can be converted into an annual interest rate of about 18%, even with reference to the relevant judicial interpretation of private lending, it does not exceed the legal limit. On the other hand, Jiuda Salt Company argued that the delayed interest was excessively higher than the actual loss, but did not submit evidence to prove the amount of the actual loss and how it was "excessively higher", so its claim could not be established. [Case 2]:(2021) Beijing Financial Court, No. 689, Beijing 74 Min Zhong The court of first instance held that with regard to liquidated damages, the contract agreed liquidated damages = 3% of the remaining lease principal, and the current lessee constituted a breach of contract. China Construction Investment Company's request to pay liquidated damages of 72335.99 yuan was in line with the contract and legal provisions, and the court supported it. For overdue interest, considering that China Construction Investment Company has already collected the lease interest during the financing period according to the annual interest rate of 5.7, and then calculated the liquidated damages based on the total rent, that is, compound interest is charged for the interest. The standard is too high, and both liquidated damages and interest are liable for breach of contract in nature. Considering the relevant circumstances, our hospital adjusted the interest item to take the 12th rental principal of 2411199.75 yuan as the base, according to the standard of 5/10000, calculated from January 29, 2021 to the date of actual liquidation. The court of second instance held that: first of all, this case is a dispute over a financial lease contract, not a dispute over private lending, and this case should not be adjusted by the provisions of the Supreme people's Court on several issues concerning the Application of Law in the trial of Private Lending cases, which stipulates that the interest rate agreed in the contract exceeds four times the quoted interest rate in the one-year loan market at the time of the establishment of the contract. Secondly, the existing laws and regulations do not explicitly limit the interest rate ceiling of the financial lease contract. Even if the interest rate ceiling agreed in the financial lease contract should refer to the standard of four times the quoted interest rate of the one-year loan market or 24% of the annual interest rate, the ceiling should be the interest rate of the comprehensive capital cost of the capital user during the period of full capital use. In this case, the overdue interest stipulated in the contract has the nature of liquidated damages, the overdue interest is calculated on the basis of unpaid rent and the period of overdue payment is the calculation period, and the calculation standard of overdue interest is not decisive for measuring whether the interest rate of the comprehensive cost of capital is too high. The court of first instance has lowered the contractual overdue interest calculation base and interest rate, respectively, as appropriate. The Court held that although Hengtong Juice Company believed that the calculation standard of overdue interest was still too high, the legal basis for its claim to continue to adjust overdue interest was insufficient, and the adjustment of the calculation method of overdue interest by the court of first instance had made the amount of overdue interest within a reasonable range and should be maintained. [Case 3]:(2021) Lu 01 Min Zhong No. 8766, Jinan Intermediate People's Court, Shandong Province The court of first instance held that with regard to Huitong Company's request for Pan Zhongren's liquidated damages, according to Article 20 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Disputes over Financial Lease Contracts, the people's court shall support the provision that "if the lessee fails to pay rent or delays in other payment obligations, and the lessor requires the lessee to pay overdue interest and corresponding liquidated damages in accordance with the provisions of the financial lease contract, although Huitong Company may require Pan Zhongren to pay overdue interest and liquidated damages at the same time, the sum of the overdue interest and liquidated damages requested by Huitong Company shall not exceed the overdue interest calculated at the annual interest rate of 24% based on the outstanding rent due. Huitong Company now advocates a liquidated damages calculated at 4 times the quoted market interest rate, which is supported by the court of first instance. The court of second instance held that the question of whether the sum of liquidated damages and delayed performance should be capped should be limited. Financial leasing is a typical financing method with financial attributes. Financial leasing companies are under the supervision of the China Banking and Insurance Regulatory Commission. According to the requirements of my country's financial services to the real economy and reducing the financing costs of the real economy, the lease rate of return should be limited by the upper limit of the financial lending interest rate. Based on the total amount of financing, the total amount of rent, liquidated damages and delayed performance payments cannot exceed 24% of the annual interest rate. Due to the lack of clear legal provisions, the measurement standards of different regional courts are not completely uniform on the issue of the upper limit of the sum of overdue interest and liquidated damages. The Reply of the Supreme People's Court on the Scope of Application of the Judicial Interpretation of New Private Lending specifies that the disputes caused by financial leasing companies engaged in relevant financial businesses are not applicable to the judicial interpretation of new private lending. However, judging from the retrieved cases, in judicial practice, the court tends to take the annual interest rate of 24% as the upper limit to determine whether the sum of overdue interest and liquidated damages is reasonable or to reduce or adjust it at 24%, some other courts determine the interest rate cap by considering the financial lease contract and performance. 3. Summary At present, there are still different views on the nature of overdue interest in judicial practice. Some people think that overdue interest has the nature of "damages", and the "damages" should be based on the occurrence of losses and should not be excessively higher than the actual losses. Tracing the origin of such different views, it is not difficult to find that most of them are due to different understandings of the content of the contract itself, and there is a dispute over whether the overdue interest is "the purpose of punishing the breach of contract" or "the purpose of filling the loss. In view of this, it is suggested that in the agreement of the corresponding provisions of the financial lease contract, the expression of this part should not be simply summarized as "if the loss caused by the breach of contract, the payment of interest...", but should be as detailed as possible the purpose and application of the establishment of the "deferred interest. For example, the statement in Case 1 "If Jiuda Salt Company fails to pay rent and other payables to Wanjiang Leasing Company as agreed in this contract, Jiuda Salt Company shall pay deferred interest to Wanjiang Leasing Company on the overdue amount of 5/10000 per day from the date of payment". In addition, since the existing laws and regulations do not explicitly limit the upper limit of interest rate of financial leasing contracts, the theoretical and practical disputes of "adjustment is not adjusted and how to adjust" have arisen. Whether the principle of discretionary reduction of liquidated damages can be applied when overdue interest and liquidated damages are filed together, and how to make discretionary adjustment, the considerations during adjustment, whether the discretionary adjustment conforms to the original intention of relevant legislation and the principle of fairness, etc, at this stage, it is still a problem that needs to be explored in judicial practice, and it is still necessary to pass legislative provisions or unify the judgment standards to clarify the specific applicable rules.

2022-03-04

Mineral legal perspective | Lawyers focus on the issue of "net ore" transfer in Shandong Province

On May 1, 2020, the Ministry of Natural Resources issued the Opinions on Several Matters Concerning the Reform of Mineral Resources Management (Trial) (Natural Resources Regulation No. 2019) (hereinafter referred to as the "Opinions"). In order to guide the "net ore" transfer of mineral resources in Shandong Province and clarify the working procedures of "net ore" transfer, in accordance with the relevant provisions such as the opinions of the Ministry of Natural Resources on promoting the Reform of Mineral Resources Management (for trial implementation) and the Circular of Shandong Provincial Department of Natural Resources on promoting the Reform of Mineral Resources Management, combined with the actual situation of Shandong Province, Shandong Provincial Department of Natural Resources on December 9, 2021, formulate the "Guiding Opinions on the Transfer of" Net Mines "in Shandong Province (Trial)", now let us understand the situation of the transfer of "net mines" in Shandong Province: What are the conditions for the transfer of "net ore" in Shandong Province in 1? According to the "Guiding Opinions on the Transfer of" Net Mines "in Shandong Province (Trial)" and other relevant policies and regulations, the conditions for the transfer of "net mines" in Shandong Province are: (I) conform to the territorial space planning; (II) in accordance with mineral resources planning; (III) in line with the relevant national and provincial industrial policies and the needs of economic and social development; The scope of (IV) transfer meets the requirements of land use, forest use and sea use; (V) mining rights to transfer the boundaries of the scope of accurate, clear ownership of mineral resources assets, no dispute; (VI) mining minerals meet the requirements of differentiated management of mining rights; The proceeds from the transfer of (VII) mining rights have been assessed; The geological reserves within the scope of (VIII) transfer have been identified, and the technical data required for the preparation of plans for the development and utilization of mineral resources, geological environment protection and land reclamation have been completed; Compensation for the land and its above-ground attachments, power facilities, roads and historical assets within the scope of (IX) transfer has been negotiated and disposed of in place; After the transfer of the (X) mining right, the transferee shall go through the registration of the mining right in accordance with the regulations. If it involves temporary occupation or permanent use of the land, it shall go through the examination and approval procedures in accordance with the law. After the relevant work is completed, it can enter the site to carry out the relevant infrastructure preparation work without affecting the mining activities; (11) Other circumstances that meet the conditions for the transfer of "net ore. What are the steps to 2. the "net mine" transfer? According to the "Guiding Opinions on the Transfer of" Net Mines "in Shandong Province (Trial)" and other relevant policies and regulations, the transfer of "net mines" in Shandong Province generally has the following steps: (I) work plan for assignment According to the transfer conditions, planning blocks and preliminary preparations determined by the mineral resources plan, the county-level natural resources department organizes relevant business departments to study and determine the scope of the mining area to be transferred, and solicit the ecological environment, transportation, water conservancy, forestry, emergency And other departments and the township government (sub-district office) where the transfer scope is located, formulate a "net mine" transfer work plan, and organize the implementation after being approved by the county-level people's government. Among them, the municipal "net ore" transfer work plan shall be studied, determined and implemented by the municipal department in charge of natural resources. Provincial "net mine" transfer work, the implementation of the "Shandong Provincial Department of Natural Resources Mining Rights Transfer Work Flow" provisions. (II) Site Survey In accordance with the "net ore" transfer work plan, the county-level natural resources department organizes relevant departments and the township (street) and villagers' representatives where the mining area is located to inspect the site, issue a survey report, and sign written opinions. The transfer of "net ore" at the provincial and municipal levels shall be carried out in conjunction with the competent departments of natural resources at the county level, and a site survey report shall be prepared. The main contents of the survey report include: 1. The scope of transfer; 2. The status of resources; 3. The setting of mining rights; 4. The status quo of land use, original facilities, roads, etc.; 5. Find out the location, land type, ownership and other conditions of the land and the attachments on the ground; 6. Verify the overlap of various protection areas such as ecological protection red lines, permanent basic farmland, urban development boundaries, nature reserves, drinking water source protection areas, national public welfare forests, and protection areas of immovable cultural relics. 7. Other situations that need to be explained. (III) Disposal Compensation Scheme In accordance with the clear division of responsibilities in the "net mine" transfer work plan, confirm with local rural collective economic organizations, farmers, and property owners of above-ground attachments, draw up a disposal compensation plan, and sign a compensation agreement after the mine location has been publicized without objection. Public transfer of (IV) organizations Through the public resources trading platform at or above the county level to the public transfer. The announcement of the transfer shall comply with the provisions of laws and regulations and shall not set exclusive conditions. (V) sign the contract of assignment The bidder shall sign the confirmation of the transaction as required within 3 working days after the end of the transaction. Within 5 working days after signing the transaction confirmation letter, the transferor shall publicize the transaction result to the public according to the release channel of the transfer announcement, and the publicity period shall not be less than 10 working days. The transfer contract can only be signed after the publicity has no objection. To sum up, Shandong Province clearly requires the improvement of land use procedures in accordance with laws and regulations in the "net mine" transfer work. If the conditions are met, the simultaneous handling of mining rights and construction land use rights can be explored. The transfer of mining rights still emphasizes the promotion of competitive transfer of mining rights, simplifying the approval procedures for mining rights, strengthening supervision and management during and after the event, and ensuring that the management of mineral resources is in place.

2022-03-01

Civil and commercial perspective... Can marriage property be returned?

Marriage Property Overview Marriage property generally refers to both men and women in love during the property. The property involved mainly includes voluntary gifts (including gifts from close relatives) and bride price. Voluntary gifts of property are generally recognized as gifts if they do not exceed the scope of daily interactions. When the relationship is terminated, the donor's request for return is generally not supported. If the parties request the return of the bride price paid in accordance with the custom, whether the return can not be generalized, but should be analyzed according to the specific situation. First of all, the property that one party voluntarily gives (including close relatives) to the other party is generally not returned. For the property that one party voluntarily gives to the other party during the love period and does not exceed the scope of daily communication, in the absence of evidence to the contrary, it will generally be regarded as a gift for the purpose of promoting feelings. According to article 657 of the the People's Republic of China Civil Code, "a gift contract is a contract in which the donor gives his property to the donee free of charge, and the donee expresses his acceptance of the gift. If one party sues to ask the other party to return the donated property, the court will comprehensively consider the love relationship between the two parties, the size of the amount of property, human relations and other factors, presuming whether it is a gift, so as to deal with it in accordance with the relevant laws. If the gift during the love period is for the purpose of promoting the relationship, rather than for the purpose of concluding a marriage, if the party requests to revoke the gift and exercise the right of arbitrary revocation, the court will generally not revoke it if there is no legal right of revocation. Secondly, the question of whether the dowry paid in accordance with custom should be returned. In the case of bride price, which, according to custom, is paid for the purpose of concluding a marriage, is specifically provided for in the judicial interpretation of the the People's Republic of China Civil Code on marriage and family, which is now analyzed in the light of trial practice as follows: 1. If both men and women have not gone through the marriage registration procedures, and one party requests the return of the bride price, the people's court shall support it. 2. If the two parties go through the marriage registration procedures but do not live together, if one party requests the return of the bride price, the people's court shall support it. 3. If one party requests the return of the bride price if the payment before marriage causes difficulties in life, the people's court shall support it. 4. For those who have not gone through the marriage registration formalities but have lived together and given birth to children, it is not necessary to return the bride price. Whether to return the bride price and how much should be returned should be judged according to the specific circumstances of the case. In the trial practice, the common living conditions of both parties should be considered as appropriate, and the return request should be partially supported or not supported. How to identify "living together" should be combined with local customs, the place where the two sides live, whether their daily life is integrated, whether they help each other economically, whether they comfort each other spiritually, and whether they have formed a legal relationship of mutual support. At the same time, the following factors will also be referred to:(1) the length of time the two parties have lived together;(2) the reasons for not registering the marriage;(3) the amount of the bride price;(4) the actual use of the bride price:(5) the woman's pregnancy and childbirth;(6) the impact of the public announcement effect of engagement or living together on the social evaluation of the two parties;(7) local customs;(8) Other common affairs of both parties. The author thinks When dealing with such disputes between men and women and their relatives, it is important to distinguish whether it is a gift of general property or a bride price. For the property paid for the promotion of feelings, if it does not exceed the scope of daily human relations, in the absence of evidence to the contrary, the donor shall generally not ask the other party to return it. For the bride price, it is necessary to determine whether to return it and the specific amount to be returned, taking into account the provisions of Article 5 of the Judicial Interpretation of the the People's Republic of China Civil Code on Marriage and Family and the actual local situation. Relevant Articles 1. Article 157 of the the People's Republic of China Civil Code stipulates: "After a civil legal act is invalid, revoked or determined not to be effective, the property acquired by the perpetrator as a result of the act shall be returned. The party at fault shall compensate the other party for the losses suffered as a result; if all parties are at fault, they shall bear the corresponding responsibility. Where the law provides otherwise, it shall be in accordance with its provisions." Article 158 of the the People's Republic of China Civil Code states: "Civil juristic acts may be subject to conditions, except where, by their nature, they may not be. A civil law act with conditions for entry into force shall take effect when the conditions are fulfilled. A civil juristic act with a condition of discharge shall cease to be valid when the condition is fulfilled. 2. Article 5 of the Interpretation I of Marriage and Family stipulates: "If the parties request the return of the dowry paid in accordance with the custom, the people's court shall support it if it is found that it belongs to the following circumstances: (1) the two parties have not gone through the marriage registration formalities; the (II) parties have gone through the marriage registration procedures but have not lived together; (III) pre-marital payment and causing difficulties for the payer.

2022-03-01

Civil and commercial perspective. Is it valid for the divorce agreement to give the house to the children?

Brief description of the case Zhang Ting and Li Jun want to divorce by agreement, and both parties want to agree in the divorce agreement to give the real estate jointly owned by the husband and wife to Li Zhe, the legitimate child. Because the property is a loan to buy, Zhang Ting voluntarily continue to repay the loan on a monthly basis. Zhang Ting Consulting: Is the agreement valid? Can it be revoked? If Li Jun does not cooperate with the transfer, how to remedy it? Lawyer Analysis The divorce agreement stipulates that the gift of the property to the children is valid. Since the property is the joint property of the husband and wife during the marriage, both parties have the right to agree in the divorce agreement to give the house to the legitimate child Li Zhe. In view of the fact that the house is a mortgage house, the mortgage loan will continue to be paid by Zhang Ting voluntarily on a monthly basis. When the house meets the transfer procedures, it is also feasible for both parties to assist Li Zhe in handling the registration procedures for the change of property rights of the house within a reasonable period of time. The content of the divorce agreement was written by one party in the marriage registration authority. Both parties have signed and agreed, and both parties did not coerce or cheat when signing the divorce agreement. The civil affairs authority reviewed the true meaning of the divorce agreement and filed it, and handled the divorce registration procedures for both parties. Therefore, the divorce agreement signed by both parties in the marriage registration authority regarding the gift of real estate to the legitimate child Li Zhe is legal and valid, and both parties shall perform according to the agreement. The couple cannot revoke the gift. First of all, the gift clause in the divorce agreement did not reach an agreement between the donor (Zhang Ting, Li Jun) and the donee (Li Zhe), and Li Zhe did not sign for confirmation, which is different from the gift in the traditional sense. Therefore, Zhang Ting and Li Jun do not enjoy the right of revocation. Secondly, the gift of real estate in the divorce agreement is not to the other party, but to the third party. It also includes the special relationship of dissolution of marriage. Therefore, it cannot be revoked. How to realize their rights if one or both parties fail to perform this agreement If one or both parties do not perform the agreement, Li Zhe can sue to the court to request both parties to assist in the transfer of the house involved in the case. The court usually supports the claim. Supreme Court Judicial Views In practice, sometimes after the signing of the divorce agreement, one party goes back on his word and refuses to deliver the gift house agreed in the divorce agreement. In this regard, the donor's reason is often to claim that the gift can be unconditionally revoked. This view of the donor is incorrect. The reason is that the agreement on the house gift in the divorce agreement does not constitute a gift contract in the general sense. The premise of the contract of gift is that the donor gives his property to the donee free of charge without requiring the donee to pay for it or assume any obligation. In practice, it is rare for the recipient to confirm the acceptance of the gift in the divorce agreement. In other words, the so-called gift in the divorce agreement does not reach an agreement between the donor and the donee and does not constitute a gift contract. Since it does not constitute a contract of gift, there is generally no possibility of the donor being revoked under the Civil Code. At the same time, the gift is an obligation that the giver promises to perform in exchange for the other party's consent to the divorce by agreement. The special feature of this obligation is that the donor's obligation to pay the house is not performed to the opposite party of the divorce agreement, but to the third party outside the contract as agreed. Since the prerequisite for divorce registration by the marriage registration authority is that both parties agree on the maintenance of children and the division of property, the party eager to divorce may make certain concessions on the division of property in the divorce agreement. The main obligation of both parties in this type of divorce agreement is that the opposite party cooperates with the divorcing party to handle the divorce by agreement, and both parties deliver the house to the third party as the giver. In the case where the opposite party has agreed to dissolve the marriage relationship with the requesting divorce party, the requesting divorce party as the donor shall also perform the obligation to pay the house as agreed. If the donor does not perform this obligation, the donee has the right to request the court to order him to perform the obligation to deliver the house. China is moving towards the rule of law, the signing and implementation of divorce agreements should implement the principle of good faith. For those parties who did not intend to implement the agreement when signing the agreement, especially those who used substantial concessions on the division of property in exchange for the other party to quickly agree to divorce, but went back on their word after achieving the purpose of divorce, and did not intend to seriously implement the agreement when the divorce agreement was signed, they must not be supported. Relevant Articles 1. Article 10176 of the the People's Republic of China Civil Code stipulates that if both husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration at the marriage registration authority in person. The divorce agreement shall state the intention of both parties to divorce voluntarily and the consensus opinions on matters such as child support, property and debt handling. 2. Paragraph 2 of Article 69 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code: The provisions on property and debt handling in the divorce agreement signed by the parties in accordance with Article 1076 of the Civil Code are legally binding on both men and women. If a lawsuit is brought by a party due to a dispute over the performance of the above-mentioned agreement after the divorce is registered, the people's court shall accept it. 3. Article 657 of the the People's Republic of China Civil Code: "A gift contract is a contract in which the donor gives his property to the donee free of charge, and the donee expresses his acceptance of the gift".

2022-02-24

Point of View... The (V) of the rules of the mortgage period.

4. interpretation of "no (to) support" and "no protection" Sort out the existing laws and regulations, from "support" as stated in the Interpretation of the Guarantee Law to "no protection" as stated in the Property Law to "support" as stated in the Minutes of the Meeting to "no protection" as stated in the Civil Code to "no support" as stated in the Interpretation of the Guarantee Law System ". In the author's opinion, the meaning of "not (to) support" and "not to protect" are not exactly the same, the former refers to the conclusion of not (to) support the mortgagee's claim; the latter, in addition to the meaning of "not (to) support", may also include the annihilation of the mortgage (the annihilation of the mortgage), the annihilation of the right of victory (the annihilation of the right of victory), the occurrence of the right of defense (the occurrence of the right of defense) and so on. In this regard, it is necessary to clarify the similarities and differences between the existing main doctrines arising from "non-protection. 1. The mortgage is extinguished. Scholars who agree with this theory believe that, unlike the Schrodinger's cat principle, the fact of high probability can be assumed by absolute assumption that the inevitable event is the expiration of the mortgage period, the mortgagee must invoke the statute of limitations defense to claim the elimination of the mortgage and then request the cancellation of the mortgage registration. For this reason, it is beneficial to make the best use of things, to play the value purpose of circulation efficiency and balance of interests, and to reduce the negative effects of norms. The summary of the judgment of "Wang Jun v. Li Rui Mortgage Contract Dispute" published in the 7th issue of the Bulletin of the Supreme People's Court in 2017 (No. 249 in total) clearly states that the consequence of the statute of limitations is the elimination of the mortgage right rather than the loss of the right to win. The author thinks that, combined with the principle of "from the main" image, the theory does not reasonably explain why the real creditor's rights of the time limit have not been eliminated but the mortgage right has been eliminated, and the defects are more obvious. 2. The elimination of the right to win a lawsuit (also known as the loss of execution). The elimination of the right of victory originated from the Soviet Union is a reflection of the old general theory on the issue during the exercise of the mortgage right. The essence of its emergence lies in allowing and requiring judges to invoke and review the expiration, suspension and interruption of the statute of limitations ex officio. Since its quotation, it has been criticized by most scholars as "contradiction between self-concept and logic" and "victory" falling into the "straw man fallacy" in logic on the "objective effect. With the introduction of the concept of private autonomy into the statute of limitations system in Article 3 of the statute of limitations, the doctrine has lost its own basis of existence and has been gradually dispelled and replaced by the doctrine of "the occurrence of the right of defense. 3 the right of defense occurs. Influenced by German legislation and the writings of Taiwan, the existing scholars and practitioners in the domain agree with the view that the right of defense occurs. As far as the author can see, Articles 1 to 3, 5, 18 to 19 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation of Action System in Hearing Civil Cases promulgated by the Supreme People's Court in 2020 use the word "defense" in 12 places. Articles 20 and 419 of the Civil Code also indirectly reflect the right of the mortgagor to invoke the defense of the principal debt limitation according to the interpretation of the text; the introduction of the Interpretation of the Guarantee System also adopts the view of "the occurrence of the right of defense. In summary, the author believes that the existing legislation and judicial interpretation of the doctrine may be based on the following reasons: First, in the context of the current law, the law does not completely stifle the possibility of the mortgagor to realize his rights, and "non-protection" should not be equated with the "elimination" of the mortgage as mentioned in Article 393 of the Civil Code, that is, "non-protection" should not be interpreted as the natural result of the statute of limitations, but rather the effect of the mortgagor invoking the right of defense of limitation. Second, the doctrine simply and clearly explains the situation of rights and obligations between the right holder and the obligor after the statute of limitations by means of the antagonism between the right of claim and the right of defense. Unlike other doctrines, this theory does not go to extremes and does not re-create new legal concepts outside the existing legal framework system, ensuring conceptual homogeneity while reflecting the integrity of the legal system. Moreover, the "occurrence of the right of defense", which specifically refers to the "substantive right of defense", can effectively link up the relevant provisions of the procedural law (such as Article 371 of the Interpretation of the Civil Procedure Law), that is, the court shall not take the initiative to invoke and review the statute of limitations on the premise that the parties do not claim the right of defense of the statute of limitations. Third, the obvious flaws in the theory of annihilation of mortgage, the loss of the basis of its own existence, the understanding of the effect of rights as "incomplete defense" and the natural "private autonomy" publicity effect of the theory of defense, lead to the theory being able to cater to the general environment on the basis of criticism and elimination of other theories, and eventually become a "popular" theory in academic circles and even in judicial practice. The extended interpretation of the period during which the 5. mortgage is exercised. (I) Extension Interpretation I-Article 390 of the Civil Code During the life of the mortgage, on the premise that the secured property is not bound by the parties' intention, the existing rights in rem naturally extend to the "security substitute", which includes the application of the rules during the exercise of the mortgage. What is a "guaranteed substitute"? The author believes that it mainly contains two meanings. The first meaning is the "three gold" stipulated in the law, namely compensation, insurance and compensation. The second meaning is the "etc" mentioned after the "three gold" in the law. As for "etc", the academic circles are divided into two camps. The first camp believes that "guarantee substitute" not only includes the relative elimination of "collateral transfer price", that is, the guarantee is sold, it also includes "all proceeds derived from the mortgaged property", I .e. absolute extinction, including but not limited to fruits, additions, important ingredients, etc. The second camp believes that "security substitutes" only include substitutes formed under the condition of absolute elimination. It believes that the retroactive effect of mortgage right under the condition of "relative elimination" can not only claim to return the mortgaged property to the transferee and realize the mortgage right, but also require to recover the proceeds from the transfer of mortgage property, which has the disadvantages of overlapping beds and overprotecting the mortgagee's suspicion. The author believes that the existing mainstream theory that "etc." is limited to absolute elimination mainly lies in the fact that the physical form of real estate has changed less. At the beginning of the establishment of the security right system, "real estate (value is far greater than movable property)" is at the core, and the wanton expansion of the scope of application of the rule of substitution on the security substitute will ignore the existing legal norms and systems. In addition, based on the principle of "from the master" image, the mortgaged real estate (or movable property) is destroyed, lost or expropriated during the life of the mortgage, and the period rule should automatically apply to the "three gold" until the secured claim is extinguished. However, two major problems arise from this: first, how to deal with the mixing of money after the "three gold" is deposited into the special account designated by the mortgagee? In my opinion, although the mixing of the "three gold" and the money already in the account loses its specificity, the creditor obtains the deposit claim on the bank that opened the account. Since the original security interest cannot be extended to currency, but can be extended to deposit claims, as long as the account balance exceeds the "three gold" and the resulting interest, it can be assumed that the "security substitute" always exists in the mixed account for the withdrawal of the claim "? Even if the" mortgaged property "is transformed into" three gold "due to damage, loss, etc., it is still the same as the" limitation period for execution of the main claim "as described in section III of Part II of this article. (II) Extension Interpretation II-Article 1998 of the Civil Code In order to prevent the mortgagee's mortgage from causing the value of the mortgage to be impaired, the clause gives the mortgagee two remedies: first, to request the mortgagee to cease the act that caused the mortgage to be impaired and to restore the value of the mortgaged property; and second, to require the mortgagee to provide security corresponding to the reduced value. Of course, in judicial practice, the mortgagor may refuse to restore the value of the mortgaged property or provide security, at which point the creditor may request the debtor to pay off the debt in advance. Through this clause, it will also be found that "requiring the mortgagor to provide a guarantee corresponding to the reduced value" includes four situations: the first and (II) situation is that the original mortgage is real estate (movable property), and the rear mortgage is also real estate (movable property); The third situation is that the original mortgage is real estate and the rear mortgage is movable property; the fourth situation is that the original mortgage is movable property and the rear mortgage is real estate. Whether the original mortgage is real estate (or movable property) or the post-mortgage is movable property (or immovable property), the principle of "following the master" image shall be followed (with exceptions, see below). The period of exercise of the mortgage right is applicable to the suspension, interruption and extension of the limitation of action and execution of the limitation of the main creditor's right, but corresponding problems will also arise. For the convenience of understanding, the following is illustrated by way of examples. Example: A borrowed 1 million yuan from B on October 1, 2021 for a period of one year. Both parties agreed to repay the principal on October 2, 2022. A mortgaged the real estate A (or movable property A, which is not repeated below) under his name to B. Situation 1 is that when the debt performance period expires, A fails to repay the debt and damages the real estate A on December 2, 2022, resulting in the value of the real estate falling from the original 1 million to 800000 yuan. B discovers on December 12 of the same year and requires A to provide a guarantee corresponding to the reduced value. A mortgages the real estate B under his name to B the next day; case 2 (ibid.) B did not claim its own creditor's rights to the court before October 2, 2025 but found that the original real estate A was damaged, and immediately requested A to provide a guarantee corresponding to the reduced value. A mortgaged the real estate B with a value of 200000 yuan under its name to B on October 3, 2025. In summary, in case one, when B claims the right to provide a mortgage again to A within the statute of limitations (the same applies to the execution of the statute of limitations), the statute of limitations is interrupted and re-calculated, at this time, the claim of 800000 yuan secured by the original mortgage and the claim of 200000 yuan secured by the post-mortgage (the front and back claims should be regarded as a whole) are calculated again for three years from the time of registration of the real estate mortgage (or when the movable property mortgage contract comes into effect), and there is no objection to this. If the creditor does not claim to exercise the claim or mortgage during the limitation period of the claim, but A sets up a "secondary" mortgage for B during the "natural" period of the mortgage, is it necessary to clarify the period during which the mortgage is exercised? In case 2, the creditor's right of 800000 yuan was reduced to "natural debt" due to exceeding the limitation period of action, thus the exercise of the original mortgage lost the legal compulsory protection. As for the 200000 yuan creditor's right becoming a "natural debt", it is indisputable that Party A provides the corresponding guarantee again, which means that Party A voluntarily performs the 200000 yuan's debt, thus giving rise to a question, is there still a problem during the exercise of mortgage? For the above two cases, the existing law does not give clear provisions. In my opinion, in order to strike a balance of interests between the utility of collateral circulation and judicial efficiency, as well as between creditors and mortgagors, legislation should clarify the period of exercise of the mortgage corresponding to the "secondary" mortgage, rather than being confined to the principle of "following the master" across the board, but breaking through the existing legal framework to make special provisions, that is, to clarify the period of exercise of the mortgage of the "secondary" mortgage. 6. epilogue The "point-to-point" period expression draws a clearer line between the mortgage period and the legal terms related to it, so that the exclusion period, statute of limitations, etc. cannot be treated "equally" with the mortgage period. Combing the legislative history of the mortgage period will still find that the legislative guidelines of different countries in different periods affect the meaning, characteristics and even the definition of the nature of the mortgage in China, and to this day, the rules of the period of the exercise of the mortgage are still looking for a position in line with China's national conditions in the judgment and theoretical disputes. The unique "dual model" makes the application of the period more complicated, and the differences in legislative terms also make the theory of the period of exclusion, from the attribute, the elimination of the right to win the case and so on. The application of the period rule shall extend to the "security substitute" obtained after the loss, destruction (or expropriation, etc.) of the mortgaged real estate (or movable property) ". Of course, the legislation should also clarify the rules for the exercise of the "secondary" mortgage period based on the impairment of the value of the collateral, rather than calculating the "mortgage exercise period" within the existing legal framework system based on existing laws and regulations ". 7. reference works [1] Wang Liming, Civil Law, Renmin University of China Press, 2020; [2] Wei Zhenying: "Civil Law", Peking University Press, 2017; [3] Wang Liming, Research on Property Law (Volume II), Renmin University of China Press, 2013; [4] Zipelius: Methodology of Law, translated by Jin Zhenbao, Beijing Law Press, 2009; [5] Wang Shengming, Editor-in-Chief: "Interpretation of the People's Republic of China Property Law", Law Press, 2007, pp. 436-437; [6] Huang Pine has: 《<中华人民共和国物权法>Interpretation and Application of Provisions, People's Court Press, 2002, p. 603. 8. References [1] Zhuang Jiayuan, "Implied Extension of Security Rights in Movable Property", Legal Studies, No. 2, 2021, p. 39; [2] Yang Wei, "The Connection between the Exercise of Mortgage and the Limitation of Action for Principal Claims-From the Perspective of Article 419 of the Civil Code and the New Provisions of Judicial Interpretation", Northern Law, No. 6, 2021; [3] Lin Wenxue, Yang Yongqing, Ma Jinliang, Wu Guangrong: 《<关于适用民法典有关担保制度的解释>Understanding and Application of the People's Justice, No. 4, 2021, p. 40; [4] Luo Shuai, "Interpretation of the Rules of Mortgage Period under Skopos Theory-Centered on Article 419 of the Civil Code", Journal of Shandong University (Philosophy and Social Sciences), No. 6, 2020, p. 85; [5] The Second Civil Trial Division of the Supreme People's Court, ed: 《<全国法院民商事审判工作会议纪要>Understanding and Application, People's Court Press, 2019, p. 361; [6] Huo Haihong: "Name" and "Reality" of the Elimination of the Right to Win a Case, Chinese and Foreign Law, No. 2, 2012, p. 351; [7] Gao Shengping, "Study on the Period of Exercise of Security Rights", Journal of East China University of Political Science and Law, No. 1, 2009; [8] Xu Mingyue: "Legislative deficiencies in the collateral transfer system and its judicial interpretation remedies-Review<中华人民共和国物权法>Article 191, Law and Business Research, No. 2, 2008, p. 146; [9] Sun Peng, "On the Period of Implementation of Security Interests", in Modern Law, No. 6, 2007, pp. 85-87; [10] Wen Shiyang and Liao Huanguo: "On the co-accommodation of the superior subrogation of the mortgage right and the power of the object", Law, No. 6, 2001, p. 51; [11] Zhao Jia, "An Analysis of the Duration of Mortgage Rights and Related Issues-A Commentary on Article 59 of the Ninth Minute", in the 30th Series of the Judicial Reform Review. 9. reference case [1] Han Xiaolan and Tang Zuoyin's Civil Ruling Letter on Retrial Review and Trial Supervision of the Application for Execution of Objection by Executors [(2021) Supreme Law Minshen No. 1134]; [2] Liu Wei and Zhongjing Xin Investment Co., Ltd. and other mortgage contract disputes second-instance civil judgment [(2016) Jing 03 Min Zhong No. 9567]; [3] Sales Contract between Dongguan Cihua Stationery Products Co., Ltd. and China Minmetals Shenzhen Import and Export Co., Ltd. and Longyan Hongyu Trading Co., Ltd.</中华人民共和国物权法></全国法院民商事审判工作会议纪要></关于适用民法典有关担保制度的解释></中华人民共和国物权法>

2022-02-23

(IV) on the rules of mortgage period.

The basic relationship between the period of exercise of the mortgage right of the 3. and the limitation of action and the limitation of execution of the main claim. The determination of the nature of the period during which the (I) mortgage is exercised. Combined with the adjudication approach and the theoretical controversy, the nature of the period during which the mortgage is exercised is divided into three main points of view: first, the statute of limitations. The doctrine holds that the mortgage and the main claim "co-existence and co-extinction", applicable to the provisions of the statute of limitations on suspension, interruption and extension, should not be eliminated by the statute of limitations of the main claim, but into a "naked right" to apply the "loss of the right to win the case" view. The second is said during the exclusion period. The study considers that the mortgage as a limited property right is different from the claim that mainly applies to the statute of limitations. The linkage does not mean that it is equally applicable and that the right should be extinguished at the end of the period. The doctrine holds that the mechanical attribution of the mortgage exercise period to the statute of limitations or the exclusion period is a logical error, and it can be regarded as a special period in combination with the existing civil law of our country (such as the "guarantee period" stipulated in Article 692 of the Civil Code). Whether this "special period" is an independent period (also called the judicial protection period) mainly includes two viewpoints, the first view is that the mortgage exercise period belongs to the independent period based on the limitation period of the main creditor's right, but it is calculated in parallel with the limitation period of the main creditor's right, that is, the two periods are calculated separately, and whether the periods affect each other is divided into two views, one view is that they do not affect each other, the other view is that they affect each other, and the latter is mostly recognized in judicial practice. The second view is that the period during which the mortgage is exercised does not belong to the period of independence, and that everything is the application of the image of "following the master" in judicial practice, and the author agrees with the second view. In addition, in conjunction with the above, the duration includes the period of exercise of the mortgage and the period of exclusion, and the two periods are side by side rather than inclusive, I .e., the period of exercise of the mortgage is not a period of exclusion, but another period classification that is side by side with the statute of limitations and the period of exclusion. The Effect of (II) "Dual Model" on the Period of Mortgage Exercise Combined with the "limitation of action" mentioned in Chapter 1, Part 9 of the Civil Code of China and the many amendments to the Civil Procedure Law and related judicial interpretations until now the "limitation of execution" mentioned in Article 246 of Chapter 20 (known as the dual model or dual pattern in academic circles), the limitation of execution has gradually changed from the period of procedural law to the period of protection of substantive rights, such as the suspension of limitation of execution and the interruption rules applicable to the suspension of limitation of limitation of litigation; in the enforcement procedure, the court may not, on its own initiative, invoke the provisions on the expiration of the limitation of execution. On this basis, we interpret the provisions of Article 44 of the Interpretation of the Guarantee System: 1. After the expiration of the statute of limitations for the principal claim, the people's court shall not support the mortgagee's claim to exercise the mortgage. The interpretation of this article is that the mortgagee shall exercise the mortgage within the limitation period of the main claim, and upon the expiration of the exercise, the main claim will lose the protection of the court's enforcement power. According to the principle of "following the master" image, the mortgage is also reduced to a "naked right" or a "natural right" and thus cannot be supported by the court. Of course, the rights enjoyed by the mortgagee died during the "first heavy" protection period, and did not transition to the "second heavy" protection period, which does not involve the application of the statute of limitations. 2. If the mortgagor claims not to be liable for security on the grounds that the statute of limitations for the principal claim has expired, the people's court shall support it. The interpretation of this article is to give the mortgagor the legal right to claim the "limitation defense" under the premise that the court may not invoke the expiration of the statute of limitations on its own initiative, but the question arises as to whether the mortgagor can claim the mortgage registration together or after the fact after claiming no liability for security. It is believed that although the expiration of the statute of limitations for the principal claim does not belong to one of the circumstances in which the security right is extinguished under Article 393 of the Civil Code, the Minutes of the Meeting clearly stipulates that the mortgagor may request the court to cancel the registration after the expiration of the statute of limitations for the principal claim, and the Interpretation of the Guarantee System does not provide for it again in order to prevent confusion in the application of legislation. In my opinion, the right of claim based on the "annihilation of mortgage" does not affect the application of the right of claim based on the "right of defense. 3. Before the expiration of the limitation period for the main claim, the creditor shall only bring an action against the debtor, after the judgment or mediation of the people's court. This article is interpreted to mean that even if the mortgagor is not listed as a defendant during the "first heavy" protection period, as long as the payment and confirmation claims are confirmed by the effective legal instrument and constitute the basis for execution, the transition to the "second heavy" protection period can be made. In short, if the payment content determined by the enforcement basis (payment order, fair creditor's rights instrument, judgment, mediation statement, decision confirming the mediation agreement, arbitral award, etc.) is clear and meets other conditions for the people's court to accept the enforcement case, the relevant provisions of the statute of limitations shall apply to the enforcement procedure. It should be noted that the report or complaint of the mortgagee requesting the protection of civil rights may not only cause the interruption of the statute of limitations, but the resulting fine or confiscation of property may also make the civil payment the subject of enforcement, but such payment may not become the mortgaged property in advance; or the administrative action initiated by the mortgagee on the basis of civil legal relationship constitutes the cause of the interruption of the statute of limitations, however, the administrative judgment does not take civil payment as the subject matter of enforcement and does not give rise to the issue of the time limit for transitional enforcement. 4. If the debtor fails to apply for enforcement within the period of application for enforcement, the people's court shall not support its claim to the mortgagor to exercise the mortgage right. The interpretation of this article is based on the general cause of the extinction of the debt and the principle of the "subordinate" image of the mortgage, which is extinguished by the extinction of the first paragraph of Article 557 of the Civil Code during the period of limitation of execution of the principal creditor's debt relationship. If the mortgagee fails to take any measures to be paid during the "second" protection period to extinguish the claim in whole or in part, the right will be reduced to a "naked right" because it has exceeded the time limit for enforcement ". In addition, the "application for enforcement" described in the provisions is not the only means for the right holder to claim rights, and should be understood in a broad sense, with the same effect also including the obligor's agreement to perform the obligation, the two parties to reach a settlement agreement and so on. Of course, the above-mentioned means are also the cause of the interruption of the execution of the statute of limitations, pending the elimination of the interruption of the resumption of the execution of the statute of limitations and the execution of the statute of limitations has not expired, the mortgage is still in the "second" period of protection. Applicable circumstances during the exercise of (III) mortgage Judicial practice cases and theoretical disputes are like "a treasure house of knowledge for discovering, analyzing and solving problems", and this section hopes to list the applicable circumstances during the exercise of existing mortgages in conjunction with the provisions of relevant laws and regulations. 1. The "first heavy" protection period Scenario 1: During the limitation period of the main claim, the claim is claimed but the mortgage is not claimed, and the lack of confirmation of the mortgage in the effective judgment or mediation does not cause the mortgagee to lose the mortgage. According to Article 140 of the Civil Code, the meaning of silence has legal effect only if it is statutory, agreed and in accordance with the customs of the transaction. Subject to the principle of "non-disregard", the conciliation statement (or judgment) shall not contain matters other than the main claim claim, nor shall it be stated that the mortgagee shall waive the mortgage on the mortgaged property, provided that the parties have not had a dispute over the mortgage. If the mortgagee does not give up the mortgage in an express manner, nor does he apply with the debtor to the real estate registration authority to cancel the mortgage registration, it is not appropriate to directly presume that the mortgagee has waived the right to exercise the mortgage, so the mortgagee still enjoys the mortgage right to the mortgaged property. Case 2 (Understanding Case 4): The original purpose of the statute of limitations and the statute of limitations for enforcement is to urge the right holder to claim his or her legal rights by initiating judicial proceedings within the statutory period. If no effective measures are taken to claim claims and exercise mortgages, such rights sleeping on the "hotbed" of limited time will not be necessary for legal protection. Case 3 (understand the following "second heavy" protection period case 8): the main claim within the statute of limitations period did not claim the main claim and apply for the realization of the mortgage, at this time should be applied to the civil procedure law chapter 15, section 7 of the non-contentious procedure, that is, the relevant rules of the case of the realization of the security right. It should be noted that: first, the applicant applying for the realization of the real right of security should not only be understood as the owner of the real right of security, but also include the mortgagor or owner other than the mortgagee; second, the situation of "applying for the realization of the mortgage right" and "filing a lawsuit" and "applying for arbitration" have the same effect, which constitute the cause of interruption of limitation; third, if the parties have no (part of) substantial dispute over the realization of the mortgage right and the (undisputed part) conditions have been achieved, the mortgagee can enforce it according to the court's ruling. If the mortgage right paid in full for the main creditor's right is eliminated, there is no limitation of application. If the mortgage right paid for the main creditor's right is eliminated, the remaining creditor's right is changed from "guaranteed (or priority) creditor's right" to "to", and the ordinary creditor's right ", and the right, the court rejected the creditor's application and caused the creditor to bring a lawsuit to the court because of the dispute between the parties on the validity of the main contract or the mortgage contract, whether the mortgage is effectively established, whether the secured claim is the liquidation period, and so on, which involves" two interruption of limitation ". The "second" protection period The premise of the application of the "second heavy" protection period is that the creditor has filed a lawsuit with the people and obtained a successful judgment (or the parties have reached a mediation) during the "first heavy" protection period, and this stage is transformed into a discussion of how to deal with the relationship between the statute of limitations and the mortgage, which mainly includes the following four situations in judicial practice: Scenario 5: No application for the exercise of the mortgage right during the "first heavy" protection period, after the judgment comes into effect (or the parties reach a mediation), apply for enforcement but do not claim the exercise of the mortgage right during the period of limitation of execution. Based on the principle of the property of the security right, the mortgage right is eliminated with the full payment of the main claim, and the main claim is not paid in full, the mortgage right is still in the remaining outstanding claim. At the same time, "application for enforcement" as a legal interruption, the time limit for the execution of the remaining claims will be affected by this, before the expiration of the mortgage and the remaining claims are protected by law. Extended Interpretation 1: After reaching an enforcement settlement agreement with the executed person under court mediation, the court ruled to terminate the enforcement procedure. According to the sixth paragraph of Article 16 of the notice on filing and closing opinions, if the person applying for execution (or the court) finds that the person subject to execution has property after the ruling of "ending the execution procedure" is made, the execution may be resumed on application (or ex officio). The application executor shall not be limited by the time limit for the execution of the application. The reason for this is that since the judgment of the principal claim has entered into force and the mortgagee has applied for enforcement within the statutory time limit, there is no question of interruption, suspension or extension of the statute of limitations for the principal claim. As a subordinate right, there is no question of interruption, suspension or extension during the exercise of the mortgage. The mortgagee may, when applying for the resumption of enforcement proceedings, claim the exercise of the mortgage together with the enforcement court. Extended interpretation 2: After reaching an execution settlement agreement with the person subject to execution under court mediation, and the person applying for execution requests the court to suspend or withdraw the execution application, the court may consider whether to make a decision to suspend or terminate the execution based on the execution of the case. It should be noted here that the termination of this execution procedure (see extended interpretation 1) is different from the termination of execution and suspension of execution. Suspension of execution, as the cause of suspension of execution limitation, can resume the calculation of execution limitation after the cause of suspension is eliminated. However, withdrawal of the execution application leads to the termination of the execution of the case. In principle, the execution procedure cannot be started again. Of course, in some cases, an application can be made to the execution court. In the author's opinion, such a situation of submitting an application and withdrawing the application constitutes an interruption of the execution statute of limitations, which should be recalculated. Extended Interpretation III: After the court mediation to reach a settlement with the debtor, the court ruled to terminate the execution proceedings, and then the debtor filed for bankruptcy liquidation, the mortgagee within the statutory period to declare claims to the administrator. Although the debtor filed an application with the people's court to initiate bankruptcy liquidation procedures during the execution of the case, the mortgagee has already declared its own property-guaranteed creditor's rights to the bankruptcy administrator with an effective judgment within the period of declaration of creditor's rights (legal protection period) stipulated by law, so the main creditor's rights are still within the period of legal protection, and accordingly, its mortgage right should also be protected by law. Scenario 6 (including scenario 9): "The first heavy" protection period does not apply for confirmation of the exercise of the mortgage, after the judgment has entered into force (or the parties have reached a mediation), apply for enforcement and claim the exercise of the mortgage during the period of limitation of execution, or neither apply for enforcement nor claim the exercise of the mortgage during the period of limitation of execution. The legal consequences arising from the former are referred to in case I and will not be repeated here. The legal consequences arising from the latter invoke the above-mentioned "first heavy" protection period situation II, that is, there is no need for legal protection.

2022-02-22