Viewpoints | New changes in the Civil Code on external guarantees for corporate branches

1. Foreword Article 74 of the Civil Code provides that legal persons may establish branches in accordance with the law. If a branch engages in civil activities in its own name, the civil liability arising therefrom shall be borne by the legal person. As an enterprise legal person, the effectiveness of the guarantee provided by its branches to the outside world, the Civil Code does not follow the relevant provisions of the original Guarantee Law, and is briefly analyzed below in conjunction with the Civil Code and related provisions. Legal status of branches of 2. companies As an independent enterprise legal person, its branches are not independent civil subjects, and it shall obtain written authorization from the company to engage in civil activities on behalf of the company. The form of written authorization can be either a general authorization reflected in the business license of a branch of the company or an individual written authorization. The validity of the original guarantee law of the 3. on the external guarantee of the branch of the enterprise legal person shall be judged by the written authorization of the legal person. If a branch of an enterprise legal person concludes a guarantee contract with a creditor without the written authorization of the legal person or beyond the scope of the authorization, the contract is invalid or the part beyond the scope of the authorization is invalid, and if the creditor and the enterprise legal person are at fault, they shall bear the corresponding civil liability according to their fault; if the creditor is not at fault, the enterprise legal person shall bear the civil liability. Therefore, if the debtor, guarantor and creditor are at fault, they shall bear the corresponding civil liability according to their fault. If a branch of an enterprise legal person provides a guarantee with the written authorization of the legal person, if the scope of the written authorization of the legal person is unclear, the branch of the legal person shall bear the guarantee responsibility for all the debts stipulated in the guarantee contract. New Changes in the 4. Civil Code on the External Guarantees of Corporate Branches Comparing Article 11 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System under the the People's Republic of China Civil Code, which came into effect on January 1, 2021, it can be found that there have been significant changes in the determination of the validity of the external guarantee of the company's branches: The (I) shall perform the procedures for the resolution of the shareholders' (general) meeting or the board of directors. Since the branch of the company is not an independent civil subject, its representation comes from the company. In order to prevent the legal representative from providing guarantees for others on behalf of the company at will, causing losses to the company and harming the interests of small and medium shareholders, Article 16 of the Company Law restricts the representation of the legal representative and stipulates that the resolutions of the company's shareholders (general) meeting, board of directors and other company organs must be used as the basis and source of authorization. The company's resolution is the direct evidence to prove the true meaning of the company's external guarantee. The relative can only claim liability from the company or branch in good faith. Branches of (II) financial institutions are not required to perform the company's authorization to issue a letter of guarantee. In view of the principle of separate supervision of the financial industry in China, the Banking and Insurance Regulatory Commission supervises banks, insurance and other non-bank financial institutions, and the Securities and Futures Commission supervises financial institutions in the securities industry, whether financial institutions that can operate letter of guarantee business need to be determined in accordance with the regulatory regulations of various financial institutions. A financial institution does not need to obtain a corporate resolution to issue a letter of guarantee, and may use whether the business license of the financial institution records the letter of guarantee or guarantee business as the basis for determining whether the company authorizes the branch in general. For guarantees other than guarantees, authorization should still be obtained in accordance with the appropriate resolution procedures. The branch of the (III) guarantee company must obtain the authorization of the company. A guarantee company is a company established in accordance with the Regulations on the Supervision and Administration of Financial Guarantee Companies and is not subject to the adjustment of Article 16 of the Company Law. Due to the special nature of the business of the guarantee company, its business license of course records the guarantee business, can not be simply understood as the guarantee company's general authorization of the branch. According to Article 8 of the Judicial Interpretation of the Guarantee System of the Civil Code, a guarantee company does not need to make a resolution by the company to provide a guarantee. Considering the particularity of the guarantee, there is of course guarantee business in the business license of its branch, but it cannot be understood as the general authorization of the company. Therefore, although the external guarantee of the branch of the guarantee company does not need a resolution by the company, it should still obtain the authorization of the company. 5. Reference Law Article 11 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the Civil Code of the People's the People's Republic of China of China (Fa Shi [2020] No. 28) If a branch of a company provides a guarantee in its own name without a resolution of the shareholders' (general) meeting or the board of directors of the company, and the relative requests the company or its branch to bear the guarantee liability, the people's court shall not support it, but the relative does not know and should not know that the branch provides external guarantee without the company's resolution procedure. If a branch of a financial institution issues a letter of guarantee within the scope of business recorded in its business license, or is authorized to issue a letter of guarantee by a superior institution with the right to engage in guarantee business, and the financial institution or its branch claims not to bear the guarantee liability on the grounds of violating the provisions of the Company Law on the resolution procedure of the company's external guarantee, the people's court shall not support it. If a branch of a financial institution provides a guarantee other than a letter of guarantee without the authorization of the financial institution, and the financial institution or its branch claims not to be liable for the guarantee, the people's court shall support it, except where the counterpart does not know and should not know that the branch provides a guarantee without the authorization of the financial institution. If a branch of a guarantee company provides a guarantee without the authorization of the guarantee company, and the guarantee company or its branch claims not to bear the guarantee liability, the people's court shall support it, except where the counterpart does not know and should not know that the branch provides a guarantee without the authorization of the guarantee company. If a branch of the company provides a guarantee to the outside world, and the relative is not in good faith and requests the company to bear the liability for compensation, it shall be handled with reference to the relevant provisions of Article 17 of this interpretation. 2. Interpretation of the Supreme People's Court on Several Issues concerning the Application of the the People's Republic of China Guarantee Law (Fa Shi [2000] No. 44) Article 17 If a branch of an enterprise legal person provides a guarantee without the written authorization of the legal person, the guarantee contract shall be null and void. Therefore, if a loss is caused to the creditor, it shall be dealt with in accordance with the provisions of Article 5, paragraph 2, of the Security Law. If a branch of an enterprise legal person provides a guarantee with the written authorization of the legal person, if the scope of the written authorization of the legal person is unclear, the branch of the legal person shall bear the guarantee responsibility for all the debts stipulated in the guarantee contract. If the property operated and managed by a branch of an enterprise legal person is not sufficient to bear the guarantee liability, the enterprise legal person shall bear civil liability. If a branch of an enterprise legal person shall bear the liability for compensation after the guarantee provided by the branch is invalid, it shall be borne by the property managed by the branch. If an enterprise legal person is at fault, it shall be dealt with in accordance with the provisions of Article 29 of the Guarantee Law. 3. Article 16 of the the People's Republic of China Company Law (as amended in 2018) The company's investment in other enterprises or the provision of guarantees for others shall, in accordance with the provisions of the company's articles of association, be resolved by the board of directors or the shareholders' meeting or the general meeting of shareholders; if the company's articles of association stipulate a limit on the total amount of investment or guarantee and the amount of a single investment or guarantee, it shall not exceed the prescribed limit. Where a company provides a guarantee for the shareholders or actual controllers of the company, it must be resolved by the shareholders' meeting or the general meeting of shareholders. The shareholders specified in the preceding paragraph or the shareholders controlled by the actual controller specified in the preceding paragraph shall not participate in the voting on the matters specified in the preceding paragraph. The vote shall be passed by a majority of the voting rights held by other shareholders present at the meeting. 4. Minutes of the National Court Conference on Civil and Commercial Trials (Law [2019] No. 254) 17. [Violation of Article 16 of the Company Law constitutes ultra vires representative] In order to prevent the legal representative from providing guarantees for others on behalf of the company at will, causing losses to the company and harming the interests of small and medium shareholders, Article 16 of the Company Law restricts the representation of the legal representative. According to this article, the act of guarantee is not a matter that can be decided by the legal representative alone, but must be based on the resolution of the company's shareholders (general) meeting, board of directors and other corporate organs as the basis and source of authorization. If the legal representative provides security for others without authorization, it constitutes an ultra vires representative, and the people's court shall, in accordance with the provisions of Article 50 of the Contract Law on the ultra vires representative of the legal representative, distinguish whether the creditor is in good faith at the time of the conclusion of the contract to determine the validity of the contract: if the creditor is in good faith, the contract is valid; otherwise, the contract is invalid.

2022-02-21

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

(Continuously) 2. From the General Principles of Civil Law to the Interpretation of the Guarantee System: the legislative evolution during the exercise of mortgage in China. (I) initial stage The General Principles of Civil Law, promulgated in 1986, do not provide for the period during which the mortgage is exercised, but only three provisions describe the types of prohibited collateral and the manner in which the secured obligation is performed-the mortgage. In 2005, the "Guarantee Law" was promulgated, which changed the position of the "General Principles of Civil Law" on mortgage, redefined the meaning of mortgage from the perspective of the civil law system, and proposed for the first time in Article 52 of this law that the mortgage and its secured creditor's rights "co-exist and co-exist". It is precisely because of the emergence of this clause that it leaves room for discussion on the definition of the nature of the mortgage during the exercise period. In addition, the General Principles of Civil Law does not set up a chapter on the General Principles of the Law of Debt, and in practice, the "general provisions" on the termination of rights and obligations under the Contract Law are often regarded as the general cause of the extinction of the debt, but the "general provisions" do not include "the loss of the right to prevail on the principal claim due to the expiration of the statute of limitations" as one of the circumstances in which the extinction of the claims. According to the provisions of "co-existence and co-extinction", the mortgage is still in existence at this time, and the general principles of civil law do not give a clear answer on how to deal with it after the mortgagor invokes the creditor's limitation defense. In 2000, the "Interpretation of Guarantee Law" was issued. Article 12 for the first time specifies the period of mortgage exercise, that is, "within two years of limitation of main creditor's rights". The author thinks that the above period should be divided into two periods for calculation. The first period is the limitation of action for main creditor's rights. Although the legislation does not clearly stipulate that the mortgage in this period is subject to the suspension, interruption and extension of the limitation period of main creditor's rights, however, some scholars, taking into account the basic principles of civil law, define this period as the period of exclusion, during which the mortgage is extinguished upon the expiration of four years (including the second period); others believe that it is a statute of limitations and should be understood as the "period of exclusion of the statute of limitations (the second period)", but agree that the second period is the "period of exclusion". What is to be explained here is that the second period does not belong to the limitation of execution. Before the Interpretation of Guarantee Law was promulgated, a review of the legislative evolution of China's Civil Procedure Law found that Article 169 of the 1982 Civil Procedure Law (Trial) and Article 219 of the Civil Procedure Law promulgated in 1991 are "six months" and "one year", which have nothing to do with the two-year exclusion period. Some scholars believe that this article draws on the provisions of civil law in Taiwan. In addition, the article only provides for "support", and no explanation is given as to whether "non-support" should be understood as "not protected by law" or "the mortgage is extinguished. (II) development stage Before the promulgation of the Property Law in 2007, there were four versions of disputes regulating the duration of mortgage. The legislation finally chose to delete the two-year exclusion period mentioned above, shortening the period of mortgage exercise from "within two years of limitation of the main creditor's right" to "within the limitation of action of the main creditor's right", so that the nature of the dispute was retained in the first period of discussion. At the same time, "support" is expressed as "not protected", this change in legislative language does not really solve the question of whether the mortgage is extinguished, but leaves the difficult question of whether the mortgagor can apply for the mortgagee's assistance in canceling the mortgage registration. Based on this, the following three kinds of judgment results are mainly obtained through the investigation of practical cases: first, the limitation of action of the mortgage right due to the main creditor's right has not been eliminated, and the mortgagee has no obligation to assist the mortgagee to cancel the mortgage registration; Second, the limitation of the mortgage right due to the main creditor's right has not been eliminated. In order to maintain the normal use and circulation of the mortgage and create greater social value, the mortgagee, the mortgagor shall have the right to apply for the cancellation of the registration of the mortgaged property. In addition, in 2014, the Jilin Provincial Higher People's Court issued the "(I) on Answers to Some Difficult Questions in Commercial Trials". The reply to question 28 clearly stated that the mortgage right due to the limitation of action of the main creditor's rights had not been eliminated. At the same time, it cleverly avoided the existing legislative gaps and proposed another way to cancel the mortgage registration. The mortgagor could sue for the termination of the mortgage contract as stipulated in Item 1 of Article 110 of the Contract Law. After the court decides to terminate the mortgage contract, the mortgagor may apply for cancellation of the mortgage registration with the judgment. Through the above combing, it is known that in this period of judicial practice, different levels of courts "different judgments in the same case" phenomenon, the purpose of mortgage setting is difficult to achieve at the same time so that both parties trapped in the mortgage relationship can not get rid of, and finally a "lose-lose" situation. (III) perfection stage In view of the difficult disputes at the forefront of civil and commercial trials, in order to unify the thinking of adjudication, standardize the discretion of judges, and enhance the openness, transparency and predictability of civil and commercial trials. The Supreme People's Court promulgated the "Minutes of the National Court Civil and Commercial Trial Work Conference" (hereinafter referred to as the "Minutes of the Meeting") in 2019, in which Article 59 clearly stipulates "the legal consequences of the mortgage right after the statute of limitations of the main creditor's rights", That is, the right to cancel the registration request is based on the premise of "the elimination of the mortgage right. However, we need to note that the Minutes of the Meeting do not belong to judicial interpretation and cannot be invoked as a basis for adjudication, but can only be invoked in the specific analysis of the reasons for the application of the law in the "opinion of this Court" part of the adjudication document. The Supreme Court, on the premise that it is unable to interpret the law in accordance with the existing context, amended the provisions of Article 202 of the Property Law by way of judicial guidance, which is undoubtedly a regulation of the phenomenon of "different judgments in the same case", with a view to the correct understanding and application of the minutes of the meeting by courts at all levels in the trial of the case. When the Civil Code was promulgated in May 2020, and the academic and practical circles criticized that it was still following the legislative model of Article 202 of the Property Law, the promulgation of Article 44 of the Interpretation of the Guarantee System made a new interpretation of Article 119 of the Civil Code, resulting in a new meaning of the period of exercise of the mortgage, the scope of application and the effect. However, there are also differences brought about by the differences in the legislative terms of "no protection" and "no support", and how to connect the "elimination of mortgage" adopted in the Minutes of the Conference and the "occurrence of defense" adopted in the Civil Code. Basic relationship between the period during which the 3. mortgage is exercised and the statute of limitations and enforcement of the principal claim (see next issue)

2022-02-21

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

Discrimination and Analysis of 1. Related Concepts (I) Mortgage Period and Mortgage Term Exploring the relationship between the mortgage period and the term of the mortgage is essentially a discussion of the difference between "term" and "period. What is the period and duration? The modern Chinese dictionary says that the former is "a certain period of time", and the latter is "a limited time, which also refers to the final limit of the limited time". From the legal point of view, "duration" refers to the time that causes the occurrence, change and elimination of civil legal relations. Combined with the meaning of the dictionary, it should be divided into period and duration, the former refers specifically to the time elapsed from a particular point in time to another particular point in time, a particular period of time (dynamic phase) on the expiry date of the spot date, while the latter refers specifically to a particular point in time, or a certain time that is indivisible (static point). From this point of view, the expression of the period of exercise of the mortgage may cover two meanings, one is the period of exercise of the mortgage, that is, the provision of a certain period of time. The second is the date of exercise of the mortgage, that is, a certain period of time. The specific meaning still needs to be examined in the context of the specific context, and if it refers only to a period of time, the expression of the period during which the mortgage is exercised may be more appropriate than the expression of the period during which the mortgage is exercised. (II) statute of limitations and mortgage period From a broad point of view, the statute of limitations, that is, the legal system in which the right holder's failure to exercise his rights within the statutory period will result in the obligor's right to file a defense of refusal to perform, should be attributed to the components of the period, both of which can be understood as the time that leads to the creation, change and elimination of civil legal relations. At this time, the period can be understood as including the period of limitation of action, the period of mortgage, the period of avoidance, etc.; from a narrow point of view, the limitation of action is not part of the period, but is outside the period, different from the period during which the right holder exercises the right or the obligor performs the obligation. At this point, the statute of limitations is juxtaposed with the period, which, of course, includes the guarantee period, the mortgage period, the period during which the right of avoidance is exercised, and so on. According to the current system, the current legislation of our country adopts the broad concept of period, and regards the statute of limitations as a specific period. (III) the period of exercise of the mortgage and the period of the mortgage, the period of the mortgage. The legislation related to the period of exercise of mortgage in the Property Law and the Interpretation of the Guarantee Law shall be invalidated after the entry into force of the Civil Code, but its provisions are still of reference to the existing legislation and judicial practice. Although the "mortgage period" mentioned in Article 191 of the Property Law is different from the "mortgage period" mentioned in Article 67 of the Interpretation of the Security Law, from the perspective of system interpretation, both refer to the period from the establishment of the mortgage to the extinction of the mortgage. Article 419 of the Civil Code adopts the legislative model of the Property Law, and the "mortgage period" should also be understood according to the above meaning. The author believes that the mortgage period (or the duration of the mortgage right) includes the "vacant" period of the mortgage right, the exercise period of the mortgage right and the "natural" period of the mortgage right. The "vacant" period refers to the period from the registration of the real estate mortgage right or the entry into force of the chattel mortgage contract to the expiration of the liquidation period of the secured principal creditor's rights; the exercise period of the mortgage right should be understood as "effective duration" in essence ", means the period from the expiration of the period of liquidation of the secured principal claim to the expiration of the statute of limitations for the secured principal claim; the" natural "period of the mortgage is the period from the expiration of the statute of limitations for the secured principal claim to the extinction of the mortgage. If the mortgagor does not invoke the limitation defense, but waives the limitation defense through judicial proceedings, the conclusion of an agreement to realize the mortgage, the creditor's own auction, the sale of the mortgaged property, etc., the effective duration of the mortgage includes the "natural" period of the mortgage, that is, until the mortgage is extinguished. Since it is impossible to predict whether the effect of exclusion of enforcement will occur, it would be inappropriate to extend it to the point of extinction of the mortgage in a state of uncertainty. In summary, whether the mortgage period or the duration of the mortgage includes the effective duration of the mortgage, the three overlap in time stages, but there are differences in the determination of the starting and ending points and the termination points. Period of exercise of (IV) mortgage and period of exclusion In addition to the period of reprimand, in addition to the meaning of exclusion, rebuke, rebuke, rebuke words, means that the right due to the expiration of the period and extinguished, also known as the predetermined period, unchanged period, duration and so on. What we want to explain here is that although the exclusion period is also called the duration, the meaning of the two is not exactly the same. The exclusion period can be called the duration, such as the "revocation period" mentioned in Article 152 of the Civil Code, the "duration of agreed rights" mentioned in Article 199, and the "duration of debt repayment period" mentioned in Article 28 of the Sole Proprietorship Law. However, the duration does not specifically refer to the period except the denunciation period, for example, "during the existence of a legal person" as described in Chapter III of Title I of the Civil Code, and "during the existence of a marriage relationship" as described in Title V. In other words, the duration includes the period of exclusion, the period of exercise of the mortgage, etc. What is the relationship between the period of exclusion and the period of the exercise of the mortgage, it is necessary to define the nature of the period of the exercise of the mortgage, the academic and practical circles have always had great differences on this, the author will focus on the following.

2022-02-17

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

Abstract From the point of view of the interpretation of the civil law system, the meaning of the mortgage period and the duration of the mortgage convergence, but different from the effective duration of the mortgage, the mortgage "period" and the mortgage "term" is synonymous with the specific context. Legislative amendments and improvements so far, the nature of the term of the exercise of mortgage rights is still controversial, the statute of limitations, except for the period of rebuke, from the attribute theory and other theories came into being, the universities said each has its own advantages, the academic community and even the judicial practice community has not formed a unified conclusion for a long time. The inconsistency of the legislative terms "no protection" and "no (to) support" related to mortgage rights also causes great ambiguity. After the mortgaged immovable property (or movable property) has been lost, damaged or expropriated, the "guarantee substitute" has been obtained. At this time, the mortgage exercise period rules should be extended to the "guarantee substitute" and continue to apply; if the "guarantee substitute" is not obtained, both parties will mortgage other immovable property (or movable property) again. In order to achieve a balance of interests between the creditor and the mortgagor, the legislation should clarify the corresponding mortgage exercise period of the "second mortgage, rather than simply discussing the" period of exercise of the mortgage "on the basis of the existing Civil Code and the Interpretation of the Security System". Introduction According to the current system, from the "duration of mortgage" mentioned in the Interpretation of the Security Law to the "duration of mortgage" mentioned in the Property Law to the "duration of mortgage exercise", "duration of mortgage exercise" and "duration of effective mortgage" mentioned in academic and even practical circles, do the above expressions mean that the concepts are the same, and how should they be distinguished if different concepts are recognized? What is the relationship between different concepts? After the distinction, we look back on the legislative history of the "time limit for the exercise of the mortgage right" and find that the Security Law promulgated in 1995 did not stipulate the time limit for the exercise of the mortgage right, and the Interpretation of the Security Law in 2000 explicitly stipulated the time limit for the exercise of the mortgage right as "within two years of the limitation of the principal claim". After a lapse of seven years, the promulgation of the "Property Law" broke the original legislative model, shortening "within two years of the limitation of the main creditor's rights" to "within the limitation period of the main creditor's rights". At the beginning of the promulgation of the "Civil Code", the legislative model of the "Property Law" was also adopted. However, with the promulgation of the "Interpretation of the Guarantee System", the period for the exercise of mortgage has been given a new definition. After such a long period of legislative amendments and improvements, has the existing legislation failed to add new diseases to the old ones? Has the nature of the period of exercise of the mortgage been clearly defined? Are the legal consequences of not exercising within the statutory period sufficiently clear? How to clarify the relationship between the period of exercise of the mortgage and the limitation period of the main claim and the limitation period of execution? On the basis of conceptual analysis and legislative evolution, how should we understand the provisions of existing legislation on "no (to) support" and "no protection? In the event that the collateral is lost, damaged without compensation (compensation, insurance) or the value of the collateral is reduced, the parties again set up a mortgage on another immovable property (or movable property), how to connect the original immovable property (or movable property) mortgage period with the existing immovable property (or movable property) mortgage period? This paper hopes to explore and tentatively give the answer or solution to the corresponding problem from the fuzzy zone of the existing legal regulation.

2022-02-17

Real estate perspective: After the completion and settlement of the construction project, can the contractor claim compensation from the contractor for the pre-settlement matters?

1. case introduction Changzhou Branch of Company A signed a construction contract with Company B, agreeing that Party A will contract Workshop B to 2. the third-class project. After the contract was signed, A fulfilled its contractual obligations. On October 20, 2018, the two parties signed a completion settlement payment agreement on the payment of the project. On January 18, 2019, the two parties signed the project statement, but B did not pay the project as agreed. Party B believes that there is double calculation of Party A's project funds. The scope of the construction contract signed by both parties includes the pile foundation project of the house. The plaintiff calculated the foundation pile foundation 750000 yuan in addition to the contract price. The doors and windows of workshop 2. 3 were not constructed according to the design requirements, specifically, the wall thickness, glass thickness and hollow distance of the profiles did not meet the design standards. Party B has paid more than 880 million yuan for the project. Party A only issued an invoice of 1500000 yuan. Party B has the right to refuse to pay the project. If A fails to issue the invoice in time and causes the defendant to deduct the loss, it shall be deducted from the project fund....... 2. focus of controversy After the completion and settlement of the construction project, can the contractor make another claim against the contractor? 3. court decision When the parties to a construction contract carry out the completion and settlement of the project, they shall, in accordance with the contract, examine whether the other party's performance of the contract conforms to the agreement and make corresponding claims. Claims and amounts shall be approved and processed together with the settlement. The project settlement statement formed by the parties on January 18, 2019 is the final basis for the settlement of the project price. The defendant did not put forward the relevant claim or statement of reservation at the time of settlement, and after the completion of the project settlement, the claim of the claim of the other party's previous breach of contract was not supported by the Court in accordance with the law....... 4. Lawyer's View Our lawyers believe that at the time of settlement of the project, if the contractor does not make a relevant claim or declare that it reserves the right to claim, the contractor has no right to claim for the matters before settlement after the completion of the settlement. Specific analysis is as follows: First, Article 14 of the Interim Measures for the Settlement of Construction Project Prices stipulates: "After the completion of the project, the two parties shall settle the completion of the project in accordance with the agreed contract price and the contents of the contract price adjustment and the claims". Article 9.13.6 of the Code for Valuation of Bill of Quantities of Construction Projects stipulates: "After the contracting parties have handled the completion settlement in accordance with the contract, it shall be deemed that the contractor has no right to file any claims that occurred before the completion settlement. The contractor shall submit the final settlement application only for the claim after the completion settlement, and the period for filing the claim shall be terminated when the contracting parties terminate the final settlement". Article 14 of the Interim Measures for the Settlement of Construction Prices stipulates that the completion settlement is based on the contract price and the contents of the adjustment of the contract price and the claims. Although Article 9.13.6 of the Code for Valuation of Bill of Quantities of Construction Projects only stipulates that the contractor has no right to claim any claim before the completion settlement to the employer after settlement, the employer, as the other party of the contract, is protected equally according to the stipulation of the the People's Republic of China Civil Code that "all civil subjects have equal legal status in civil activities, equal protection is mainly reflected in two aspects: (1) the unity of civil liability, that is, after civil rights are infringed, the right holders enjoy equal protection methods and liability relief methods, (II) the equality of civil subject relief procedures, therefore, after the rights are infringed, the contractor and the contractor enjoy equal protection methods and liability relief methods". Therefore, the contractor also has no right to claim against the contractor for matters that occurred before the completion of the settlement. Secondly, Article 140 of the the People's Republic of China Civil Code stipulates: "The perpetrator may express or implicitly express his intention. Silence may be regarded as an expression of intention only if there are legal provisions, agreement between the parties or in accordance with the trading habits between the parties". Implicature refers to the fact that the perpetrator does not express his or her intentions through positive behavior, such as written or oral behavior, but rather through behavior. The settlement agreement has the legal attribute of clearing the debt and debt relationship between the contracting parties, and the implied act of the contractor signing the settlement agreement can be presumed that the contractor's rights not declared in the agreement constitute an implied waiver. Therefore, if the contractor does not make a relevant claim or state that it reserves the right to claim at the time of settlement, the contractor shall not have the right to claim for matters prior to the completion of the settlement. Advice from 5. lawyers The construction project settlement agreement has the legal attribute of clearing the creditor's rights and debts of both parties, therefore, the contractor and the contractor should deal with the claim-related matters together or retain the right to claim in the settlement agreement, so as to avoid the occurrence of the event of not being able to claim against the other party after signing the settlement agreement. 6. related cases (I) Suqian Intermediate People's Court of Jiangsu Province-(2020) Su 13 Min Zhong No. 1169 The court of second instance held that when the parties to the construction contract carry out the completion and settlement of the project, they shall, in accordance with the contract, examine whether the other party's performance of the contract conforms to the agreement and make corresponding claims. Claims and amounts shall be approved and processed together with the settlement. Therefore, except for items that are declared reserved due to disputes at the time of settlement, the settlement opinions of the completion settlement report after examination and confirmation by the parties are the final basis for the settlement of the project price by the parties to the contract. If a party does not make a relevant claim or declare a reservation at the time of settlement, the claim shall not be supported in accordance with the law after the completion of the settlement of the project price and the claim shall be made on the basis of the previous breach of contract by the other party. In this case, Jiangsu Construction Engineering delivered the project involved in the case to Guangzhong Company on January 3, 2014. Guangzhong Company and Jiangsu Construction Engineering settled and reached an agreement on February 9, 2015 on the price of part of the project completed by Jiangsu Construction Engineering, and determined that the project settlement price was 158991815.5 yuan. Before the two parties reached an agreement on the settlement, the fact that the project was overdue for completion had been produced, and the liability for breach of contract due to the overdue completion of Jiangsu Construction Engineering had also been determined, but Guangzhong Company did not reserve the right to make relevant claims for the breach of contract by Jiangsu Construction Engineering in the construction process when confirming the settlement approval report. Guangzhong company in the project price settlement 2 years after the settlement of the project price and the existence of overdue completion of the breach of contract before Jiangsu construction, the request is not supported in accordance with the law. (II) People's Court of Wuping County, Fujian Province-(2017) No. 1602 Minchu, Min 0824 The court held that: ...... the parties to the construction contract shall, when settling the construction of the project, examine whether the performance of the contract by the other party is in accordance with the contract and make corresponding claims. Claims and amounts shall be approved and processed together with the settlement. Therefore, except for items that are disputed at the time of settlement and declared to be reserved, the settlement opinions of the completion settlement report after examination and confirmation by the parties are the final basis for the settlement of the project price by the parties to the contract. When a party makes a settlement, it does not make a relevant claim or declare a reservation, and after completing the settlement of the project price, it makes a claim based on the previous breach of contract by the other party, which is not supported by law.

2022-02-16

The civil and commercial perspective... How to determine the ownership of the house at the time of divorce.

Briefing Li Jun (male) and Wang Yi (female) are both post-90s and will get married in 2019. Having a son in 2020, due to the low income of the couple after marriage, they are unable to buy real estate, and Li Jun's hometown is in the countryside, and their parents are unable to help them realize their housing dream. In October 2021, considering their children's schooling, Wang Yi's parents decided to pay a down payment for their only daughter, purchase a school district house, and register it in the names of both parties, and the couple will repay the loan on a monthly basis. In February 2022, Wang Yi believed that the relationship between husband and wife had broken down and wanted to sue the court for divorce, requesting to determine that the ownership of the house belonged to him. Wang Yi consulted the author: Will Wang Yi's claim be supported by the court? Lawyer Analysis Because Wang Yi sued for divorce after the Civil Code came into effect, the provisions of the Civil Code should be applied in this case. According to the relevant provisions of the the People's Republic of China Civil Code, the school district house was purchased by Li Jun and Wang Yi after their marriage and Wang Yi's parents made a down payment for both parties. Li Jun, Wang Yi and Wang Yi's parents did not sign any agreement on the ownership of the house, and Wang Yi had no evidence to prove that the house was a gift to one of them. Because the property is the property donated by Li Jun and Wang Yi during the marriage relationship, it should be recognized as the joint property of husband and wife. Simply put, if there is no agreement, the purchase of a house before marriage is the property of one individual, and the purchase of a house after marriage is the joint property of the husband and wife. In this case, although Wang Yi's mother believed that she had made a down payment to buy a school district house for her daughter, the house should belong to her daughter, and the other party could be compensated for the repayment. However, according to the the People's Republic of China Civil Code and judicial interpretation, the author believes that the law should be recognized as the joint property of husband and wife. Views of the People's Court of the Supreme Court In judicial practice, it often happens that parents pay part of the price (often the down payment) for the purchase of a house for their children after marriage, sign a contract for the sale of the house in the name of the child and register the ownership of the house in the name of one child or the children of both parties, if the two parties do not agree or the agreement is not clear, the down payment of the capital contribution shall be recognized as a gift to both husband and wife in accordance with the principle stipulated in paragraph 4 of Article 1062 of the the People's Republic of China Civil Code. Accordingly, the real estate purchased with the capital contribution as a down payment, whether registered in the name of one of the children or both, shall be regarded as the joint property of the husband and wife. Under normal circumstances, during the existence of the marriage relationship between the parties, one or both parents make a capital contribution to the purchase of a house for both parties, except for the case where the parents clearly indicate that the capital contribution is a gift to their children to purchase a house, according to the principle of the legal joint property system of husband and wife, it should be recognized as the joint property of husband and wife. When the people's court determines the ownership of property after marriage, the people's court shall first apply the legal principle of the joint system of marital income after marriage, that is, the property acquired by one or both of the husband and wife during the marriage relationship belongs to the joint property of the husband and wife. Secondly, it is determined whether it is owned by the husband or wife according to the exclusion. This is also the general principle of the treatment of property acquired by the couple during the marriage. Risk Alert First of all, sign an agreement to give their children and agree on the nature of the contribution. In recent years, the rising house prices to young couples to buy a huge pressure. When young couples buy a house, it is common for capable parents to help their children make up the down payment and for young couples to repay the loan together. In most cases, parents are often because of their feelings. When buying a house for their children, they will not clearly agree on the nature of their capital contribution, nor will they sign relevant agreements with their children. As a result, when their children divorce, the two parties will have a problem with the ownership of the house. Dispute over the issue. In order to prevent risks, the author suggests: when buying a house after marriage, if one of the parents contributes, it is best for the parents, children and children's spouse to sign a written agreement together, clearly agreeing on the nature of the contribution, whether it is a loan or a gift. If it is a loan, you need to agree on a repayment period and interest. If it is a gift, it is also necessary to agree whether it is a gift to one's own children or to both husband and wife. Otherwise, once a divorce occurs, it will be determined as the joint property of the husband and wife according to the provisions of the law and judicial interpretation. Secondly, when signing the agreement, we should pay attention to distinguish whether the parents' contribution is partial or full. The judicial interpretation of the original "the People's Republic of China Marriage Law" stipulates different attribution for the purchase of a house with partial capital contribution and full capital contribution by the parents, but the "Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Section of the the People's Republic of China Civil Code" does not clearly stipulate, and the author suggests that when signing an agreement, attention should also be paid to distinguish between full capital and partial capital contribution. Links to relevant laws 1. Article 29 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 stipulates that before the parties get married, if the parents contribute to the purchase of houses for both parties, the contribution shall be recognized as a personal gift to their children, except where the parents explicitly indicate that the gift is given to both parties. After the parties get married, if the parents contribute to the purchase of houses for both parties, they shall be dealt with in accordance with the agreement; if there is no agreement or the agreement is not clear, it shall be dealt with in accordance with the principles stipulated in the fourth paragraph of Article 1062 of the Civil Code. 2. Article 1062 of the the People's Republic of China Civil Code stipulates that the following property acquired by the husband and wife during the existence of the marriage relationship shall be the joint property of the husband and wife and shall be jointly owned by the husband and wife: (I) wages, bonuses, remuneration for labor services; income from (II) production, operation and investment; income from the (III) of intellectual property rights; property inherited or donated by the (IV), except as provided for in paragraph 3 of Article 1063 of this Law; (V) other property that should be jointly owned. Husband and wife have equal rights to dispose of common property.

2022-02-15

Legal Application Practice. The priority of advance registration in banking business from the perspective of the Civil Code (below)

Abstract: The Supreme People's Court on the application<中华人民共和国民法典>After the promulgation of the Interpretation of the Guarantee System (hereinafter referred to as the "Interpretation of the Guarantee System"), the advance notice registration and this registration have been fully connected. Under the circumstances that the building has the conditions for the first registration of ownership, the advance notice registration is valid and the property registered in advance notice is consistent with the property registered for the first time, it is presumed that the obligee of the advance notice registration has the same effect as that of mortgage registration. Advance registration presumption of the establishment of a mortgage, the effectiveness of the stage guarantee. Typically, in order to secure the realization of the creditor's claim, the developer or the security company is often liable for the creditor in stages during the period from advance registration to mortgage registration. After the interpretation and implementation of the security system, if the provisions of Article 52 are met, the mortgage is presumed to be established and the creditor has priority. At this time, there are two major controversies in practice regarding the disposition of phased guarantees: 1. One view is that the stage guarantee of the developer or guarantee company and the creditor's acquisition of real estate mortgage belong to the undertaking relationship, and if the creditor obtains the mortgage right, the stage guarantee liability is exempted. Such: (1) Qingdao Intermediate People's Court of Shandong Province (2021) Lu 02 Min Zhong No. 8922: Liu Xia, Qingdao Green City Huajing Real Estate Co., Ltd. and Industrial Bank Co., Ltd. Qingdao Branch Financial Loan Contract Dispute Civil Second Instance Civil Case Judgment "The original intention of the establishment of the phased guarantee is to reduce the risk of debt settlement due to incomplete registration of formal property rights, to encourage developers to complete the development and construction of projects in a timely manner, and to actively assist in the registration of property rights. In this case, Greentown Huajing Real Estate has submitted evidence to prove that it has fulfilled its relevant obligations. The reason why the property involved in the case failed to formally handle the property right registration and mortgage registration is that the property involved was sealed up in another case. Therefore, Greentown Huajing Real Estate has no fault in failing to complete the mortgage registration, and its periodic guarantee liability should be exempted. Therefore, the court supports the appeal claim of Greentown Huajing Real Estate in accordance with the law." (2) Weihai Intermediate People's Court of Shandong Province (2021) Lu 10 Min Zhong No. 1631: China Everbright Bank Co., Ltd. Weihai Branch, Weihai Dongxin Real Estate Co., Ltd. and other civil judgments of second instance on financial loan contract disputes "The Court believes that the focus of this case is whether Everbright Bank has a priority right to compensation for the mortgaged property involved. According to Article 52 of the Interpretation of the Supreme People's Court on the Application of the Relevant Guarantee System, after the parties have registered the mortgage advance notice, the advance notice registration obligee requests priority compensation for the mortgaged property. After examination, there are cases where the first registration of building ownership has not been completed, the property registered in advance notice is inconsistent with the property at the time of the first registration of building ownership, and the mortgage advance notice registration has expired, the people's court shall not support it; if the first registration of the ownership of the building has been completed after examination, and there is no failure of the advance notice registration, the people's court shall support it and shall determine that the mortgage right is established from the date of advance notice registration. After trial, it was found that the real estate involved in the case went through the advance registration of the mortgage right of the pre-purchased commercial housing on November 19, 2015, and Dongxin Real Estate has gone through the first registration of the ownership of the building, and there is no case that the advance registration is invalid, so the mortgage of the real estate involved The right was established from the date of advance registration. The court of first instance held that Everbright Bank did not enjoy the priority of the property involved in the property and should be corrected. As for the question of whether the guarantee liability of Dongxin Real Estate is exempted. According to the contract involved in the case, the phased guarantee of Dongxin Real Estate starts from the date of signing the contract to the date when the mortgagor has effectively established a mortgage on the mortgage, and the relevant mortgage right certificate and relevant supporting documents for setting the mortgage are delivered to the lender for formal management. According to the law, the mortgage right of the real estate involved in the case has been established from the date of advance notice registration, and Dongxin Real Estate should no longer bear joint and joint guarantee liability, however, since Dongxin Real Estate did not raise a defense in the original trial and did not file an appeal after the judgment of the first instance, it was regarded as a waiver of the right, and the court did not review the defense of Dongxin Real Estate." 2. Another view is that the stage guarantee should be terminated according to the contract agreement: if it is a conditional discharge, the establishment of the presumption of the mortgage does not mean the substantive establishment of the mortgage, and the stage guarantor should still bear the responsibility for the guarantee. Such: Henan Zhengzhou Intermediate People's Court (2021) Yu 01 Min Zhong No. 9445: Industrial Bank Co., Ltd. Zhengzhou Branch, Zhang Wei and Other Financial Loan Contract Disputes Civil Second Instance Civil Judgment "The focus of the dispute in this case is whether the conditions for the release of the guarantee liability of the harmonious company as agreed in the Personal Purchase Mortgage (Guarantee) Loan Contract have been achieved. The case involves the "Personal Purchase Mortgage (Guarantee) Loan Contract" stipulates that if the debtor has completed the registration procedures of the house ownership certificate and the mortgage of the house with the creditor as the mortgagee, the guarantor's guarantee liability shall be discharged from the date when the debtor hands over the original mortgage certificate of the house to the creditor's right. However, the guarantor shall still be liable for the obligations of the debtor due before that date and the obligations under this contract arising from the default of the guarantor or/and the debtor before that date. The agreement is specific and clear, including two levels of meaning: First, the borrower has completed the house ownership certificate involved in the case and completed the house mortgage registration procedures with the lender as the mortgagee, which guarantees the termination conditions attached to the legal relationship for Harmony Company; Second, for the debts that have expired before that date, and the debts under this contract caused by the guarantor or/and the borrower's default before that date, the guarantor shall still bear the corresponding liability for breach of contract or guarantee liability, which means that in the event of a breach of contract by Harmony Company, a breach of contract by the borrower or both, Harmony Company shall not be relieved of the claim to waive the guarantee liability by stage joint and several guarantee liability. In this case, the house involved has not yet completed the house ownership certificate, and the conditions for the release of Harmony Company's guarantee liability have not been fulfilled, so Harmony Company should still bear joint and several guarantee liability for the loan involved." In response to the above-mentioned disputes, our lawyers prefer the first view, from the point of view of trading habits and contractual purposes, the purpose of establishing a phased guarantee is to protect the rights of creditors rather than to increase the burden of the phased guarantor. If the creditor's rights have been determined by other means, the purpose of the establishment of the phased security has been achieved, the basis of its existence has been lost, and the role of the real estate mortgage has been completed. Therefore, when financial institutions, small loan companies or other entities (hereinafter referred to as "obligees") act as creditors, they should exercise their rights in a timely manner, and actively urge mortgagors and developers to assist in mortgage registration when conditions are met, so as to avoid the loss of rights. The above opinion does not exclude the possibility that the court in judicial practice determines whether the stage guarantor is exempt from the liability of the guarantee after the right holder obtains the priority of the mortgage involved in the case on the basis of the specific agreement in the stage guarantee contract. Other views based on case search: if the real estate involved in the case is pre-sealed by the court after the advance registration, can the right holder of the advance registration continue to register the mortgage? Case: Jiangsu Higher People's Court (2018) Su Min Zai No. 100: Civil Judgment of Retrial of Disputes over Financial Loan Contract between Nanjing Renheng Real Estate Co., Ltd. and Nanjing Hubei Road Sub-branch of China Everbright Bank Co., Ltd. and Wan Xinjing Viewpoint: The right holder of the advance notice registration of the mortgage right does not have the right of priority compensation. However, the house involved in the case was pre-sealed by the court after the advance registration of the mortgage, which did not affect the registration of the mortgage. Mortgage advance registration rights holders may, after formal registration, according to the mortgage on the case-related housing priority compensation. The referee stated that the house involved in the case was pre-sealed by the court after the advance notice registration of the mortgage right, which did not affect the registration of the house mortgage right and the Hubei Road Branch of Everbright Bank gave priority to the compensation of the house involved in the case. First, the advance registration of mortgage rights is designed to enable creditors to determine the acquisition of mortgage rights after the corresponding conditions are met, and if it is considered that after the real estate has been seized or pre-seized, the advance registration of mortgage rights cannot be converted into mortgage registration even if the conditions are met, it is clearly contrary to the purpose of advance registration. Second, even if the pre-registration of mortgage rights on the seized or pre-seized real estate is converted into mortgage registration, it will not affect the effectiveness of the seizure or pre-seizure, and will not harm the interests of the applicant. Third, before the seizure or pre-seizure, the advance notice registration of mortgage rights that can be converted into mortgage registration in the future has been publicized through advance notice registration, and according to the law, the advance notice registration of mortgage rights can be converted into mortgage registration when conditions are met. This transformation based on the nature of registration in the first place does not constitute an obstruction to the court's enforcement measures. Therefore, although the "Real Estate Registration Data Inquiry Result Certificate" shows that after the advance notice registration of the housing mortgage involved in the case on July 23, 2014, the People's Court of Yuhuatai District, Nanjing City, Jiangsu Province and other courts seized the housing involved in the case, but it does not affect the case. The exclusive effect of the advance notice registration of the housing mortgage, the aforementioned seizure does not affect the priority of the housing compensation of Everbright Bank Hubei Road Branch. Relevant legal advice In summary, in order to protect the realization of the right holder's claim, it is recommended that the right holder, when registering the advance mortgage: 1, strictly abide by the internal business norms, to ensure that the mortgagee, the right holder signed the pre-mortgage/mortgage guarantee contract is the true intention of both parties; 2. Timely update the terms of the developer's phased guarantee contract according to the latest judicial practice, such as increasing the conditions that the developer should meet to exempt the phased guarantee liability, and clarifying that for whatever reason, the developer should continue to bear the phased guarantee liability if there is no formal mortgage registration of the creditor's rights; 3. Check whether the property registered in advance is the same as the property at the time of the first registration of the ownership of the building; 4. In accordance with Article 221 of the Civil Code and the interpretation of the guarantee system, after the advance mortgage registration and the first registration of the building, promptly urge the mortgagor and the developer to assist in the registration of the real estate mortgage, and retain the relevant evidence to urge the mortgagor and the developer to register the real estate mortgage; 5. During the period of advance notice registration, follow up the status of the mortgage involved in the case in a timely manner. For the sake of insurance, the formal mortgage registration shall be completed within 90 days from the date when the real estate registration can be carried out after the advance notice registration.</中华人民共和国民法典>

2022-02-14

(IV) of the Vision of Administrative Litigation | The Suitable Defendant of Administrative Litigation

Foreword The defendant in administrative litigation refers to the administrative subject who is sued by the plaintiff for infringement of his or her legitimate rights and interests in administrative law or has an administrative dispute with it, and the people's court notifies the administrative subject of the response. The determination of the competent defendant determines which administrative subjects can be notified by the people's court to participate in the litigation, and the defendant's suitability is a prerequisite for the plaintiff to initiate the administrative litigation procedure to safeguard their legitimate rights and interests, and must have both formal and substantive elements. The Connotation of the Defendant's Eligibility in 1. Administrative Litigation The issue of the defendant's qualification is covered by the participants in the proceedings and is the basis for the court to accept administrative litigation cases. The defendant in administrative litigation includes not only the administrative organ that made the administrative act, but also the reconsideration organ and the organization entrusted with the implementation of the administrative act. It determines the circumstances under which an administrative organ or an entrusted organization can be a competent defendant in administrative proceedings, and which administrative organ or entrusted organization should be the defendant under different circumstances. The defendant's eligibility has two levels of meaning. The first level of meaning is formal fitness. The second paragraph of Article 49 of the "Administrative Litigation Law" stipulates that "there is a clear defendant". The so-called "there is a clear defendant" means that the indictment points to a specific and specific administrative agency being sued. However, "clear" does not mean "correct". Therefore, the second meaning of the defendant's suitability is substantive suitability, that is, "citizens, legal persons or other organizations directly report to the people's court" as stipulated in the first paragraph of Article 26 of the Administrative Procedure Law. If a lawsuit is filed, the administrative agency that made the administrative act is the defendant ". According to the third paragraph of Article 49 of the Administrative Litigation Law, the filing of a lawsuit should "have a specific claim and factual basis". The "factual basis" here includes the relevant factual basis for the defendant to "make an administrative act", which specifically means that the accused administrative organ has made the accused administrative act. 2. can be the subject of the defendant in administrative proceedings. According to the current Administrative Procedure Law, the subjects that can be used as defendants include: An administrative organ (I) to make an administrative act. According to the first paragraph of Article 26 of the administrative procedure law, if a citizen, legal person or other organization directly brings a lawsuit to the people's court, the administrative organ that made the administrative act shall be the defendant. The "administrative organs" here include governments at all levels below the provincial level and administrative departments at all levels that exercise administrative functions in accordance with the law. (II) administrative reconsideration organs. According to the provisions of the second and third paragraphs of Article 26 of the Administrative Procedure Law, it can be divided into the following situations: The first situation is: after reconsideration of the case, the reconsideration organ decided to maintain the original administrative act, the administrative organ that made the original administrative act and the reconsideration organ are co-defendants; The second situation is: after reconsideration, the reconsideration organ changes the original administrative act, the reconsideration organ is the defendant; The third situation is: the reconsideration organ has not made a reconsideration decision within the statutory time limit, and if a citizen, legal person or other organization sues the original administrative act, the administrative organ that made the original administrative act is the defendant; The fourth situation is: if the reconsideration organ fails to make a reconsideration decision within the statutory time limit, and a citizen, legal person or other organization sues the reconsideration organ for inaction, the reconsideration organ is the defendant. The administrative reconsideration organ can be simply understood as the superior organ of the administrative organ that makes the administrative act. The specific scope needs to be defined according to the Administrative Reconsideration Law and the Administrative Reconsideration Law Implementation Regulations. Organizations authorized by (III) laws, regulations and rules According to the provisions of the first paragraph of Article 2 of the Administrative Litigation Law, citizens, legal persons or other organizations that believe that the administrative acts of administrative organs and their staff infringe upon their legitimate rights and interests shall have the right to bring administrative proceedings to the people's courts in accordance with this Law. At the same time, the second paragraph of this article stipulates that the administrative acts referred to in the preceding paragraph include administrative acts made by organizations authorized by laws, regulations, and rules. It can be seen that under certain conditions, organizations authorized by laws, regulations, and rules can also become defendants under the Administrative Procedure Law. Combined with the Supreme People's Court on the application of<中华人民共和国行政诉讼法>(hereinafter referred to as the "Applicable Interpretation"), these "organizations" include: 1. Village Committee and Neighborhood Committee According to the provisions of the first paragraph of Article 24 of the "Applicable Interpretation", if a party refuses to accept the villagers' committee or residents' committee's performance of administrative duties in accordance with the authorization of laws, regulations, and rules, the villagers' committee or residents' committee shall be the defendant. In other words, the village committee or neighborhood committee can perform administrative duties when authorized by laws, regulations, and rules. In this case, it can also become a suitable defendant in administrative litigation. 2. Institutions and industry associations Generally speaking, institutions have no administrative functions. However, under the premise of the authorization of laws, regulations and rules, it should be treated according to the situation. According to the provisions of the third paragraph of Article 24 of the applicable interpretation, if a party refuses to accept the administrative acts carried out by institutions of higher learning and other institutions, as well as bar associations, associations of certified public accountants and other trade associations in accordance with the authorization of laws, regulations and rules, the public institution or trade association shall be the defendant. Internal institutions or agencies authorized by (IV) laws, regulations and rules According to the provisions of Article 20 of the applicable interpretation, if an internal agency, dispatched agency or other organization of an administrative organ authorized by laws, regulations or rules to exercise administrative functions and powers performs an administrative act beyond the scope of legal authorization, if the party concerned refuses to accept the lawsuit, the institution or organization that performs the act shall be the defendant. Therefore, the internal agencies and dispatched agencies of administrative agencies authorized by laws, regulations, and rules to exercise administrative powers can also become eligible defendants. (V) the development zone management institutions and their subordinate functional departments approved by the provincial government or above According to the provisions of Article 21 of the applicable interpretation, if a party refuses to accept the administrative act made by the administrative agency of the development zone approved by the State Council or the provincial people's government, the administrative agency of the development zone shall be the defendant; if the administrative act made by the functional department of the administrative agency of the development zone approved by the State Council or the provincial people's government shall be the defendant, The functional department shall be the defendant. It can be seen that for the development zone management agencies and their functional departments approved by the government at or above the provincial level, they can become eligible defendants when performing administrative functions. (VI) housing expropriation department Article 4 of the "Regulations on Expropriation and Compensation of Houses on State-owned Land" stipulates that the people's governments at the city and county levels are responsible for the expropriation and compensation of houses in their respective administrative regions, and the housing expropriation departments shall organize and implement them. According to the provisions of Article 25 of the interpretation of application, if the housing expropriation department determined by the people's government at the city or county level makes an administrative act in the process of organizing and implementing housing expropriation and compensation, and the expropriated person refuses to accept and file a lawsuit, the housing expropriation department shall be the defendant. At the same time, if the expropriation implementation unit is entrusted by the housing expropriation department and engages in acts within the scope of the entrustment, and the expropriated person refuses to accept the lawsuit, the housing expropriation department shall also be the defendant. This makes it clear that the housing expropriation department is the main body that organizes the implementation of housing expropriation and compensation on state-owned land. If you are not satisfied with the administrative act made by the department or the expropriation implementation unit entrusted by it, the housing expropriation department shall be regarded as the defendant. The Special Circumstance of the Defendant in 3. Administrative Litigation The competent defendant after the (I) administrative organ is revoked or the authority is changed. Paragraph 6 of Article 26 of the "Administrative Litigation Law" stipulates that if an administrative agency is revoked or its powers are changed, the administrative agency that continues to exercise its powers is the defendant. With regard to the situation where there is no successor organ, Article 23 of the applicable interpretation stipulates: "if an administrative organ is abolished or its functions and powers are changed, and there is no administrative organ that continues to exercise its functions and powers, the people's government to which it belongs shall be the defendant; if the administrative organ at the next higher level under vertical leadership is the defendant." Presumption of (II) of the defendant's eligibility Article 25 of the "Applicable Interpretation" stipulates that if the housing expropriation department determined by the municipal or county-level people's government organizes and implements the work of housing expropriation and compensation, and the expropriated person refuses to accept the lawsuit, the housing expropriation department shall be the defendant. If the expropriation implementation unit is entrusted by the housing expropriation department and engages in an act within the scope of the entrustment, and the expropriated person refuses to accept the lawsuit, the housing expropriation department shall be the defendant. In the case of compulsory demolition of houses, the plaintiff shall bear the preliminary burden of proof to the competent defendant, that is, it is necessary to prove that the specific administrative organ has made a decision on expropriation or made a decision on the confirmation of illegal construction and other previous administrative acts. In reality, if the plaintiff cannot provide evidence to prove the specific organization of the compulsory demolition authority due to objective reasons, in order to ensure the plaintiff's right of action, it is presumed in principle that the administrative authority that made the expropriation decision or the illegal building confirmation decision is the compulsory demolition authority unless the decision authority has evidence to prove that the compulsory demolition was indeed committed by other relevant departments or organizations [see (2015) Xing Jian Zi No. 70 case]. When the owner of the house can neither provide evidence to the administrative organ that made the decision of expropriation or forced demolition, nor can he determine the subject of compulsory demolition and no administrative organ takes the initiative to bear the responsibility, the party concerned shall file a lawsuit with the people's government at the city, county and township level as the defendant, and the people's court shall file a case [see (2017) Supreme Law Bank No. 102 case]. (III) to determine the defendant on the basis of the prosecution's choice The third paragraph of Article 26 of the administrative procedure law stipulates that "if the reconsideration organ fails to make a reconsideration decision within the statutory time limit, and if a citizen, legal person or other organization sues the original administrative act, the administrative organ that made the original administrative act shall be the defendant; if the reconsideration organ fails to act, the reconsideration organ shall be the defendant." The term "inaction of the reconsideration organ" here should be understood to include both the failure to make a reconsideration decision within the time limit after acceptance and the inadmissibility of an application for reconsideration. Moreover, inadmissibility includes not only the positive inaction of a written decision not to accept it, but also the negative inaction of whether to accept it or not as punishment [see (2018) Supreme Law Xing Shen No. 9429]. (IV) the qualification of the defendant in administrative litigation of the local people's government at or above the county level The Provisions of the Supreme People's Court on Correctly Determining the Qualification of Defendants in Administrative Litigation of Local People's Governments at or above the County Level (hereinafter referred to as the "Provisions"), which came into effect on April 1, 2021, explains the qualification of defendants in administrative litigation of local people's governments at or above the county level. 1. If laws, regulations and rules stipulate the administrative functions and powers of the functional departments of the local people's governments at or above the county level, and the local people's governments at or above the county level give guidance to their functional departments, and citizens, legal persons or other organizations file a lawsuit against the guidance, the functional department that specifically implements the administrative act shall be the defendant. 2. In accordance with the provisions of the Urban and Rural Planning Law, the local people's government at or above the county level instructs the relevant functional departments to implement compulsory demolition of illegal buildings, compulsory demolition of houses in collective land expropriation, and house expropriation and compensation decisions on state-owned land, citizens, legal persons or other organizations If you refuse to accept the act of compulsory demolition, the administrative agency that made the compulsory demolition decision is the defendant; if there is no compulsory demolition decision, the functional department that specifically implements the compulsory demolition is the defendant. 3. Citizens, legal persons or other organizations apply to the local people's government at or above the county level for the performance of statutory duties or payment obligations. Laws, regulations, and rules stipulate that such duties or obligations belong to the administrative powers of the lower-level people's government or corresponding functional departments. The people's government has transferred it to the lower-level people's government or corresponding functional department for processing and informed the applicant. 4. the defendant is not eligible (I) of ineligibility of the defendant 1. Formal ineligibility. Formal ineligibility is manifested in that the defendant is not specific, unclear or does not meet the provisions of Article 26 of the Administrative Procedure Law and Articles 19 to 25 of the Applicable Interpretation on eligible defendants. Take the judgment of the Supreme Court as an example for analysis: if the party concerned sues that the administrative organ fails to perform its statutory supervisory duties, the administrative organ that directly exercises the supervisory authority shall be the defendant. In the case of (2016) Supreme Law Bank Shen No. 1747, the court held that in accordance with Article 8 of the Banking Supervision and Administration Law and Article 4 of the Measures for the Administration of the Sales of Wealth Management Products of Commercial Banks, the dispatched offices of the China Banking Regulatory Commission have the wealth management products The statutory duty to supervise and manage sales activities. As an independent business legal person, the local banking regulatory bureau has the legal responsibility of supervision according to the authorization of the law, and can bear the legal responsibility independently. If the party concerned mistakenly lists the CBRC as the defendant and still refuses to change to the local banking regulatory bureau after explanation, the people's court may rule not to file the case or reject the prosecution. The case was decided on the basis of Article 20, paragraph 2, of the Applicable Interpretation. 2. Substantial ineligibility. Substantive ineligibility means that the prosecutor or plaintiff has no evidence to prove that the administrative act being sued was made by the administrative organ being sued. In the case of (2016) Supreme Law Application No. 2907, the Supreme Court held that the retrial applicant filed a lawsuit with Qingyun County Government as the defendant, demanding confirmation that Qingyun County Government's administrative coercive act was illegal and requesting administrative compensation. As "there is a clear defendant", the plaintiff also provided preliminary factual evidence. The original court found that the retrial applicant's lawsuit met the legal conditions and accepted it, which not only better protected the plaintiff's right of action, it also provides an opportunity to further establish the facts of the case through verbal hearings. After the trial, the original court held that the evidence and witness testimony provided by the retrial applicant were not sufficient to prove that the Qingyun County Government was substantively qualified, nor was it sufficient to prove that the accused administrative coercive act was carried out by the Qingyun County Government. The court of first instance ruled that the rejection of his claim was in accordance with the law. Consequences of (II) the defendant is not eligible 1. Consequences of inappropriate form and substance. Formal eligibility falls within the scope of the statutory conditions for prosecution, and if the conditions are not met, a ruling shall be made not to file the case or to dismiss the prosecution after filing the case. According to the provisions of the first paragraph of Article 26 of the interpretation of application, if the defendant sued by the plaintiff is not qualified, the people's court shall inform the plaintiff to change the defendant; if the plaintiff does not agree to the change, it shall rule to reject the lawsuit. According to the above-mentioned provisions, on the one hand, the people's court has the obligation to find out ex officio whether the defendant specified in the complaint is a qualified defendant; on the other hand, even if it is not qualified, the people's court should also explain it, instead of directly ruling to dismiss the prosecution on the grounds that the defendant is not qualified. The issue of substantive eligibility is relatively complex and usually needs to be ascertained through a substantive trial, and if the review does not constitute substantive eligibility, the plaintiff's claim is rejected. However, it does not rule out the possibility of a dismissal on the grounds that the prosecution does not meet the statutory conditions before entering the substantive hearing, in the case of a particularly clear lack of substantive eligibility.</中华人民共和国行政诉讼法>

2022-02-11

Legal Application Practice. The priority of advance registration in banking business from the perspective of the Civil Code (above)

Abstract: The Supreme People's Court on the application<中华人民共和国民法典>After the promulgation of the Interpretation of the Guarantee System (hereinafter referred to as the "Interpretation of the Guarantee System"), the advance notice registration and this registration have been fully connected. Under the circumstances that the building has the conditions for the first registration of ownership, the advance notice registration is valid and the property registered in advance notice is consistent with the property registered for the first time, it is presumed that the obligee of the advance notice registration has the same effect as that of mortgage registration. 1. Comparison of Old and New Viewpoints Before the implementation of the (I) Civil Code and the interpretation of the guarantee system. Article 20 of the "the People's Republic of China Property Law" stipulates that "The parties sign an agreement to buy and sell houses or other real property rights. In order to ensure the realization of real rights in the future, they may apply to the registration agency for advance registration in accordance with the agreement. After the advance notice is registered, if the real property is disposed of without the consent of the right holder of the advance notice registration, the effect of the real property shall not occur. After the advance notice registration, if the creditor's rights are extinguished or the registration is not applied for within three months from the date when the real estate registration can be carried out, the advance notice registration shall be invalid." Since the interpretation of the original property law did not provide for the priority of advance registration, according to the traditional point of view, the above-mentioned provisions on advance registration are the right of the property law to grant the right holder of advance registration to request future mortgage registration, is the right to request future mortgage acquisition, belongs to the right of expectation. This means that the right holder does not enjoy the mortgage right in the strict sense at the time of the advance notice registration, and in view of the uncertainty of whether the right holder can finally obtain the mortgage right, its priority compensation right is also in an uncertain state. In previous jurisprudence, courts often do not support the claim of mortgage or priority over real estate through advance notice registration [such as:(2012) Hu Er Zhong Min Liu (Shang) Zhong Zi No. 138 (Supreme Law Gazette Case), Jiangsu Higher People's Court (2018) Su Min Re No. 100, Jilin Higher People's Court (2019) Ji Min Zhong No. 187, Sichuan Higher People's Court (2020) Chuan Min Re No. 318]]. After the implementation of the (II) Civil Code and the interpretation of the guarantee system Article 221 of the Civil Code continues the provisions of the Property Law on advance notice registration of real estate, and further clarifies the application time for advance notice registration: "The parties sign an agreement to buy and sell a house or sign an agreement to sign other real property rights, in order to ensure the realization of real rights in the future, In accordance with the agreement, you can apply to the registration agency for advance notice registration. After the advance notice is registered, if the real property is disposed of without the consent of the right holder of the advance notice registration, the effect of the real property shall not occur. After the advance registration, if the claim is extinguished or if the registration is not applied for within 90 days from the date on which the real estate can be registered, the advance registration shall be invalid." At the same time, the Supreme People's Court issued the Supreme People's Court on December 31, 2020.<中华人民共和国民法典>Article 52 of the Interpretation of the Guarantee System (Fa Shi [2020] No. 28) stipulates: "After the parties go through the mortgage advance notice registration, the advance notice registration right holder requests that the mortgaged property be paid first. After examination, there are situations such as the property that has not been registered for the first time of building ownership, the property registered for the advance notice is inconsistent with the property when the building ownership is registered for the first time, and the mortgage advance notice registration has expired, if the conditions for mortgage registration are not met, the people's court shall not support it; if the first registration of the ownership of the building has been completed after examination, and there is no failure of the advance notice registration, the people's court shall support it, and shall determine that the mortgage right is established from the date of advance notice registration. If the party concerned has gone through the mortgage advance notice registration and the mortgagor is bankrupt, and the mortgaged property belongs to the bankruptcy property after examination, and the obligee of the advance notice registration claims priority compensation for the mortgaged property, the people's court shall support it within the value range of the mortgaged property when accepting the bankruptcy application, except that the debtor establishes mortgage advance notice registration for debts without property guarantee within one year before the people's court accepts the bankruptcy application." Thus, the Supreme Law, through judicial interpretation, affirms that the registration of advance notice of mortgage is equivalent to the effect of mortgage registration under certain conditions, and has the right to claim the right of priority compensation. The application of the interpretation of the 2. guarantee system. The interpretation of the security system does not further explain the expected ownership of advance registration as dealt with in the Civil Code and the original property law, but directly clarifies the effect of advance registration under certain conditions equivalent to mortgage registration, as follows: 1. The building has been registered for the first time. According to the relevant provisions of the the People's Republic of China Civil Code and the Interim Regulations on Real Estate Registration, registration refers to the act of the real estate registration agency recording the ownership of real estate rights and other legal matters in the real estate register in accordance with the law, and the establishment, change, transfer and transfer of real estate rights The elimination takes effect when it is recorded in the real estate register. In practice, the "first registration" of a building refers to the act of registering the ownership of the whole building in the name of the developer after the completion and acceptance of the building, commonly known as "applying for a big certificate"; only the real estate of "applying for a big certificate" can register the real estate with the small owners, And this kind of real estate registration (that is, "applying for a small certificate") by the developer to the buyer is "transfer registration". After the transfer registration, the notice registration right holder can formally register the mortgage with the mortgagor (small owner). In terms of time, after the building is registered for the first time, it means that the building has the conditions for handover and the small owner as the mortgagor can exercise its right to use as the owner. It also means that the initiative to handle the mortgage is in the hands of the mortgagor, and the advance notice registration has the conditions for conversion to formal mortgage registration. At this time, the bank, as the right holder of advance registration, shall promptly urge the mortgagor to register the real estate mortgage. According to the provisions of Article 52 of the interpretation of the guarantee system, if the first registration of the ownership of the building has been completed by the people's court within the validity period of the advance notice registration, the right holder of the advance notice registration shall have the right to claim priority. Since the first registration only makes the building have the conditions for mortgage registration, it does not mean that the mortgage right has been established. In practice, there may be cases where the real estate mortgage cannot be handled due to non-advance registration rights holders. At this time, consideration should be given to whether the advance registration rights holders are at fault. If the mortgage registration fails to be handled due to the fault of the advance registration rights holders, priority can be claimed. The relevant cases are as follows: (1) Qingdao Intermediate People's Court of Shandong Province (2021) Lu 02 Min Zhong No. 8922: Liu Xia, Qingdao Green City Huajing Real Estate Co., Ltd. and Industrial Bank Co., Ltd. Qingdao Branch Financial Loan Contract Dispute Civil Second Instance Civil Case Judgment [Case Involving Property Seized Causing Failure to Handle Mortgage Registration]] "On the focus of the first issue, the case of the" individual purchase mortgage (guarantee) loan contract "is the true intention of the parties, legal and valid. The Supreme People's Court on the application<中华人民共和国民法典>According to the first paragraph of Article 52 of the interpretation of the relevant guarantee system, after the parties have registered the mortgage advance notice, the obligee of the advance notice registration requests priority compensation for the mortgaged property. After examination, the property that has not been registered for the first time, the property that has been registered in advance and the property that has been registered for the first time, and the mortgage advance notice registration has been invalid, The people's court will not support it; if the first registration of the ownership of the building has been completed after examination, and there is no such situation as the failure of the advance notice registration, the people's court shall support it and shall determine that the mortgage right is established from the date of the advance notice registration. The real estate located in Shinan District of Qingdao City has already met the conditions for property right registration, that is, formal mortgage registration. Because it was sealed up by the Huangdao District Supervision Committee of Qingdao City, formal mortgage registration cannot be handled. There is no evidence to prove that the appellee Industrial Bank Qingdao Branch is at fault, and there is no evidence to prove that Industrial Bank Qingdao Branch was not in good faith when signing the contract involved. Although Societe Generale Qingdao Branch did not appeal against the mortgage in this case, it dealt with the mortgage in this case because it involved the issue of the developer's phased guarantee liability." (2) Guangzhou Intermediate People's Court of Guangdong Province (2021) Yue 01 Min Zhong No. 25138: Civil Judgment of Second Instance on Disputes over Financial Loan Contracts such as Guangzhou Agile Real Estate Development Co., Ltd. and Guangzhou Zengcheng Sub-branch of Bank of China Co., Ltd. [Case of Failure to Handle Transfer Registration due to Unauthorized Changes of Property by Owners after First Registration, Mortgage Registration Not Established]] "Third, judging from the specific circumstances of this case, Zengcheng Sub-branch of Bank of China, as a creditor, went through the mortgage advance registration of the property involved in the case shortly after the loan was issued (September 12, 2008) in order to ensure the safety of its financial creditor's rights. However, due to the reasons of Yu Shaozhou and Tang Limei of the two borrowers, the property involved in the case still failed to go through the formalities of property transfer and mortgage registration. The occurrence of this situation is not the fault of the Bank of China Zengcheng Branch, nor is it his subjective will. Fourth, Article 52 of the newly promulgated Interpretation of the Supreme People's Court on the Application of the Relevant Guarantee System stipulates that after the parties have registered the mortgage advance notice, the advance notice registration obligee requests priority to be paid for the mortgaged property. After examination, there are cases where the building ownership has not been registered for the first time, the property registered in advance notice is inconsistent with the property when the building ownership is registered for the first time, and the mortgage advance notice registration has expired, if the conditions for mortgage registration are not met, the people's court shall not support it; if the first registration of the ownership of the building has been completed after examination, and there is no failure of the advance notice registration, the people's court shall support it, and shall determine that the mortgage right is established from the date of advance notice registration. According to Article 3 of the" Several Provisions of the Supreme People's Court on the Effect of Applicable Time "," Civil dispute cases caused by legal facts before the implementation of the Civil Code, where the laws and judicial interpretations at the time did not provide for but the Civil Code did, the Civil Code may apply. Provisions, except for those that obviously derogate from the legitimate rights and interests of the parties, increase the legal obligations of the parties, or deviate from the reasonable expectations of the parties, article 52 of the Interpretation of the Supreme People's Court on the Application of the Relevant Guarantee System is applicable to this case. In this case, the appellant has already registered the ownership of the house involved in the case for the first time, and Zengcheng Sub-branch of Bank of China has set up mortgage advance notice registration for the house involved in the case, and its rights do not have the failure circumstances stipulated in the second paragraph of Article 20 of the the People's Republic of China Property Law, and it has no fault for not registering the mortgage at present. Therefore, the court determines that the mortgage right of Zengcheng Sub-branch of Bank of Bank of Bank of Bank of Bank of China has been established from the bank of China since the mortgage notice notice registration, support the appellant's appeal that the Bank of China Zengcheng Branch has obtained the right to priority compensation for the property involved." 2, the existence of a valid advance registration or advance registration with the conditions for mortgage registration. According to the provisions of Article 221 of the Civil Code, if the creditor's rights are extinguished or the registration is not applied for within 90 days from the date when the real estate registration can be carried out, the advance notice registration shall be invalid. From the point of view of the interpretation of the legislative purpose, the change of the notice registration to the increase of the time limit on the mortgage registration is conducive to the protection of the determined state of property rights, and urge the notice registration right holders to actively exercise their rights. If the right holder neglects the formal right, he loses the priority. The relevant cases are as follows: (1) Shandong Haiyang Municipal People's Court (2021) Lu 0687 Minchu No. 3734: Civil First Instance Civil Judgment on Disputes over Financial Loan Contracts such as Haiyang Sub-branch of Bank of China Limited and Qiao Zhehao [The obligee of advance notice registration failed to handle mortgage registration in time after the first registration of building ownership, resulting in the expiration of advance notice registration]] Regarding the Bank of China Haiyang Branch on the pre-mortgage property involved in the case after the discount, auction, sale of the price whether to enjoy the priority of compensation. The Court believes that according to the relevant provisions of the "the People's Republic of China Property Law", because the house involved in the case has not gone through the formal mortgage registration, the Bank of China Haiyang Branch does not enjoy the priority of compensation. Article 52 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System of the the People's Republic of China Civil Code stipulates that "after the parties have registered the advance notice of mortgage right, the obligee of the advance notice registration requests priority to be paid for the mortgaged property. After examination, there are situations such as the first registration of building ownership, the inconsistency between the property registered in advance notice and the property registered in the first registration of building ownership, and the mortgage advance notice registration has expired, if the conditions for mortgage registration are not met, the people's court shall not support it; if the first registration of the ownership of the building has been completed after examination, and there is no failure of the advance notice registration, the people's court shall support it and shall determine that the mortgage is established from the date of the advance notice registration." According to this regulation, two conditions must be met for the property that has been registered for the advance notice of mortgage to enjoy the priority of compensation, that is, the building has been registered for the first time, and there is no failure of the advance notice registration. At the same time, according to relevant regulations, after the advance notice registration, If the registration is not applied for within three months from the date when the creditor's rights are extinguished or the real estate registration can be carried out, the advance notice registration, the advance notice registration shall be invalid. Specific to this case, the house involved in the case went through the first registration of building ownership on April 20, 2020. So far, the conditions for handling the property right certificate and mortgage registration have been met. However, it has been more than three months since the time. The house involved in the case still has not gone through the mortgage registration, and the mortgage advance notice registration has expired. Therefore, the house does not meet the provisions of the Supreme People's Court on the application of the relevant guarantee system of the the People's Republic of China Civil Code of the People's Republic of China, and therefore does not meet the conditions for the right of priority compensation. For the Bank of China Haiyang Sub-branch of the request, the Court does not support. (2) Shandong Jining Intermediate People's Court (2021) Lu 08 Min Zhong No. 4297: Shandong Huaruiyuan Real Estate Development Co., Ltd. and Zhang Hu, Zhang Chengkai and other financial loan contract disputes civil judgment of second instance [the obligee of advance notice registration failed to handle mortgage registration in time after the first registration of building ownership, resulting in the expiration of advance notice registration]] On the question of whether the plaintiff has a priority right to pay the mortgaged property. The mortgage of real estate shall be registered, and the mortgage right shall be established at the time of registration. The second paragraph of Article 20 of the "the People's Republic of China Property Law" stipulates that after the advance notice registration, if the creditor's rights are extinguished or the registration is not applied for within three months from the date when the real estate registration can be carried out, the advance notice registration shall be invalid. In this case, the mortgaged property provided by the defendants Zhang Hu and Zhang Chengkai (No. 02-0102, Floor 1, Unit 02, Building 10, Shengjing Xiyuan Plot B, Southeast Huacheng) was registered only on June 6, 2019. After the defendant Huaruiyuan Real Estate Company registered the ownership of "Building 10, Shengjing Xiyuan Plot B, Southeast Huacheng" for the first time on November 27, 2019, 2019, the conditions for handling the property certificate and other certificates. Because both the plaintiff and the defendant failed to register the real estate mortgage within three months from the date when the real estate registration was able to be carried out, according to the above-mentioned legal provisions, the advance notice registration of the real estate mortgage involved in the case has become invalid. The Supreme People's Court on the application<中华人民共和国民法典>According to Article 52 of the interpretation of the relevant guarantee system, after the parties have gone through the mortgage advance notice registration, the obligee of the advance notice registration requests priority compensation for the mortgaged property. After examination, the property that has not been registered for the first time, the property registered in advance notice is inconsistent with the property at the time of the first registration of building ownership, and the mortgage advance notice registration has been invalid, The people's court will not support it.</中华人民共和国民法典></中华人民共和国民法典></中华人民共和国民法典></中华人民共和国民法典>

2022-02-11

Legal Viewpoint... How to divide the stock purchased by one party before marriage in the event of divorce.

Basic case Ms. Li and Mr. Wang are in free love. They registered for marriage in October 2010 and have a son after marriage. Ms. Li filed a lawsuit with the court in May 2020, claiming that the relationship between the couple had broken down and requesting a divorce. Mr. Wang said the relationship is not broken, do not agree to divorce. The court ruled against divorce. Six months after the verdict came into effect, Ms. Li filed a divorce lawsuit again, requesting a divorce and raising a legitimate child. Mr. Wang agreed to the divorce and agreed that the legitimate child would be raised by Ms. Li and that she would pay monthly support, but asked to split the market value of the shares purchased by Ms. Li before marriage in the fund account of a securities business department of a certain securities company limited. &middot; Lawyer's Views The author represents Ms. Li, in the process of receiving Ms. Li, the author told Ms. Li that if the stock account set up before marriage did not buy and sell after marriage, the value-added part of the stock belongs to the natural value-added, the other party has no right to divide. If there is a buy and sell, and the time and energy spent to maintain the value of the stock, the other party has the right to divide the value-added part. Ms. Li told the author that after marriage, buying and selling frequently, and the amount of value added is very large. So the author according to the actual situation of the case analysis of the stock should be owned by Ms. Li, but Ms. Li needs to pay half of Mr. Wang's stock appreciation. &middot; Views of the People's Court of the Supreme Court The key to how to define whether the value-added portion of the stock purchased before marriage is the joint property of the husband and wife is whether the stock account has been moved after marriage. If the stock account has not been moved, it is the purchaser's premarital property and the other party has no right to request a division of the value-added portion; if the stock account has been operated and managed after marriage, the value-added shall be treated as the joint property of the husband and wife, and the other party may request a division of the value-added portion. Value added is the increase in price of a thing or right. According to the causes of value-added, it can be divided into natural value-added and active value-added. Natural value-added means that the value-added occurs as a result of inflation or changes in market conditions, and has nothing to do with whether one or both spouses put material, labor, effort, management, etc. into the property. For example, the house, antiques, calligraphy and painting, jewelry, gold, etc. owned by the husband and wife before marriage are increased in value due to the increase in market prices during the marriage relationship. Active value-added means that the reason for the value-added is not only inflation or changes in market conditions, but also related to the labor, investment, management, etc. paid by one or both spouses to the property. For example, the value-added part of the pre-marital house of the husband and wife due to the decoration during the marriage relationship. Specific to the issue of stock appreciation, the reasons for stock appreciation should be analyzed. If the stock is held before marriage and has not been operated, the value-added of the stock is entirely caused by changes in market conditions, and this value-added should be understood as natural value-added, and it is more appropriate to identify it as personal property before marriage by applying the provisions of Article 26 of the Judicial Interpretation I of Marriage and Family. If the stock has been bought and sold many times after marriage, it is more appropriate to understand the appreciation of the stock as an investment behavior. Because in this case, the appreciation of the stock often requires one of the husband and wife to invest a lot of time and energy, and its income often depends on the management of the stock speculator, which requires the other party of the husband and wife to pay more in other aspects, such as the upbringing of children and the income of family daily expenses. If it is unilaterally understood as natural appreciation, it may be unfair. And in real life, there are professional stock speculators, who specialize in stock speculation, or simply rely on stock speculation income to survive, if the value-added income of the stock does not distinguish the situation, all as the property of one of the husband and wife, will not be conducive to the protection of the rights and interests of the other party. Therefore, it is more appropriate to understand the return on stocks as the return on investment operations. Investment is divided into direct investment and indirect investment. Direct investment refers to the direct investment of money or in kind in the production and operation activities of an enterprise, and its investment income is usually accompanied by the investor's business behavior, and the income obtained by this investment method is usually known and accepted as the joint property of the husband and wife. Indirect investment is more hidden, it does not directly invest in enterprises, its income is usually not directly related to the business activities of enterprises, mainly in the purchase of stocks, bonds, investment funds and other securities to obtain dividends, dividends, fund investment income and the difference between the transfer of the above-mentioned securities and the deduction of principal. In this case, the proceeds of the appreciation of the stock as an indirect investment should belong to the joint property of the husband and wife, and the other party may of course request a division. &middot; The court of first instance held As of the plaintiff's lawsuit, the market value of the shares in the capital account of a securities business department of XXX Securities Co., Ltd. was 349768 yuan. The account was opened in 2009 and the market value was 55555 yuan at the time of opening the account. As both parties did not provide a transaction list and the shares rose or fell, the current market value could not distinguish between income, interest and natural appreciation. Defendant Wang received half of the market value of the account, that is, 174884 yuan. &middot; Second instance Ms. Li appealed against the verdict. In the second instance, after court mediation, Mr. Wang only got half of the stock appreciation, that is, 147106.50 yuan. &middot; Legal provisions 1. Article 1062 of the the People's Republic of China Civil Code stipulates: "The following property acquired by the husband and wife during the existence of the marriage relationship shall be the joint property of the husband and wife and shall be jointly owned by the husband and wife: (1) wages, bonuses and remuneration for labor services; Income from (II) production, operation and investment; Income from (III) of intellectual property rights; Property inherited or donated by the (IV), except as stipulated in Item 3 of Article 1063 of this Law; (V) other property which shall be owned jointly. Husband and wife have equal rights to deal with common property." 2. Article 26 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 stipulates: "The income generated by the personal property of one spouse after marriage shall be recognized as the joint property of the husband and wife, except for fruits and natural appreciation."

2022-02-09