The lawsuit of objection to execution and the lawsuit of the outsider applying for retrial and the third party's revocation.

Article 227 of the Civil Procedure Law stipulates that in the course of execution, if an outsider raises a written objection to the subject matter of execution, the people's court shall examine it within 15 days from the date of receipt of the written objection, and if the reason is established, it shall rule to suspend the execution of the subject matter; if the reason is not established, the ruling shall be rejected. If an outsider or party to the case is not satisfied with the ruling and believes that the original judgment or ruling is wrong, it shall be handled in accordance with the trial supervision procedure; if it has nothing to do with the original judgment or ruling, it may bring a lawsuit in a people's court within 15 days from the date of service of the ruling. As a result, two major systems of relief for outsiders in the execution phase have been formed: the lawsuit of the outsider's execution objection and the application for retrial by the outsider. According to Article 56 of the Civil Procedure Law, the third party who has the right of independent claim and the third party who has no right of independent claim have not participated in the lawsuit because they cannot be attributed to themselves, but there is evidence to prove that part or all of the contents of the legally effective judgment, ruling or mediation statement are wrong, thus damaging their civil rights and interests, within 6 months from the date when it knows or should know that its civil rights and interests have been damaged, it may bring a lawsuit to the people's court that made the judgment, ruling or mediation statement. Judging from the above provisions, the application for retrial by an outsider and the revocation of a third party are ordinary civil litigation, and the result of the litigation does not have the legal effect of excluding enforcement. The appeal of the outsider to enforce the objection does not negate the effective judgment instrument as the basis for enforcement, but only raises an objection to the subject matter of enforcement, with the aim of excluding enforcement. On the other hand, the lawsuit of the outsider applying for retrial and the third party's revocation holds that the effective legal instrument as the basis of enforcement is wrong, and the intention is to revoke or change the original effective legal instrument. In practice, the more controversial issue is whether the priority right holder, such as the security right, applies for enforcement on the basis of the effective decision after the effective judgment confirms its priority, and the outsider raises an objection, whether the remedy should be filed against the enforcement objection or apply for a retrial. For example, the treatment of objections raised by consumer buyers against the application for enforcement of the mortgage based on the effective judgment. In this case, if an objection is raised against the judgment itself, for example, if the mortgage is considered untenable or invalid or the mortgage is falsely established, the outsider has an objection to the content of the judgment itself, and he can apply for a retrial or a third party to cancel the lawsuit. On the contrary, if the existence of the mortgage is recognized and the right is considered to take precedence over the mortgage, he will raise an objection to the subject matter of execution, an action of objection to enforcement should be brought rather than a retrial or a third-party revocation.

2021-12-31

On the identification of subjective knowledge of drug crime

[内容摘要]明知是犯罪故意的认识因素，一切故意犯罪成立必须具备的主观要件。明知的认定，不能单纯依靠犯罪嫌疑人、被告人的供述或者辩解，必须通过其他证据予以证明。明知以证明明知为常态，以推定明知为例外。推定明知的基础事实必须得到严格证明，应限缩解释基础事实和推定事实之间的常态联系，准确适用刑事推定的反驳事由。     [关键词] 毒品犯罪 应当知道 证明明知 推定明知 我国刑法坚持主客观相统一，明知作为行为人的主观心理事实，是犯罪成立的前提条件。我国刑法学界对于毒品犯罪明知的理解有较大分歧，明知认定也是长期困扰刑事司法实践的难题之一，控辩双方往往针对这一问题展开针锋相对的论争。 一、问题的提出 案例一：箱包藏毒案 甲为下岗工人，后结识某“老板”，受雇去云南运送玉石，路上费用全包，另每日付工资100元。甲先后与“老板”到云南运送‘玉石’两次，得款2000元。某日，甲在“老板”带领下，到达云南，与乙接头，乙在宾馆将一个装着两盒玉镯的黑色行李包交给甲，并当场把玉石从包中拿出来让甲作了验收。甲在机场安检时被发现，其托运行李包夹层内被查获大量海洛因，一审法院认定甲构成运输毒品罪。甲不服，提出上诉。二审期间，“老板”被抓获，据其供述，甲对藏在行李包夹层中的毒品确不知情，二审法院以事实不清、证据不足为由，发回重审。重审期间，“老板”的供述出现反复，他说，甲应该知道运输的是毒品，只不过大家没有讲明这件事。原一审法院据“老板”供述，结合甲接到行李箱后，由“老板”探路，绕路前行的行为再次判处甲成立运输毒品罪，后二审法院作出无罪判决。本案需厘清以下问题：一是毒品藏在行李包夹层中能否适用推定；二是如果能够适用推定，本案是否符合推定的基础事实；三是假设符合推定的基础事实，被告人又是否作出了“合理解释”或者“有证据证明确属被蒙蔽”？ 案例二：网络包裹案 被告人乙与他人合谋，由他人以联系业务为名与我国某公司员工丙取得联系，以邮寄样品为名将毒品走私入境。后包裹从某国被邮寄给乙。同年2月7日，某市海关驻邮局办事处从该包裹内的菜谱中查获毒品可卡因若干。后被告人乙与丙联系，让丙将该菜谱寄往广东省广州市某地址。同月22日，被告人在该地签收邮件后被当场抓获。被告人与辩护人都坚称主观上不明知包裹内藏有毒品，现有证据不能证明被告人就是包裹的所有人或接收人。该案依照现有证据能否认定被告人成立走私毒品罪？ 犯罪构成与诉讼证明是刑事实体法与刑事程序法的交叉领域，而主观要件明知的证明与推定是其中的重要内容。毒品类犯罪的成立要求行为人明知走私、贩卖、制造、运输、持有的对象是毒品，犯罪嫌疑人、被告人主观心态最直接的证明方式就是犯罪嫌疑人、被告人的供述，但在行为人否认“明知是毒品”的情况下，检控机关无疑面临巨大的诉讼风险，2009年至2011年间，云南省有30多件箱包藏毒案件未作犯罪处。【1】这也成为辩护律师辩护的有利争点。 二、毒品犯罪明知的基本要义     （一）何谓“明知”？ 明知是一种心理事实，从刑法角度，行为人的主观明知是指行为人对自身行为性质、行为客体、行为结果以及某些特定事实的自我认知。在我国犯罪论体系中，明知是犯罪故意的认识因素，是一切故意犯罪成立必须具备的主观要件。刑事立法中的明知可分为刑法总则中的明知与刑法分则中的明知。我国刑法第14条为刑法总则“明知”的规定，刑法总则的“明知”包含明知危害社会的结果必然发生与可能发生，并不仅体现在直接故意，间接故意之中也可能存在明知。我国刑法分则中亦规定大量的“明知”，截止目前共涉及36个条文、41个罪名。明知有别于明知认定，正如学者所言，明知是行为人对犯罪构成事实的一种认知状态，而非他人对行为人认识状态的判断。【2】我国刑法第14条中的“明知”即为行为人对自身犯罪构成事实的明知，而明知认定则是司法人员从刑事司法角度对行为人主观认识状态的认知，具体可通过证明明知与推定明知加以实现。明知与明知认定分属不同领域，两者相互独立，明知是明知认定的基础。 （二）毒品犯罪明知的内容 明知的内容主要包含两个层面：一是行为人对客观构成要件事实的明知，二是行为人对行为实质违法性的明知。囿于构成要件事实由诸多构成要件要素组合而成，明知还可分为对描述的构成要件要素的明知和对规范的构成要件要素的明知。描述的构成要件要素是对构成要件事实的简单描述，明确、具体，无需法官加以价值评价，一般人在感知客观构成要件事实的同时就能对行为的社会意义与实质违法性加以判断。毒品犯罪要求行为人认识到行为对象是毒品属于对描述的构成要件要素的明知。刑法理论界的通说观点认为，毒品犯罪的成立，只要求行为人认识到是毒品即可，并不要求行为人具体认识毒品的名称、化学成分以及效用等具体性质。【3】也有学者认为，行为人对毒品的认知应当涵盖其本质属性，具体而言就是明知毒品的种类。【4】 本文认为，行为人只要认识到行为对象是毒品，不是其他违禁品就可成为明知。首先，随着新型毒品的不断涌现，行为人对毒品物质属性的认知难度逐渐增加，以致很难判断自身接触的到底是何种类型的毒品。其次，依照刑法第357条规定，毒品是指鸦片、海洛因、甲基苯丙胺(冰毒)、吗啡、大麻、可卡因以及国家规定管制的其他能够使人形成瘾癖的麻醉药品和精神药品。毒品的范围十分广泛，如若要求行为人认识到毒品的具体类型，会使毒品犯罪的犯罪圈过于狭窄。再次，依照刑法规定，毒品的具体类型并不影响毒品犯罪的成立。因而，行为人只需认识到是毒品，而无需认识到具体是哪一种类型的毒品，就可认定对毒品的明知。 （三）毒品犯罪明知的程度认定 明知的程度是指行为人对客观构成要件事实的认知程度。明知程度的认定是司法人员是通过证明或者推定得出行为人对构成要件事实认知程度的结论。我国刑法理论针对明知的程度认定主要有三种观点：其一，确定性说，该观点认为明知只能表现为是行为人的确定性认识，而不能是可能性认识【4】。其二，可能性说，该观点主张不管行为人认识到肯定是毒品，还是认识到可能是毒品，都属于认识到是毒品，不影响犯罪的成立【5】。其三，确定性+可能性说，该观点将明知根据认识程度，划分为“明确知道”与“可能知道”【6】。 行为人的认知在“完全确信”与“完全不知”之间，包含着若干中间阶段。有学者认为，按照行为人认识程度的强弱，对于明知可以分为确知（肯定、确实的知道）、实知（事实上知道）、或知（可能知道）、应知（应当知道）4级区分。【7】上述四种明知类型中“确知”、“实知”和“或知”是司法人员通过证据加以证明的明知，如若通过直接证据或间接证据证明行为人确实知道、实际知道或者可能知道行为对象是毒品，证据达到确实、充分，排除合理怀疑的程度，即可认定为明知。 毒品犯罪司法解释和纪要中的“应当知道”，除了证明明知外，还存在推定明知。在适用推定的场合，毒品犯罪行为人对犯罪构成要件事实的明知要至少达到“应当知道”的程度。在司法认定中，行为人可能知道是毒品，但是否知道难以确定时，控诉方的证明责任无法卸除。前述案例1中，甲至少要根据运输费用、运输路线、委托人信息、交货情况以及自身经验等判断出运输的对象应当是毒品。  三、司法解释中“应当知道”的性质 我国毒品犯罪司法解释和地方司法机关制定的规范性文件大量使用了“应当知道”，如最高人民法院、最高人民检察院、公安部2007年《关于办理毒品犯罪案件适用法律若干问题的意见》（以下简称《意见》）规定了“应当知道”的八种情形。2008年最高人民法院《全国部分法院审理毒品犯罪案件工作座谈会纪要》将“明知”是毒品的情形扩展至十种。最高人民法院、最高人民检察院、公安部《关于办理走私、非法买卖麻黄碱类复方制剂等刑事案件适用法律若干问题的意见》对犯罪嫌疑人、被告人主观明知的认定作出规定，进一步将“此前是否实施过违法行为”作为重点考虑因素。但是主观明知的认定在司法适用中仍存在诸多疑难。 针对前述司法解释和纪要中“应当知道”的性质，主要有以下几种观点：一是认为司法解释和纪要中规定的是主观明知推定规则。【8】二是认为除第一种和第八种情形外，都不属于推定，而属于结合客观事实就可以判断行为人实际上知道自己走私、贩卖、运输、持有的是毒品。【9】此处司法解释中的“应当知道”与过失犯罪中的“应知而不知”无关，“应当知道”是基于解决实践中主观明知的证明难题而设置的一种司法认定的明知，实质上包含了证明明知与推定明知。司法解释中的第八项“其他有证据足以证明被告人应当知道的”，属于运用证据证明的明知；司法解释和纪要中“应当知道”的其他情形属于刑事推定，但相关情形的表述，大多数可以作为证明主观明知的证据。原因在于：刑事推定是在对待证事实缺乏证据加以证明时，基于已经得到证明的基础事实，根据基础事实与待证事实间的常态联系，而推定待证事实存在。所谓的推定明知，是指只要能够证明客观基础事实存在，即可推定行为人成立明知，而无须具体的推论过程。司法解释和纪要中列举的情形属于案件中的客观基础事实，在具备这些客观基础事实情况下，行为人明知是毒品的概率较大，故而推定其主观是明知的。刑事案件中，行为人的主观心态较之客观事实，更难以证明。因此，行为人主观构成要件要素的推定（主要为明知推定）在刑事推定中占有重要比例。 刑事推定与间接证明的主要区别在于证明责任的承担，主张成立推定检控方只要证明基础事实存在，证明责任即倒置于被告方；主张间接证明则在符合基础事实条件下，检控方仍应对行为人的主观明知用证据加以证明。明知推定是刑事政策在犯罪主观领域内的体现，在明知的认定中具有作为空间。刑法要在法益保护与人权保障之间加以平衡，刑事明知推定的范围必须严格限定，应仅限于检控机关证明极为困难，而刑事政策又重点打击的犯罪。因而，司法实践应严格界分证明明知与推定明知，坚持以证明明知为常态，以推定明知为例外，并对明知推定谨慎为之。 四、证明明知在毒品犯罪中的适用 传统刑法理论坚持责任主义，责任的成立以行为人的主观罪过为基础，行为人对客观构成要件要素要有明知。证明明知是证明主体通过被告人供述、证人证言、物证、书证、鉴定意见等证据对行为人是否明知这一待证事实加以证明。刑事诉讼中由控方承担证明被告人有罪的责任，是否存在明知，也需要由控方证明，当无法确定行为人是否明知时，根据存疑有利于被告的原则，法官应作出无罪判决。刑事司法大多数的明知认定属于证明明知。司法解释中的“确知”与“实知”均应当属于证明明知，需要控方举证加以证明，无论是用直接证据还是间接证据证明明知，均应达到排除合理怀疑的证明标准。毒品犯罪案件中，亦应以证明明知为主，附之以推定明知，在适用推定情形下对于基础事实本身必须要运用证据证明。 上述案例2网络包裹案虽然在邮寄的包裹中发现毒品，但其并不属于司法解释和纪要规定的“应当知道”情形，本案中没有被告人供述、证人证言等直接证据，故而需要通过间接证据完成对明知的证明。   间接证据   嫌疑人辩解 1.被告人2月22日在广州市某地址收取涉案邮包。 2.手机通话记录、短信等证明自称Micheal的人与丙联系，Micheal要丙将所接收从巴西邮寄包裹中像书一样的物品邮寄到广州市某地址。 3.笔记本电脑内查询快递单号的上网记录显示，被告人多次查询过涉案快递单号，最早查询时间早于被告人供述的朋友让其代取包裹的时间。 4.被告人处查获的笔记本记载了张某及其公司信息、电话。 5.被告人在农行ATM机上汇款200元给张某，并将打款的银行凭条发给上线，上线将凭条以邮件方式发给张某。 其朋友AKIM让其代收包裹，收取包裹只有一次； 其朋友AKIM、SUNDAY让其汇款200元； 对笔记本电脑内查询快递的记录不知情； 手机系案发前一天晚上AKIM给其的。   本案中上述关于被告人客观行为的间接证据能够形成完整的证据链条，实现对被告人明知的证明，而被告人的辩解又无法形成合理解释，故而，能够认定被告人成

2021-12-31

On the Punitive Damages System of Intellectual Property Infringement

Abstract: The system of punitive damages is an important system in China's intellectual property law system, which plays a positive role in making up for the loss of the victim, punishing and curbing the infringement. The "Civil Code" raises "punitive damages" to the height of the law. Under the objective conditions that it is difficult to prove the losses involved in intellectual property infringement litigation, it can be said to give the right holders a reassurance to protect their rights. Keywords: punitive damages intellectual property infringement damages On the Definition of Punitive Damages Punitive damages, usually also known as "exemplary compensation" or "retaliatory compensation", are generally used in intellectual property infringement litigation. Specifically, the amount of compensation made by the defendant according to the actual situation of the case during the trial of the case exceeds the plaintiff's actual loss, and the amount of compensation awarded to the defendant can be regarded as punitive damages. 2. Analysis of the Current Situation of Intellectual Property Infringement Compensation in China Before the implementation of the Civil Code, whether in the theoretical or practical circles, as far as intellectual property infringement compensation is concerned, the "fill-in system" compensation is often adopted, that is to say, when the right holder receives damage, the compensation obtained through litigation can at most make up for the losses he has suffered, and the right holder cannot and has no right to profit from infringement litigation. In intellectual property infringement litigation, the determination of the amount of loss has always been a difficult problem in front of the right holder. In the trial of such cases, the court is often unable to prove the actual amount of loss suffered by the right holder, and can only decide below the statutory compensation limit. Compared with other infringements, the amount of compensation for intellectual property infringement is obviously uncertain, and with the diversification of infringement means, the damage of infringement is getting higher and higher. The amount of compensation under the statutory amount of compensation has become increasingly unable to compensate for the loss of the right holder, especially the loss of market share and the adverse loss suffered by the brand, which cannot be calculated in a specific amount. The illegal cost is far lower than the illegal income, and the infringement of intellectual property rights will become more and more serious, which has gradually become an important factor that can not be ignored in China's economic development, and even an important excuse for some countries in the world to attack our country. The formal implementation of the Civil Code has brought a turning point to solve this difficult problem. First, it is clearly stated in the General Provisions that the way to bear civil liability is "punitive damages" [1]. Second, Article 1,185 [2] of the sub-rule makes it clear that punitive damages are applicable to intellectual property infringement. This is China's clear that the provision that "punitive damages" can be requested when assuming tort liability in the field of intellectual property has been raised to the legal level, it indicates that punitive damages have achieved "full coverage" in intellectual property cases ". It can be said that the establishment of intellectual property infringement compensation in China has entered a new era. 3. Analysis of the Necessity of Establishing Punitive Damages for Intellectual Property Infringement in China 1. Based on the need to combat infringement and purify the market environment With the rapid development of technology, the infringing party through the continuous compression of costs, its through the production and sale of counterfeit goods to obtain high profits is much higher than the amount of compensation awarded by the court, it can be said that the infringing party due to infringement will not only be damaged, but can be based on this profit, so as to repeatedly and repeatedly infringe. Through the application of punitive damages, can play a certain deterrent effect on the infringer, so that the infringer to pay a high cost of infringement, to avoid re-offending, so as to achieve the effect of purifying the market environment. Based on the need to encourage rights holders to safeguard their rights and build a good social order In practice, because the right holders often cannot get compensation or infringement compensation in time and in full, the cost of rights protection is getting higher and higher. Many right holders often feel that the rights protection behavior is not worth the loss, and even lose confidence in the entire judicial system of our country. The forced choice to tolerate or even let it happen has seriously damaged the social order of our country. By applying punitive damages and increasing the compensation obtained by the right holders for infringement, it can not only improve the enthusiasm of the right holders to protect their rights, but also promote the improvement of legal prestige and the formation of a good social order. The Specific Application of Punitive Damages System of 4. Intellectual Property Infringement in China's Judicial Practice (I) the relevant provisions of punitive damages in the current legal system of our country. In addition to the "punitive damages" system provided for in the Civil Code, there are similar provisions on "punitive damages" in the separate law on intellectual property rights, as detailed in Article 63 of the Trademark Law, Article 17 of the Anti-Unfair Competition Law, Article 71 of the Patent Law and Article 54 of the Copyright Law. Applicable Conditions of Punitive Damages for (II) Intellectual Property Infringement Different from the traditional compensatory damages, the main feature of punitive damages is its "punitive", that is, it is far from enough to compensate the obligee for the losses suffered. The key is to punish the infringer, and to a certain extent deter potential infringers and strangle the infringement in the cradle as soon as possible. Therefore, in the specific application of the punitive damages system of intellectual property infringement, the conditions of its application should be strictly limited, and the application should not be expanded at will, contrary to the original intention of establishing the system. The Interpretation on the Application of Punitive Damages in the Trial of Civil Cases Infringing Intellectual Property Rights (hereinafter referred to as the "Interpretation") issued by the Supreme People's Court on March 3, 2021 provides a more authoritative operational guideline on how to apply punitive damages in judicial trials. Combined with the relevant provisions of the judicial interpretation, the author believes that the applicable conditions of punitive damages should cover the following points: 1. There is an objective fact of damage. The author believes that the fact of damage has a dual meaning, one is that there is a tort, and the other is that the tort damages the legitimate rights and interests of the obligee, which includes not only personal rights and interests, but also property rights and other legitimate rights and interests. In other words, punitive damages may only be involved when there is an objective fact of damage, and punitive damages cannot be applied to the preparatory act of infringement that is about to be implemented. For the preparatory act of infringement, the right holder may seek additional relief, including applying to the court for an injunction or property preservation. 2. The infringer has the subjective malice of infringement, which is mainly manifested as intentional. From the perspective of the emergence and development of the punitive damages system and relevant foreign experience, punitive damages have the direct purpose of increasing the liability for compensation, and the ultimate goal is to punish the infringer and deter other potential infringers. Therefore, the application of the punitive damages system must be limited to intentional infringement, otherwise, it is very likely to impose excessive liability on the infringer, thus overcorrecting it. The infringer is subjectively intentional infringement, that is, the infringer knowingly does it intentionally knowing that his actions will infringe upon the intellectual property rights of others. 3. Punitive damages can only be applied if the circumstances are serious. The combination of the serious subjective malicious circumstances can make the punitive damages uniform play its due role, which will not improperly increase the infringer's liability for compensation, but also can achieve "punishment as its rule". According to relevant regulations, punitive damages are generally 1-5 times of damages for the infringer's infringement. If the infringement does not reach the serious standard, the amount of loss involved in the case is not high, even if the top five times of punitive damages are applied. The amount of damages can not serve as a deterrent to the infringer, nor can it play the ultimate goal of the system to curb infringement. As for the standard of "serious circumstances", Article 4 of the interpretation has been listed in detail and will not be repeated. (III) Criteria for Determining the Amount of Punitive Damages For the punitive damages system, the determination of the specific amount of compensation can be said to be the most important in the application of the system. If it is too high, it may excessively increase the liability of the infringer, and if it is too low, it may not be able to serve the purpose of punishment. Therefore, it is necessary to make corresponding legislative provisions on the criteria for determining the amount of punitive damages in order to avoid excessive discretion of judges and thus affect the fairness of judicial decisions. Although the current "Trademark Law", "Patent Law", "Copyright Law" and "Anti-Unfair Competition Law" all set punitive damages to more than one time and less than five times, there are still ambiguities in practice. There are disputes when the right holder requests punitive damages in intellectual property infringement litigation. Article 5 [3] of the "Interpretation" provides corresponding provisions on the calculation criteria for punitive damages, but the author believes that there are still the following points that need to be paid attention to in practical application: 1. On the basis of compensation According to the provisions of Article 5 of the interpretation, the compensation base shall comprehensively consider the actual loss of the obligee, the illegal income of the infringer and the license fee of the right. It should be noted that the reasonable cost of defending the rights of the right holder should be excluded when determining the compensation base. 2. About multiples According to the provisions of Article 6 of the "Interpretation", when determining the multiple of compensation, the severity of the infringement and the subjective malice of the infringer should be comprehensively considered, and the multiple limit under the law should be comprehensively determined. 3. Calculation method: "base * multiple reasonable rights costs" Application Effect of (IV) Punitive Damages System in Intellectual Property Litigation in China The "MOTR" trademark infringement dispute case, which was selected as one of the top 10 intellectual property cases in China's courts in 2019, is a typical case of punitive damages in intellectual property infringement litigation in China. The judgment reflects the firm confidence of the people's court to crack down on malicious infringement such as repeated infringement and continuous infringement, and to increase the punishment for infringement. After the judgment of the case, it has been highly praised by all walks of life. The Legal Daily even published an article on the front page with the headline "Reflecting China's'Great Power' in the context of the trade war", saying that the judgment of this case reflects China's crackdown. The determination of intellectual property crimes also reflects China's confidence in creating a good business environment. From this point of view, since the implementation of the "punitive damages" system in China, it has gained good legal and social effects, and has been well received by all walks of life at home and abroad. With the further clarification of relevant regulations, detailed rules and judicial interpretations, the increase in the number of applicable cases tried by the people's courts will inevitably curb the high incidence of intellectual property infringement cases and benefit the construction of the socialist rule of law in my country. Note:[1] Article 179 of the Civil Code "Where the law provides for punitive damages, follow its provisions." [2] Article 1,185 of the Civil Code "If the infringement of the intellectual property rights of others is intentional and the circumstances are serious, the infringed shall have the right to claim corresponding punitive damages." [3] Article 5 of the Interpretation of the Supreme People's Court on the Application of Punitive Damages in the Trial of Civil Cases Infringing Intellectual Property Rights states that "when determining the amount of punitive damages, the people's court shall, in accordance with relevant laws, take the actual amount of the plaintiff's loss, the amount of the defendant's illegal gains or the benefits obtained from infringement as the calculation base. The basis does not include the reasonable expenses paid by the plaintiff to stop the infringement. If it is difficult to calculate the actual amount of loss, the amount of illegal gains and the benefits obtained as a result of infringement as mentioned in the preceding paragraph, the people's court shall reasonably determine the amount of punitive damages by reference to the multiple of the license fee of the right in accordance with the law." References:[1] Baidu Encyclopedia: Punitive Damages Entry https://baike.baidu.com/item/惩罚性赔偿/10154579?fr=aladdin [2] Li Mingde, American Intellectual Property Law-2nd Edition Law Press 2014.4 ,P614-615 [3] Yang Lixin. Tort Law [M]. Beijing: People's Court Press, 2004:159. [4] Shanghai Pudong New Area People's Court (2018) Shanghai 0115 Minchu No. 53351 Civil Judgment [5] https://www.sohu.com/a/414310802_99895431 of "Shanghai's First Punitive Compensation Dispute for Intellectual Property Infringement" [6] Qian Yuwen, Luo Fulin, "On Punitive Damages in China's Intellectual Property Law", Journal of Law, 2009 [7] Shi Ling and Wang Yingjun, "Application of Punitive Damages System in the Field of Intellectual Property Law in China", in Tianjin Law, No. 1, 2012

2021-12-31

Viewpoint | On the Exercise of Owners' Membership Rights

内容摘要：改革开放以来，社会积攒了大量的财富促使各行各业快速发展，国民的物质需求在不断增加，尤其是对住房的需求。为满足国民的这一需求，城市房地产业快速崛起并占领了市场。但是也由此引发了人地矛盾的激化，面对这一矛盾，城市的住房开始由最开始的横向发展转变为向纵向发展，这种向高层化发展的情况，使得人们居住的越来越集中。 在2007年颁布的《物权法》中关于建筑物区分所有权有一项重要创举，那就是在我国首次在法律中提出该概念。然而，虽然《物权法》对此能够有此规定已经是具有深远的意义，但成员权并没有被普通大众所熟知。另外物权法对成员权的规定也比较笼统，在实际审判中不能直接照搬法条，不然将引发更多别的问题。因此，为解决以上问题，本文将分析成员权行使中存在的法律问题，并提出自己的看法。 关键词：业主成员权，业主，业主大会，业主委员会 一、小区业主成员权概述 （一）小区业主成员权的概念 目前，当今世界对于成员权并没有形成通说，学术界也存在着多种不同的认识。但是，这些不同的认识之中大致可以分为三种学说，它们分别是：一元论、二元论和三元论。首先，目前世界上持一元论的学者所占数量比较少，主要是因为一元论主张建筑物区分所有权可分为“专有权说”或者“共有权说” 这就表现出一元论局限性比较强、经不起推敲、与实际生活不贴合等的缺点。在当今学术界，持二元论和三元论的学者比较多，因两者引发的争议也比较多。持二元论的学者认为，建筑物区分所有权不仅包括各个业主对专有部分的专有权，还包括业主对共有部分的持份权，这种主张就将二元论与一元论彻底区分开来。而持三元论的学者则认为，除了二元论学者提出的专有权和持份权，建筑物区分所有权还应当包括因为业主的共同关系所产生的成员权。 就此，笔者赞成三元论的说法。笔者认为要想全面系统的给建筑物区分所有权下定义，必须要先承认建筑物区分所有权包含专有权、共有权与成员权这三项权利。另外，笔者认为，在探讨业主成员权的概念之前，首先要确定一点，那就是成员权是一种私权；同时，它既包含程序性权利的特点又包含实体性权利的特点，可以称之为新型权利。另外，成员权不能被建筑物区分所有权中的共有权所包括。建筑物区分所有权中的共有权，所体现的是一种财产法律关系，而成员权作为一项独立的权利，不仅包括财产关系，它更多的还是一种管理关系，这与传统以专有与共有部分为中心不同。因此，承认成员权的存在，对目前法律界解决实务问题具有重要意义。 （二）小区业主成员权的行使与实现形式 目前，小区业主,一般都是通过创立业主大会或业主委员会来代替其管理小区具体事务，同时全体业主有权监督业主委员会或业主大会，一旦业主大会或者业主委员会作出的决议损害业主权益，业主有权通过管理规约或者法律途径进行救济。 1.业主大会——业主成员权行使的决策机构 （1）业主大会的职责 业主大会由小区全体业主共同组成，同时受物业所在地的区、县人民政府房地产行政主管部门的指导，对关系到业主共同利益的事项进行决议。由业主大会选举产生业主委员会，业主委员会受业主大会监督。另外，业主大会的主要职责有：制定业主规约；选举、解聘业主委员会和物业管理企业；管理公共维修资金等。 （2）业主大会的决议方法 小区业主通过业主大会实现民主自治，通过业主大会及业主委员会行使自己的成员权。实际生活中，全体业主的意见很难达成一致。因此，在业主大会的决议机制上，我国目前采用的是“二重多数决”。根据《民法典》第二百七十八条的规定：“业主共同决定事项，应当由专有部分面积占比三分之二以上的业主且人数占比三分之二以上的业主参与表决。决定前款第六项至第八项规定的事项，应当经参与表决专有部分面积四分之三以上的业主且参与表决人数四分之三以上的业主同意。决定前款其他事项，应当经参与表决专有部分面积过半数的业主且参与表决人数过半数的业主同意。”。从以上规定可以看出，对于重大事项比如维修资金的使用等采取特别表决方式，即须双重三分之二参与表决，参与表决的双重四分之三同意。而对于一般事项比如选聘物业服务企业等则采取双重三分之二参与表决，参与表决的双重过半同意的规则。 2.业主委员会——业主成员权行使的执行机构 业主大会产生在先，业主委员会产生在后。业主委员会由全体业主通过业主大会选举而产生。因此，召开业主大会是业主委员会产生的前提。一般小区的管理是由业主委员会负责，业主委员会掌握大权。这样的操作模式存在着很多的弊端，现在，我国采用的是业主大会和业主委员会并存的管理模式,这样的管理模式一改之前的由单一的业主委员会管理的模式的弊端，其益处在近些年来也显现出来。 二、我国小区业主成员权行使存在的法律问题 （一）业主大会召开困难 业主成员权主要是业主通过参加业主大会来行使，因此业主大会的顺利召开是业主维护自己利益的前提。但是由于众多原因，在实践中，很多小区还长期存在着从来没有召开过业主大会的情况，不解决此种情况，喊保护业主权益的口号就是无稽之谈。那么，具体阻碍业主大会召开的原因，据分析如下： 第一，由于业主大会产生在先，业主委员会产生在后，因此首次召开业主大会时，还没有业主委员会。虽然《物业管理条例》第九条规定“召集业主大会会议”是业主委员会的职责之一，但在出现缺乏业主委员会这一组织者的情形时，如何召开首次业主大会，各地规定不一。一般情况下，在我国大多数地区是规定由房地产开放商组织召开业主大会。但是，房地产开发商为了掌握着物业管理的权利，很多情况下是不愿意召开业主大会的，或者存在一些房地产开发商故意阻挠或者拖延时间，导致首次业主大会无法顺利召开的情形。 第二，虽然改革开放以来，国民的民主意识得到了大大的提高，但是由于成员权的出现也是由于人们越来越集中的居住在同一栋建筑物里，这段时间尚短。很多业主尚不知道自己拥有成员权，当然就更不可能知道如何行使成员权。而且，由于要承担一些管理费用，业主们参与管理的积极性也大大降低了。另外，业主之间并无太多交集，缺乏团结的基础，即便居住对门，但是不了解对门邻居的情况非常普遍。而且现代人对不关乎自己切身利益的事情，通常情况下也表现的比较冷漠。这些都是业主参与管理积极性低的原因。 第三，2007年《物权法》首次将建筑物区分所有权在立法上予以承认，现今《民法典》第六章再次确定了业主的建筑物区分所有权，虽然在一定程度上确定了业主共有的范围，但全国各个地方均存在既成事实难以一刀切的情况，操作难度较大。而且，各个地方关于第一次召开业主大会的规定又不相同，甚至存在开发商拖延召开、同化业主代表等违规行为，操作起来就更加繁琐。 根据上述分析，我们得知，业主大会的顺利召开是小区业主行使成员权的第一步，但是实际生活中召开业主大会会遇到多方障碍。业主要想实现民主自治，第一步就是要召开业主大会。虽然将所有的管理工作都由业主大会来负责，这一想法并不现实；但是业主大会是处理物业管理工作的前提。 （二）业主大会表决机制不完善 小区业主通过业主大会表达自己的意志，每位业主都希望能够通过业主大会能够维护自己的权益，因此表决机制的制定就显得尤为重要。表决机制包括表决方法和表决权的计算。业主大会通常采用的是通过全体业主投票的方式来进行表决。目前关于投票权的计算与分配,每个国家都不一样,目前主要存在四种方式。第一,采用一人一票制。此种方法是按照拥有的专有部分的具体数量来分配投票券,瑞士、德国及我国台湾地区这些民主制度的地区和国家大都采用此种方法。第二,根据建筑物所有权比例来分配投票权。日本和法国多采用这种方式。第三,按照各个业主拥有房屋数量来分配投票权。美国主要采用这种方式。第四,根据业主拥有的住宅的建筑面积大小来分配投票权。 由上所知，建筑物区分所有权的计算方法主要分为两种，分别为按业主人数，以及建筑物所占比例。这两种方法各有利弊。一方面，当各单位面积大体相同的情况下，采用第一种计算方法就比较合理。但是一旦各单位面积相差较大的情况下，面积较大的一方就会认为采用此种方法不公平。另一方面，采用第二种方法，会出现控制份额较少的一方的业主的权益不受到保护，而仅仅听命于控制份额较多的一方的要求。如果说将开发商也看作是业主的话，假如该栋建筑物只出售总体的20%，那么意味着开发商拥有80%的投票权，那么这意味着，当对某一事项进行表决的时候，即便这20%的业主都投了支持票，如果开发商投了反对票，还是无法通过决议，会产生一票否决的情况，此时这些业主的权益也就无法得到保护。 目前，通过分析《物业管理条例》第十二条和《民法典》第二百七十八条两条规定可知我国采用的是普通多数决和特别多数决相结合的方式。这种方式看似比较合理，也成功规避了只采取一种表决方式所产生的风险。但是，此种方法却没有考虑到中国的国情。一个决议一旦被搁置，就有可能造成损失。该损失最终还是由全体业主集体承担，因此，此种方法并没对业主成员权产生实质性的保护。值得注意的是，《民法典》对于双重表决的要求比《物业管理条例》更加严格，无论是根据“上位法优于下位法”还是“新法优于旧法”，实务中应以《民法典》新规定为准。 （三）业主委员会诉讼地位不明确 关于业主委员会是否是法律主体这一问题，各国的规定各不一样。其中，承认管理团体法人地位的国家有美国、法国以及德国等，这些国家认为业主委员会属业主大会的下设机构，是具体的执行机构，是不具有法人主体资格的。 我国法律没有规定业主委员会是否有独立的民事主体资格，这项内容的缺失也会使得业主在维权时遇到诸多问题。 （四）业主自治监督机制不完善 业主大会作为业主行使成员权的决策机构，是权力机关；而业主委员会是业主大会的具体执行机关。他们都有全体业主赋予他们的权力。但是我们都知道权力无监督就可能导致滥用权力的发生，因此需要对其进行有效的监督。 虽然我国在1994年的《城市新建住宅小区管理办法》中规定了一些监督条款，但是由于时代久远，而且相对简单笼统，对于处理现在的小区问题并没有很多实质意义。而现行法律中，虽然《民法典》第二百八十七条规定了权利救济途径，但是过于笼统，规定过于简单，并不能真正保障业主成员权的行使。虽然业主委员作为常设机构，能够对有些事项进行监督，但是由于法律并没有对其监督赋予真正的权力，所以业主委员会的监督也不是真正的监督。 三、小区业主成员权行使的清障分析 （一）完善业主大会的召开制度 1.完善业主大会的召开条件 首先，应该肯定开发商是属于业主范畴的，因为开发商是未出售房屋的所有者，当然也享有业主成员权这一权利。但是这样的规定会出现开发商怠于组织第一次业主大会的情况，这样其他业主行使成员权的途径就被扼杀了，无法保障其他业主的权利。所以，我们需要考虑首次召开业主大会的条件应为如何比较合理。笔者认为，日后完善相关法律，应该明确规定统一的首次业主大会召开的条件。目前存在一种观点是将已交付的专有部分的面积占总面积的比例作为标准，对此笔者并不十分认同。我认为，如果开发商怠于组织业主大会，只要满足其他的几个条件，程序合法，其他业主依旧可以召开业主大会。第一，已交付专有面积占建筑物总面积的50%即可举行业主大会。第二，房屋交付满两年。做此规定是因为有些小区销售情况不是很好，一直都没有达到已交付面积占总面积的50%，考虑到不能因为一直没有达到比例要求，就一直不召开业主大会。第三，有20%的业主提名要求举行业主大会。做此规定是因为，当开发商怠于召开业主大会或者也不满足第二个条件的时候，这些已交付业主的权益应当如何维护的问题。笔者认为，以上三个条件满足任意一个就可以召开业主大会。 2.规定首次业主大会的负责人 关于业主大会的负责人，目前存在很大的争议。争议最多的是业主、房地产开发商、政府有关部门。首先，新入住的业主对房屋出售情况等都不是很了解，而且新业主互相之间也不适合了解，让其作为首次业主大会的负责人显得不合情理。其次，虽然房地产开发商对整个小区的出售情况最为了解，但是现实情况中房地产开发商大多怠于组织召开业主大会，将房地产开发商作为业主大会的负责人不太合适。最后，我认为综合比较，政府有关部门作为首次业主大会负责人比较合适

2021-12-31

Viewpoint... Chinese investors-host country dispute settlement mediation rules are analyzed.

Content abstract: if the normal relations between sovereign states are to be maintained completely, if the good cross-border investment environment of the host country is to be guaranteed, if the legitimate rights and interests of both parties in cross-border investment are to be maintained, and if the friendly and cooperative relations between countries are to be healthy Development, proper settlement of international investment disputes is the top priority. As a non-litigation method of dispute resolution, mediation refers to a method in which the parties to a dispute reach an agreement on the basis of mutual understanding and mutual accommodation with the help of a third party. Mediation has unique benefit value and harmonious value, has the function of saving dispute settlement cost and stabilizing cooperative relationship, and can provide the parties with a one-time opportunity to resolve disputes. By studying the application of mediation rules and procedures in current international disputes, this paper tries to make concrete suggestions in three aspects: innovating mediation rules, broadening the application of mediation rules and perfecting the implementation procedures of mediation rules. Keywords: international investment dispute settlement mediation rules BIT Overview of 1. Investor-Host State Dispute Settlement Conciliation Rules All kinds of disputes caused by the transnational investment behavior of other countries in the host country are the main forms of international investment disputes. From the main body, it can be divided into disputes between investors and host investors, disputes between investors and host countries and disputes between investor countries and host countries, and this paper mainly explores the more frequent disputes between investors and host countries. The settlement of international investment disputes mainly depends on the agreement of international investment treaties signed between countries. International investment treaties include multilateral investment treaties, bilateral investment treaties and regional investment treaties. Only the early Washington Convention specifically provided for dispute settlement in international investment disputes. Mediation as a relief procedure for the settlement of disputes is mainly manifested as: the emergence of disputes-the parties choose a third party to intervene in the dispute-the third party in accordance with certain standards and procedures to listen to the views of the parties, summarize the focus of the dispute, put forward proposals for settlement-the parties to comply with the principle of voluntary legality to make a decision. [1] In the sense of the modern rule of law, rules are restrictions on autonomy of will, but the soul of mediation lies in freedom and has an "anti-procedural appearance" [2], and while mediation is usually conducive to "open disclosure", it is not an inevitable shortcut to substantive justice. Mediation rules, on the other hand, are standards or principles established by authority and observed; or general standards that prescribe or guide conduct or activity in a particular situation. [3] Therefore, as the carrier of mediation procedure, mediation rules are of great research value, and China can improve the mediation rules in the investor-host country dispute settlement mechanism. Conciliation rules have a more arbitrary appearance than litigation or arbitration rules, which is determined by consensual, the essential factor of mediation. [4] In conciliation, the conciliator has the flexibility to assist the parties in identifying the dispute, proposing proposals and facilitating a settlement in a variety of ways, without having to follow strict procedural order. Once a mediation agreement is reached, it is often possible to resolve a case quickly. 2. Chinese investors-the practice of the host country dispute settlement mediation rules. (I) of Investor-Host Country Investment Dispute Mediation Rules in China's Multilateral Investment Treaties 1. Analysis of the mediation rules in the Washington Convention For the first time in this convention, the conciliation mechanism is stipulated as one of the ways to settle international investment disputes within the scope of international conventions. Investment disputes between investors of other countries and the government of the investee country in the investee country already exist in a considerable number of bilateral investment protection treaties at the international level to regulate this, I .e. the jurisdiction of such disputes is submitted to a mutually recognized dispute resolution "center", which may conduct mediation or arbitration. The ICSID Convention also has its mediation rules, namely, the ICSID Convention Mediation Rules (2006) and the ICSID Mediation Additional Facilitation Rules (2006). The two rules are a clarification of the way in which the dispute settlement center applies the mediation rules in the Convention. In 2011, Malaysia's Yijialan Company registered with the ICSID Secretariat with the Hainan Government of China for a land transfer dispute. The case was settled by settlement (mediation). The case was initiated by the Hainan Provincial Government, which unilaterally recovered the right of Yijialan to develop the land in Wanning City without reasonable compensation. As the land involved in the case is more than 2000 mu and involves international investment, the Chinese side attaches great importance to it, actively carries out consultation with yijialan company, and successfully reached a settlement in the same year. Of course, the reason why Yijialan Company is no longer entangled is that the Hainan government promised to find another 500 mu of land development rights to compensate it. This case is the first case brought against China in ICSID. Yijialan Company quoted the 1995 China-Israel BIT Investor-Host Country Investment Dispute Settlement Clause in accordance with the 1988 China-Malaysia BIT MFN Treatment Clause, which stipulates that investment disputes can be submitted to ICSID for settlement. This case involves issues of jurisdiction and national sovereignty. 2. Analysis of conciliation rules in the Multilateral Investment Guarantee Agency Convention The rules for the settlement of disputes by conciliation are detailed in article 3 of annex II to the Convention. In the early 1980 s, many developing countries were facing debt crises, which led to frequent international debt disputes due to their inability to repay their debts. In this context, the Multilateral Investment Guarantee Agency Convention came into being. The Convention creatively establishes a system of subrogation claims, which not only exercises the right of subrogation by MIGA, but also indirectly resolves international investment disputes. The Convention stipulates that other disputes between institutions and member states that are not related to interpretation and enforcement must be resolved through negotiation, arbitration and mediation, and expressly stipulates the application of mediation rules. MIGA has played a positive role in promoting the free flow of private capital in China. In 2000, PICC and MIGA signed a cooperation agreement to jointly protect the investment of Chinese investors in other developing countries. In 2006, China Export Credit Insurance Corporation and MIGA signed a memorandum of understanding on comprehensive cooperation to further deepen and regulate the cooperative relationship between the two parties. MIGA has also played a great role in promoting the development of China's investment: first, MIGA provides guarantee for small investment to protect the small international investment behavior of private investors; second, with the improvement of national strength and the support of the "Belt and Road Initiative" initiative, China's foreign direct investment has increased, and MIGA has protected China's foreign direct investment in the sense of international law. (II) Investor-Host Country Investment Dispute Mediation Rules in China's Bilateral Investment Treaties 1. Anatomy of conciliation procedures in bilateral investment treaties Note: On July 29, 2015, China and Turkey signed the Agreement between the Government of the Republic of the People's Republic of China and the Government of the Republic of Turkey on the Reciprocal Promotion and Protection of Investments. The agreement entered into force on November 11, 2020. 2. Application of conciliation rules in bilateral investment treaties At present, there are 105 bilateral investment agreements in China, of which 12 clearly state that mediation or third party intervention can be sought to resolve disputes. They are China and Uzbekistan, Belgium and Luxembourg, Tanzania, Israel, Turkey, India, Papua New Guinea, Japan, Slovakia, the Netherlands, Russia and Greece, accounting for 11.4 per cent. Article [7] of the Agreement on the Encouragement and Reciprocal Protection of Investments signed between China and the Greek Government, which entered into force in 1993, provides that disputes between the investor's host country may be submitted to ICSID for settlement through mediation or arbitration, and clearly sets out the application of mediation procedures. Article 9 of the Agreement on the Promotion and Protection of Investment signed between China and India, which entered into force in 2007, (II) stipulates that if the two parties cannot resolve the dispute through friendly consultation within the period, the dispute may be submitted to judicial, arbitration or With the consent of the parties, administrative agencies can also conduct mediation in accordance with the "United Nations Trade Law Commission Mediation Rules. Article 12, paragraph 1, of the Agreement with Uzbekistan on the Promotion and Protection of Investments [7], which entered into force in 2011, provides that disputes shall, as far as possible, be resolved through consultations between the parties, including the application of conciliation procedures. Article 8 of the Agreement on the Promotion and Reciprocal Protection of Investments [8] signed with Israel, which entered into force in 2009, stipulates that if a friendly settlement is not possible, a written request may be made to the Secretary-General of the International Center for Settlement of Investment Disputes to resort to mediation or arbitration proceedings, which can be mediated through the International Center for Settlement of Investment Disputes after the pre-procedure, as well as the bilateral agreement signed with Japan (1989). Article 13 of the Agreement on the Promotion and Reciprocal Protection of Investments with the Government of the United Republic of Tanzania [9], which entered into force in 2014, provides that investment disputes between an investor and the territory of another Contracting State shall, as far as possible, be settled through friendly consultations between the parties, including the application of conciliation procedures. (III) of Investor-Host Country Investment Dispute Mediation Rules in China's FTA Agreements 1. Analysis of mediation rules in the China-New Zealand Free Trade Area Agreement The China-New Zealand Free Trade Agreement [10] between China and New Zealand stipulates that investment disputes between investors and host countries shall be settled amicably as far as possible through consultations between the investor and the other party, and third-party procedures may also be introduced for dispute settlement if both parties to the dispute accept the intervention of third-party procedures. Such non-binding third-party proceedings include conciliation proceedings. This provision, similar to the above-mentioned States of Uzbekistan and Tanzania, places mediation in the context of "friendly consultations" of consultations or negotiations. 2. Analysis of mediation rules in the China-ASEAN Free Trade Area Agreement. The Investment Agreement of the Comprehensive Economic Cooperation Framework Agreement between China and ASEAN is stipulated in the China-ASEAN Free Trade Agreement. In 2015, China and ASEAN reached an outcome document "Protocol" on upgrading negotiations in Beijing, which entered into force in 2016. The Protocol aims to provide a series of guarantees for further cooperation in the field of investment. In order to promote investment facilitation, the two parties have reached a series of consensus on simplifying investment approval procedures, promoting the release of investment-related policies and regulatory information, and establishing a one-stop investment center or related mechanism when necessary, and supporting the provision of business licenses, convenient licensing and consulting for the business community. Although the rules for the settlement of disputes between parties and investors in the agreement are that the parties involved in the dispute should, as far as possible, resolve the dispute through consultation. If the dispute is not resolved, arbitration may be initiated. There is no direct provision for the application of the mediation rules. However, it is mentioned that the mediation rules of the arbitration institution can be applied after the dispute is submitted to the listed International Center for Settlement of Investment Disputes, UNCITRAL or other arbitration institutions agreed by both parties. Specific Proposals 3. Improving the Rules of Mediation for Investor-Host State Dispute Settlement in China (I) innovative investor-host country dispute settlement mediation rules At present, the Trade Law Commission is promoting the reform of investor-state dispute settlement, sorting out a series of problems in the existing system, and China can add its own reasonable propositions or suggestions in the discussion meeting. First, the mediation procedure can be separated from the arbitration procedure, and the mediation can be separated from the litigation and arbitration. Through separation, it can promote the independent development of mediation, promote the evolution and innovation of mediation rules, form standardized, legal and reasonable mediation rules, play its judicial function, improve the "procedural justice" of mediation, and increase the efficiency of the use of procedures. At the same time, the confidentiality of the mediation procedure can be improved, so that the mediation procedure will not affect the fairness of the litigation or arbitration procedure, and the trial or arbitration tribunal will not make a pre-judgment because of the matters known in the mediation. Second, mediation can be set as a pre-procedure to save judicial resources. With reference to the "first mediation" system stipulated in articles 122 and 133 of China's Civil Procedure Law, some discretionary issues between investors and the host government regarding investment can be mediated first, and if they can be renegotiated or discussed, there is no need to sue the court or arbitration institution, in order to save time and cost and judicial resources. At the same time, it should be emphasized that whether a dispute can be subject to mediation procedures depends on whether the dispute focus of the dispute has the possibility of mediation, whether the content of the concession can be determined by the subject of the party, and cannot be forced to mediate. "Priority application" does not necessarily apply the conciliation procedure to solve the problem, and care should be taken to avoid excessive promotion of conciliation. At the same time, attention should be paid to the protection of the parties' right to sue. If the dispute has been deadlocked and it is obviously impossible to resolve the dispute through mediation procedures, the procedure should be terminated in time and transferred to other litigation or arbitration procedures. Third, a standardized and diversified mediator qualification selection system can be constructed. Successful mediators can choose appropriate methods and methods according to their role positioning, use appropriate communication skills, conduct professional mediation, and properly handle the materials and information obtained in mediation, and successfully promote mediation. Such institutional support will provide a stable external environment for mediation, consolidate the basic functions of the mediation link, and reduce the opportunity cost of the mediation mechanism. Fourth, provide convenience in the system. First, it can demonstrate the effectiveness and implementation possibility of mediation in international investment, and increase the recognition of judicial justice in mediation through continuous improvement of mediation rules. Second, mediation institutions can be set up completely in practice, the composition of mediation rules is perfect, mediators are qualified and authoritative, and mediation with fair and appropriate results can be evaluated and implemented under appropriate conditions, and pilot projects can be carried out, in order to promote the benign development of the mediation system. (II) Broaden the Specific Application of Investor-Host State Dispute Settlement Rules After the above analysis, it can be seen that in the BITs signed between China and most countries, the agreement on the settlement of disputes between investors and host countries does not specify the application of mediation rules, but this provision does not exclude investors from using mediation as a means of settlement of investment disputes in practice [11]. The reasons are as follows: First, there is no explicit restriction in the treaty on the involvement of third parties in disputes, I .e., the use of conciliation procedures to resolve disputes, and there is no fork in the road clause. The fork-in-the-road clause means that the investor may not resort to another procedure after having chosen a domestic or international arbitration procedure when choosing a remedy. The application of the rules of conciliation is not restricted. Second, most of the BITs signed by our country clearly stipulate the pre-negotiation procedure, and need to go through a certain cooling period, the parties can reach a mediation agreement in the negotiation procedure, as one of the specific ways of negotiation. This relatively expanded interpretation would neither prejudice the conduct of subsequent relief proceedings nor change existing rules. The ability to take full advantage of mediation enhances the likelihood of successful negotiation. Third, it is true that the BIT specifies that the negotiation procedure includes the application of the mediation procedure, and that mediation is regarded as one of the negotiation procedures, which is feasible under the current legal framework. (III) improve the implementation procedures of the investor-host country dispute settlement mediation rules. To improve the implementation procedure of the mediation rules, we can try to establish a linkage mechanism similar to the arbitration procedure. Since the most thorough convention on investor-host country dispute rules is the Washington Convention, the following points can be drawn from it:(1) Each State party has an obligation of recognition and enforcement. (2) Each State Party shall enforce conciliation agreements developed by specialized agencies (without national interest) as if they were final judgments of its courts, without excessive review and refusal to recognize them.

2021-12-30

Viewpoint | Analysis of the EU Green Trademark Report (Excerpt)

Based on the investigation and analysis of the EU trademark (European Union Trade Mark,EUTM) commodity and service specifications applied for in the EU from 1996 to 2020, the EU Intellectual Property Office (European Union Intellectual Property Office, EUIPO) issued the Green EU trade marks report (Green EU trade marks) in September 2021. We will apply for trademarks in fields such as "photovoltaic", "solar energy", "wind energy" and "material recycling, named" Green Trademark "). Through the analysis of the report, we try to find the law and development context of trademark application and enterprise and national development for readers' reference. Background of the release of the 1. report Climate change and other related environmental issues are of relevance to everyone, both inside and outside the EU, and are increasingly common and important in politics, business and public debate. In 2019, the European Commission made action on climate change a priority, committing to a European Green Deal with the goal of making Europe the first carbon-neutral continent by 2050. In addition to investing significant financial resources, intellectual property rights are also an important consideration in achieving the goals of the European Commission. Creating new technologies, bringing new products and services to market and redesigning existing products to make them more sustainable is an important step in achieving the Green Deal goal. Traditionally, the role of intellectual property rights in environmental protection has been achieved through technological reform and innovation, and the number of patent applications is the main indicator of innovative activities in this field. However, through the analysis of the data on environmental protection and sustainable development in 2 million EU trademark (European Union Trade Mark,EUTM) applications accepted by the EU Intellectual Property Office from 1996 to 2020, as shown in Figure 1, it is not difficult to see that the number of green trademark applications is increasing significantly, and sustainable development has also received continuous attention from the majority of applicants. Figure 1 As shown in Figure 2, the same green EUTM applications from outside the EU are also increasing. The data shows that among these significant growth in green trademark applications, such applications from Chinese companies have increased significantly; other non-EU countries that have seen significant growth in green EUTM applications include South Korea, Switzerland, the United States, and the United Kingdom; and in the EU Among the member states, the countries with the most green EUTM applications are Germany, Spain, France, Italy and the Netherlands. Figure 2 2. from a national or regional perspective We focus on the contribution of trademarks to the national or regional level. The study found that in modern economic development, the importance of trademarks has become increasingly prominent. The EUIPO and the EPO in their 2019 study on the contribution of industry-level intellectual property found that industries that use trademarks intensively account for 37% of EU economic output (as measured by GDP) and 22% of employment. Belderbos, Kazimierczak and Goedhuys(2021) studied the impact of the existing patent and trademark stock owned by established companies in various regions on the establishment of new companies, and found that to a certain extent, the behavior of existing companies applying for trademark protection and expanding their own trademark stock can encourage new companies to enter their to-be-developed areas. Now, let's look at the growing trend of green trademarks at the EU level. As shown in Figure 3, part of the overall growth is due to the strong growth of green EUTM applications from outside the EU. For most of the past two decades, the number of green applications from the EU has been much higher than the number of such applications from third countries. However, in 2020, the number of non-EU green applications has caught up (about 14%) and has slightly exceeded the number of applications from within the EU (about 10%). Figure 3 Figure 4 shows the distribution of green EUTM applications submitted in the nine major product groups over the last five years. The energy-related products category dominates, with energy production and energy conservation-related trademarks accounting for more than half (54%) of green EUTM applications. Among them, energy saving accounts for 42.9 per cent, which is the largest category, while energy storage products (mainly various batteries) account for 38 per cent of all green EUTM applications, which is the most important category, dominated by Chinese enterprises. The second category is pollution control, accounting for 18 per cent. Among them, water purification products account for 11%, mainly from China and South Korea. In other categories, energy production and transportation each account for 10%. In the energy production category, solar energy products stand out, accounting for nearly 5%. Products related to climate change and reuse/recycling each account for 6%. Products and environmental awareness (ecology and sustainability) related product categories, products and waste management related categories, and agricultural alternative product categories accounted for 2-3% each. As shown in Table 1 below, in the past 2015 to 2020, although green EUTM applications were mainly in large countries such as China (16356 pieces) and Germany (12003 pieces), some smaller countries also showed greater application efforts in specific professional fields, such as Denmark's wind and hydrogen energy automobile products, Poland's fertilizer substitution products, etc. The countries with the highest proportion of green EUTM applications in their total EUTM applications are South Korea (25.4 per cent) and China (22.6 per cent). Among them, the Cayman Islands and Turkey accounted for more than 20%, but the absolute numbers were low. These countries all focused on products related to electricity storage, while South Korea appeared more diversified in solar and hydrogen vehicles. Table 1 3. analysis from the perspective of enterprises Another interesting finding from the perspective of another dimension, the enterprise, is that small and medium-sized enterprises (SMEs) are significantly active in the field of green EUTM. As shown in Table 2 below, for the large companies in this sample, green EUTM applications accounted for 12.7 per cent of total applications, which is not surprising; for SMEs, the percentage is slightly lower, but even the smallest companies in this group have a share of green EUTM applications of 9 per cent of their total applications, which is somewhat surprising. Similarly, large companies are far more active in patent filings than SMEs, but SMEs play an important role in bringing environmentally-related goods and services (G & S) to the EU market. While large companies are more active in filing green EUTM applications and are more likely to bundle trademarks with patents, with 12.7 per cent of EUTM applications filed in the 2015-2020 period falling into the green category, SMEs have also played a significant role, with about 10 per cent of their EUTM applications falling into the green category. In absolute numbers, SMEs submitted more Green EUTM than large companies during this period: 11554 and 8571, respectively. This highlights the role of SMEs in the EU economy, including in the green transition. Table 2 In the field of intellectual property, patents and trademarks have different meanings for the same company. The successful authorization of patents means that the company has developed new products or new production methods, while the approved registration of trademarks indicates that the company has provided new products in the market. Or service, which helps the company's corporate marketing, sales and consumers to identify the source of the product (or service). A trademark distinguishes a company's products (or services) from those of its competitors. The trademark application must contain the design of the trademark (usually text, graphic elements, or a combination of them) and the product (or service) designated by the trademark. In 1996, EUIPO's first year of operation, it received about 46700 EUTM applications, 1588 of which were green trademarks. Since then, except for 2001 and 2011 to 2014, the number of green trademark applications has continued to increase. In 2020, the number of green EU trademark applications is close to 16000. In a series of studies conducted jointly by EUIPO and the European Patent Office (EPO), the relationship between intellectual property ownership (including trademark ownership) and firm performance was analyzed. A EUIPO-EPO(2019) study of high-growth SMEs found that trademark applications are more correlated with the likelihood of subsequent growth, especially when combined with patent application activity, and the power of this IP combo is more powerful for subsequent growth. This is especially true for the protection of intellectual property rights (trademarks and patents) at the EU level. Similarly, EUIPO-EPO(2021) found that companies with patents, trademarks, or copyrights have higher per capita income and employ more people than companies without any of the three intellectual property rights. 4. research conclusion Through the study of the above two dimensions of countries (or regions) and enterprises, we can get a little simple conclusion. In the development of modern economy, intellectual property is playing a more and more important role. The importance of intellectual property rights in the traditional sense of trademarks and patents is not different from each other. From the perspective of the country or enterprise, patent rights may represent technological innovation and change, and trademark rights represent the direction of future development. Due to the long time of trademark application, the future development direction is often protected in advance by enterprises or related subjects in the form of pre-application (trademark reserve). Therefore, from the analysis of the number of trademark applications and the category of trademark applications over a long period of time, we can get the industrial layout of the country (region) or enterprises in the future. From the above research data, it can be seen that the green industry is getting more and more attention at the current national or enterprise level. Countries led by China and the United States are all planning, and far-sighted enterprises are making relevant layouts regardless of size. I hope our analysis can give readers some tips in the future development of enterprises. The English version of the full report is derived from: https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/documents/reports/2021_Green_EU_trade_marks/2021_Green_EU_trade_marks_FullR_en.pdf

2021-12-30

Point of View... How is the act of the lender and the borrower conspiring to defraud the guarantor's property from the case?

1. brief In December 2008, Wu XX borrowed the name of Weng XX to establish XX Real Estate Co., Ltd., with Weng XX as the legal representative and Wu XX as the general manager. At the same time, Wu Moumou and Weng Moumou signed an agreement, agreeing that the shareholders of the company are Wu Moumou and Weng Moumou. Weng Moumou does not actually contribute capital to the company and does not participate in the operation of the company. All capital contributions of the company are borne by Wu Moumou, and all external responsibilities of the company are borne by Wu Moumou. In January 2010, the legal person of the company was changed from Weng Moumou to Wu Moumou. On February 3, 2010, Weng Moumou reported to the public security that the company's general manager Wu Moumou had embezzled his company's equity. Later, the public security filed a case for investigation with Wu Moumou suspected of falsely reporting registered capital, and took criminal coercive measures against Wu Moumou. Wu Moumou's father then signed the "Agreement" with Weng Moumou to hand over the company's seal, financial information and important documents of the company's development project to Weng Moumou. Later, Jiang Moumou sued the court with a private lending dispute, demanding that the borrower Weng Moumou perform the repayment responsibility, and the guarantor Wu Moumou's company performs joint and several liability for the loan. After the court accepted the case, Jiang Moumou applied to seal up a large number of houses under construction in Wu Moumou Company. After many court sessions, Jiang Moumou submitted an application for withdrawal to the court, and the court allowed him to withdraw the lawsuit. 2. case analysis (I) Weng used the convenience of keeping the company's official seal to forge the loan agreement and let the company provide joint and several liability guarantee for his personal loan. In this case, Wu is the actual shareholder of the company, and Weng is only a nominal shareholder. Weng Moumou kept the company's official seal on his behalf after Wu Moumou was detained by the public security. Therefore, this case needs to examine the authenticity of the loan relationship between Weng and Jiang and the authenticity of the guarantee relationship. First, the issue of the timing of the official seal on the loan agreement between Weng and Jiang. During the signing period of the loan agreement, the company's official seal was kept by Wu, who did not affix the company's official seal to the loan agreement involved. During the trial, Jiang Moumou and Weng Moumou admitted that the company's official seal was stamped by Weng Moumou afterwards. Even if there is a loan relationship, the time when the loan relationship occurs does not match the time when so-and-so crown real estate stamps. Second, according to the agreement signed between Weng and Wu, Weng is not the actual shareholder of the company and has not invested money in the company. Therefore, objectively there is no situation in which Weng has borrowed money for the company's construction in progress. Third, after Weng signed an agreement with Wu's father, the two sides had carried out the company's creditor's rights and debts check, in the handover Weng did not put forward the case of the loan and guarantee. Since the project developed by the company is an urban construction project of the so-and-so sub-district office, the so-and-so sub-district office issued a "certificate" stating that in resolving the dispute between the company and Weng, it had sent personnel to coordinate and reconcile many times. During this period, Weng Moumou himself and his agent never proposed that Weng Moumou borrowed Jiang Moumou's personal money to invest in the company's project, nor provided the company's loan guarantee evidence. Therefore, before Jiang so-and-so sued, the company and the project client so-and-so street office did not know about the loan and guarantee involved. Fourth, the total amount of the four loan agreements involved in the case is as high as more than 3728 million yuan, but the lender Jiang Moumou can not provide the source of these funds, the formation of the loan transactions, the loan process, the way the loan payment and other important evidence that can prove the real occurrence of the loan involved in the case, Jiang Moumou has no evidence to prove that the loan involved in the case actually occurred. Fifth, according to the provisions of Article 16 of the 2011 Company Law, if 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 company involved in the case is an independent legal person. Even if Weng is the legal representative and nominal shareholder of the company, he decides to let the company provide joint guarantee liability for his personal loan without a vote of the shareholders' meeting. Because of the violation of the provisions of the company law, it is also an invalid guarantee. (II) Weng and Jiang for the criminal purpose of illegally occupying the company's property, through the fictitious loan agreement and guarantee relationship, the use of civil litigation, defrauding the property of a certain crown, belongs to litigation fraud, the behavior of the two has constituted the crime of fraud. In this case, after the lawsuit, Jiang Moumou filed an application for property preservation against the guarantor to the court. Soon the court made a ruling to seal up the guarantor's house under construction when Jiang Moumou did not provide a full guarantee. It can be seen that the purpose of the lawsuit between Jiang and Weng is to encroach on the property of the guarantor through civil litigation, that is, the two have a clear purpose of illegal possession of the guarantor's property. It must be emphasized here that although Weng Moumou and Jiang Moumou's actions involved in the case objectively meet the constitutive requirements of the crime of false litigation, their subjective intention to illegally occupy the legal property of XX Crown Real Estate Company is very clear. And the behavior involved in the case occurred before the establishment of the crime of false litigation, according to the Supreme People's Court's Interpretation of the (IX) Time Effect of the Criminal Law Amendment, implement false litigation behavior, if the criminal law before the amendment should be investigated for criminal responsibility for the crime of fraud, embezzlement or embezzlement according to the criminal law before the amendment, the relevant provisions of the criminal law before the amendment shall apply. In general, there are only the perpetrator and the victim in fraud. The victim has a misunderstanding due to the perpetrator's deception and disposes of his own property, that is, the victim and the deceived are the same person. However, in practice, there are also cases of triangular fraud in which the victim and the deceived are not the same person. This case is a triangular fraud. The judge involved in the case is the deceived person. Based on the law, he has the right to decide whether a certain crown real estate bears joint and several guarantee liabilities. Therefore, he is the property disposer, but the victim is a certain crown real estate. In this case, the content of Weng's deception was to fabricate the loan and guarantee relationship, which made the trial judge mistakenly believe that the loan relationship and guarantee relationship existed, thus making a civil judgment that the guarantor should bear joint and several guarantee liability for the loan of more than 3728 million yuan involved. Therefore, Weng's behavior belongs to the purpose of illegal possession, through litigation to defraud the guarantor's property, constitute the crime of fraud. (III), Jiang's withdrawal does not belong to the suspension of the crime, but is forced to make a choice based on objective circumstances, which is an attempted crime. In the course of the crime, the perpetrator's influence on the perpetrator needs to be examined whether the factor other than the will causes the perpetrator to stop continuing the crime, which constitutes the suspension of the crime or the attempted crime. If factors other than will occur, but are not sufficient to prevent the continuation of the crime, and the perpetrator voluntarily gives up the crime based on such unfavorable conditions, it shall be the suspension of the crime; if a phenomenon other than will occurs and is sufficient to prevent the perpetrator from continuing to commit the crime, it shall be an attempt to commit the crime. In this case, Weng Moumou did not intend to let the guarantor XXX company participate in the trial. Weng Moumou entrusted his colleague Pan Moumou to participate in the trial on behalf of the guarantor by using the official seal and invalid business license and other materials to cooperate with him to complete the fraud crime. After Wu Moumou inadvertently learned of the lawsuit involved, Weng Moumou prevented the person entrusted by Wu Moumou from attending the trial. After the agent entrusted by Wu participated in the trial, many questions were raised about the loan and guarantee relationship in this case, and Jiang could not provide a reasonable explanation. After many court sessions, Jiang was forced to apply to the court for withdrawal after realizing that the criminal purpose of the two men could not be realized. Therefore, the criminal state of the two men is not a crime suspension, but an attempted crime.. The criminal acts of (IV) Weng and Jiang are still within the statute of limitations. Weng Moumou colluded with Jiang Moumou to fabricate the loan agreement and guarantee relationship, the total amount was as high as more than 3728 million yuan, and the guarantor Moumou Company was jointly and severally liable for the loan of more than 3728 million yuan, that is, the two persons intended to defraud the guarantor of more than 3728 million yuan worth of property through litigation. According to the sentencing regulations of Shandong Province on the crime of fraud, if the amount of fraud is 500000 yuan or more, it belongs to a particularly large amount, and shall be sentenced to fixed-term imprisonment of more than ten years or life imprisonment, and a fine or confiscation of property. According to the above provisions, Weng's fraud obviously belongs to the "extremely large amount" and should be sentenced within the scope of fixed-term imprisonment of more than ten years or even life imprisonment. According to Article 87 of my country's Criminal Law, crimes will no longer be prosecuted after the following periods: if the legal maximum sentence is less than 5 years of fixed-term imprisonment, the limitation of prosecution is 5 years; if the legal maximum sentence is more than 5 years but less than 10 years of fixed-term imprisonment, The limitation of prosecution is 10 years; if the legal maximum sentence is more than 10 years, after 15 years; if the legal maximum sentence is life imprisonment or death, after 20 years. The maximum legal penalty for fraud by Weng Moumou is life imprisonment, so the prosecution is still 20 years, and the criminal acts of the two are still within the statute of limitations and can be investigated for criminal responsibility. In summary, according to the provisions of Article 266 of my country's Criminal Law on the crime of fraud, Weng Moumou and Jiang Moumou fabricated the loan agreement and guarantee relationship, intending to embezzle the guarantor's property through civil litigation, and their actions have been suspected of fraud. Because the guarantor found out and participated in the civil action in time, the illegal possession purpose of Weng and Jiang was not realized, and it was an attempted fraud.

2021-12-30

Viewpoint | Judgment and Analysis of the Application of Article 77 of the Patent Law

Article 77 of the "Patent Law of the the People's Republic of China" (hereinafter referred to as the "Patent Law") "The use, promise to sell or sell a patent infringing product that is not known to be manufactured and sold without the permission of the patentee for production and business purposes, can prove The legal source of the product shall not be liable for compensation." The content of this article is usually referred to as the "legal source defense" or the "sale/user non-infringement clause". However, in practice, the specific subject can be applied to the defense of this clause, but also according to the actual case, its role in the case and other comprehensive judgment. Example 1: Company A intends to obtain a certain product. It organizes personnel to design and complete the preliminary finalization of the product. However, because it has no actual production capacity, it chooses to hand over the design drawings to Company B. Both parties sign a contract called "Sales Contract", which stipulates that Company B will produce the products according to the design drawings provided by Company A and then sell them to Company A at a certain price, after company B delivered the product to company A according to the contract. Unfortunately, this product fell within the scope of protection of a certain patent right of Company C. Later, Company C sued Company A and Company B for infringement. During the litigation process, Company A presented the "Sales Contract" and the performance certificate, and defended against non-infringement on the grounds of Article 77 of the Patent Law. Example 2: Company B has a variety of products on sale, and also makes its products into brochures and other promotional materials to the market to promote its own products. Company A is interested in one of its products after obtaining Company B's product atlas. After Company A orders this product from Company B, both parties sign a contract called "Sales Contract", which stipulates that Company B will produce the products in its product atlas, and then Company B will deliver the products to Company A according to the contract. Unfortunately, this product fell within the scope of protection of a certain patent right of Company C. Later, Company C sued Company A and Company B for infringement. During the litigation process, Company A presented the "Sales Contract" and the performance certificate, and defended against non-infringement on the grounds of Article 77 of the Patent Law. The author believes that in the above two cases, Company A in Case 1 cannot apply the provisions of Article 77 of the Patent Law and should bear the liability for infringement and compensation. Company A in case 2 applies the provisions of Article 77 of the Patent Law and is only liable to stop the infringement without paying compensation for the following reasons: In Case 1, the design of the accused infringing product was completed by Company A, and when Company A ordered the accused infringing product to Company B, it had already provided the design drawings of the accused infringing product and explicitly required Company B to produce according to the design drawings. In the case of Company A explicitly designated design, whether it is made by Company B or by someone else, the alleged infringing products manufactured by Company B in accordance with the contract are unique, that is, they will inevitably fall into the scope of patent protection of Company C constitute infringement. Although the contract signed by Company A and Company B is called "Sales Contract", in fact, Company A has completed the pre-design and finalization of the accused infringing product, that is, it has participated in part of the production and manufacturing, so it is in line with the producer rather than the seller's identity. Therefore, the acts of Company A and Company B belong to the producers who jointly produce the accused infringing products, and Article 77 of the Patent Law cannot be applied. In case 2, although company B still produces according to the design designated by company A, because the design is made by company B itself and has nothing to do with company A, company A only chooses a certain product designed by party B based on its own needs, which is a typical purchase behavior, and then company B produces the accused infringing product according to its own design, and sell the product to Company A. In the whole process, Company A did not participate in any production process of the accused infringing products, and it can invoke Article 77 of the Patent Law to defend itself. With the improvement of China's socialist market economy, various new models of production and sales emerge one after another, but no matter what the model is, the judgment of the identity of the sales/user of Article 77 of the Patent Law should always be based on the substantive role played by the relevant responsible person in the infringement to judge whether the provision can be applied.

2021-12-29

Government Investment and Financing Legal Observation (III). The exercise of the right of the government party to terminate the PPP contract -- take a government franchise agreement as an example.

Foreword In recent years, with the landing and implementation of a large number of PPP projects, PPP project disputes have begun to emerge. The legal relationship of PPP project is complex, the contract system of PPP project is complex, and because China has not yet issued a unified PPP legislation, the handling of PPP project disputes is facing a lot of confusion. Based on a typical administrative dispute case issued by the Higher People's Court of Shandong Province, this paper discusses the legal issues related to the exercise of the unilateral discharge right of the government of PPP contract. Introduction of 1. case In October 2007, a solid waste company and the Jinan Environmental Protection Bureau signed the "Jinan City Medical Waste Centralized Disposal Project Franchise Agreement", and obtained the exclusive franchise for the centralized disposal of all medical waste in Jinan, with a concession period of 25 years. Due to the continuous increase in the amount of medical waste treatment, a solid waste company proposed in 2014 to designate the southeast corner of the Jinan Municipal Domestic Waste Treatment Center as a new site, and the Jinan Environmental Protection Bureau required it to build a new centralized disposal facility in the first half of 2015. Put into use. However, in the process of specific site selection of the project, due to the non-cooperation of nearby villagers, the environmental impact assessment of the project cannot be completed and the follow-up cannot be promoted. On August 10, 2015, the Municipal Environmental Protection Bureau issued a preparatory notice, pointing out that a solid waste company was facing the problem that the hazardous waste business license and the temporary fixed-point planning of the existing disposal site were about to expire, and required the company to take substantive measures, otherwise it would terminate the franchise agreement. On September 11, 2015, the Jinan municipal government agreed to terminate the franchise agreement of a solid waste company in accordance with the procedure in the form of minutes of the meeting. On September 15, 2015, the Environmental Protection Bureau issued a notice to a solid waste company to terminate the franchise agreement. A solid waste company refused to accept, successively filed administrative reconsideration and administrative litigation, requesting the cancellation of the notice of termination of the franchise agreement, and the municipal government and the Municipal Environmental Protection Bureau to compensate for the corresponding losses. The first-instance judgment of the Jinan Intermediate People's Court: the 1. rejected the plaintiff's request to revoke the defendant's Municipal Environmental Protection Bureau's ''Notice'' for the recovery of the franchise; the 2. defendant's Municipal Environmental Protection Bureau will withdraw the franchise within 30 days from the effective date of this judgment. The right to make a compensation decision for the losses caused to the plaintiff; the 3. rejected the plaintiff's other claims. After the second instance of the Shandong Provincial Higher People's Court and the retrial of the Supreme People's Court, the first instance judgment was upheld. Causes of 2. disputes-problems such as site selection and planning procedures in the early stage of project construction have not been properly handled. Judging from the content stated in the judgment document of the case, the Jinan medical waste centralized disposal project has inherent problems such as "temporary land" and "site selection" from the beginning. The construction land of the centralized disposal site for medical waste involved in the case is "temporary land", and the problem of construction land for the project has not been properly solved until the incident, and a solid waste company has repeatedly written to the environmental protection department on this issue. finally, it will be "temporarily solved" by extending the temporary transition period of land use twice ". Regarding the location of the permanent land for the project, the Jinan City Planning Bureau and other departments agreed to the new site proposed by a solid waste company. However, in the specific site selection process, the villagers in the surrounding villages did not cooperate, resulting in the project environmental impact assessment The work cannot be completed and the follow-up cannot be promoted. A solid waste company has written to the Environmental Protection Bureau several times, requesting to be coordinated and resolved. Due to the inability to complete a series of project construction procedures such as environmental assessment and site selection, the Environmental Protection Bureau terminated the franchise agreement on the grounds that "the hazardous waste business license and the temporary fixed-point planning of existing disposal sites expire. PPP projects are mainly applicable to infrastructure, public utilities and public services, and are closely related to the public interest, and the construction and operation process of the project is highly concerned by the public. Especially for public utility projects such as garbage treatment, sewage treatment, waste disposal, incineration and power generation, the acceptance and cooperation of the surrounding public to the project directly affects the smooth development of the project. This requires that the development of PPP projects must do a good job in preliminary planning and site selection, obtain project land in accordance with the law, and reserve space for long-term project bidding and expansion, and at the same time do a good job in information disclosure, communication, and benefit compensation to avoid project construction Public resistance in the process ensures the continuous and stable development of the project within the entire life cycle of more than ten years. At the same time, in the project contract, it is clearly agreed to handle the project construction procedures, deal with the public boycott of the responsibility of the main body and risk sharing, to avoid the actual occurrence of the later, but also for the occurrence of disputes to define the responsibilities of the parties to pre-set the corresponding contract basis. The government party's unilateral discharge right 3. PPP project contract. (I) unilateral rescission right based on public interest considerations The legal nature of PPP project contract is still inconclusive in the theoretical circle, mainly the nature of private law (general civil and commercial contracts), the nature of public law (administrative agreements) and the mixed nature of public and private (both civil and commercial contracts and administrative agreements). However, no matter how it is characterized, the nature of its "agreement" cannot be denied. Once the agreement is signed, it cannot be changed and terminated at will without legal reasons or legal procedures. After the PPP contract comes into effect, the project contract can be terminated based on the express breach of contract, the achievement of termination conditions, force majeure, serious breach of contract and other reasons stipulated in the Contract Law, and both parties can exercise the right of termination. However, PPP contract is not an ordinary civil contract formed entirely on the basis of private law autonomy, because one party is the administrative organ, the contract involves the administrative authority of the administrative organ, the purpose of the contract is for the public interest and other factors, PPP contract termination is different from the general civil and commercial contract. The second paragraph of Article 105 of the "Administrative Procedure Regulations of Shandong Province" stipulates: "In the course of the performance of an administrative contract, if a major situation that seriously damages the national interest or the public interest occurs, the administrative agency has the right to modify or terminate the contract". Therefore, compared with the general civil and commercial contract, the termination of PPP contract has a certain particularity, the government in order to protect the public interest in the specific circumstances of the right to unilaterally terminate the PPP contract. The judgment of the legality of the unilateral exercise of the right of rescission by the (II). According to the decision of the people's court in the above-mentioned case, the judgment of the government party to unilaterally terminate the PPP contract should be considered from the following three aspects: 1, the main body, whether there is a unilateral release of the "authority" In the above-mentioned case, the court found that according to the franchise agreement involved in the case, the municipal government is the authorized subject of the Jinan medical waste centralized disposal franchise, and the Municipal Environmental Protection Bureau has been authorized by the municipal government to sign an agreement on behalf of the municipal government, grant the franchise, and have the right to terminate the agreement and receive the franchise. Therefore, the Municipal Environmental Protection Bureau has the authority to grant and recover the franchise in accordance with the law. Moreover, the decision of the Municipal Environmental Protection Bureau to withdraw the franchise has been approved by the municipal government, and its authority and responsibilities have been confirmed by the municipal government. Therefore, the government party to terminate the PPP contract subject needs to have the subject qualification stipulated in the contract, that is, "in accordance with the contract" has the period of termination of the contract. 2, the entity, whether to meet the unilateral release of the "conditions" In the above-mentioned case, the people's court determined that the new project could not pass the environmental impact assessment due to the non-cooperation of the villagers near the site selection, and that a solid waste company could not fulfill the obligations of rebuilding, expanding and rebuilding the facilities, equipment and pollution prevention facilities for centralized disposal of medical waste as agreed in the agreement. As the centralized disposal of medical waste involves social and public interests, after the temporary fixed-point planning of the existing disposal site expires, it is unable to build new centralized disposal facilities, unable to perform the obligation of centralized disposal of medical waste stipulated in the Agreement, endangering the social and public interests, resulting in the failure to realize the purpose of the contract. According to the relevant provisions of the the People's Republic of China Contract Law and the Administrative Procedure Regulations of Shandong Province, "During the performance of administrative contracts, there are major circumstances that seriously damage the national or public interests, the administrative organ has the right to change or terminate the contract", and the conditions for the recovery of the franchise have been fulfilled. It can be seen that the government needs to unilaterally terminate the contract in accordance with the law due to the public interest, and the following two conditions must be met: first, the contract has a clear agreement on the relevant obligations. 3. Procedurally, whether the "procedure" for unilateral termination is carried out in accordance with the law" According to the provisions of Article 51 of the Measures for the Administration of Franchising of Infrastructure and Public Utilities, if a franchisee considers that a specific administrative act made by an administrative organ infringes upon its legitimate rights and interests, it shall have the right to state and defend itself, and may file an administrative reconsideration or administrative lawsuit in accordance with the law. In the above case, before taking back the franchise right, the Municipal Environmental Protection Bureau has served a preliminary notice of termination to a solid waste company, requiring it to submit a written reply and take substantive measures, which should be regarded as a protection of its right to know and statement. Accordingly, it is not improper to find that the procedure for making the alleged act was lawful. Therefore, when the government unilaterally terminates the PPP project contract, it should give the social capital party the right to state and defend itself, fulfill the necessary obligation to inform, and avoid constituting a procedural violation. In addition, according to Article 38 of the measures for the Administration of Infrastructure and Public Utilities Franchise: "during the franchise period, due to serious breach of contract or force majeure by one party to the franchise agreement, the franchisee is unable to continue to perform the obligations agreed in the agreement, or if there is an early termination of the agreement as agreed in the franchise agreement, the agreement may be terminated in advance after consultation with the creditors." Although the court in the above-mentioned case did not support the solid waste company's claim that the Environmental Protection Bureau did not reach an agreement with its creditors on the grounds that a solid waste company did not provide evidence, we believe that "consensus with creditors" is one of the procedures that the government should perform unilaterally to terminate the PPP contract. On the one hand, it is because the "Infrastructure and Public Utilities Franchise Management Measures" has clear provisions on this, on the other hand, almost all require a large amount of financing, after the termination of the contract need to properly project follow-up funding needs, creditor interests protection and other issues. The application of legal norms 4. the unilateral termination of PPP contracts. Article 3 of the measures for the Administration of Infrastructure and Public Utilities franchising stipulates: "the term" infrastructure and public utilities franchising "as mentioned in these measures refers to the fact that the government authorizes legal persons or other organizations the People's Republic of China at home and abroad by means of competition in accordance with the law, clarify their rights and obligations and risk sharing through agreements, and stipulate that they will invest in the construction and operation of infrastructure and public utilities within a certain period and scope and obtain profits. Provide public goods or public services." The "Agreement" involved in the case is an agreement between the Municipal Environmental Protection Bureau and a solid waste company on the franchise of the centralized disposal project of medical waste. It has the content of rights and obligations in administrative law. It is an administrative agreement and is subject to the adjustment of this method. Article 14 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Administrative Litigation Law" stipulates: "The people's court examines whether the administrative agency has performed in accordance with the law, performed the agreement in accordance with the agreement, or unilaterally changed or terminated the agreement is legal. While applying administrative laws and regulations, civil laws and regulations that do not violate the mandatory provisions of the Administrative Law and the Administrative Litigation Law may be applied." The the People's Republic of China Contract Law, as a civil legal norm for regulating contractual relations, can be applied by reference to administrative agreements. Article 8 of this Law stipulates that contracts established in accordance with the law shall be protected by law. The people's court determined that the meaning of the "Agreement" involved in the case was true and did not violate the prohibitive provisions of laws and administrative regulations. It should be determined to be legal and valid, and both parties should perform corresponding obligations in accordance with the agreement. Based on this, although the PPP contract has public law factors, even if the dispute over the right of rescission is resolved through administrative litigation, the realization of the purpose of the contract mainly stems from the "agreement" between the parties, and the civil and commercial legal norms such as contract law and the general principles of civil law can still be applied. Dispute resolution 5. the unilateral termination of PPP contracts. (I) disputes involving franchising should be submitted to administrative proceedings. The above-mentioned case as a government franchise agreement dispute, through the way of administrative litigation, the reason is that China's administrative procedure law on the government franchise agreement dispute resolution way has clear provisions. According to Article 12 of the new Administrative Litigation Law revised in November 2014 and Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Administrative Litigation Law implemented on May 1, 2015, disputes over government franchise agreements fall within the scope of administrative litigation. Before the above-mentioned new Administrative Litigation Law, the franchise agreement to whether a civil and commercial dispute or an administrative dispute is still inconclusive, judicial practice is also inconsistent, some as a civil and commercial dispute submitted to arbitration, some government parties take the initiative to propose is a civil lawsuit. The new Administrative Procedure Law and the judicial interpretation have solved this problem, making it clear that the franchise agreement dispute belongs to the administrative agreement dispute, and the administrative lawsuit should be brought. Accordingly, if the franchise part of the PPP project is separate from the other parts and is a separate franchise agreement, the dispute over the separate franchise agreement should be submitted to administrative proceedings. (II) disputes unrelated to the franchise should be given to the parties to choose In the case of Hong Kong Stall Industrial (Group) Co., Ltd. suing Taizhou Municipal People's government for investment promotion agreement ((2017) Supreme Law Bank No. 99), the Supreme People's court held that "civil agreement and administrative agreement, civil litigation and administrative litigation generally only have the function of legal division of labor and jurisdiction guidance. The trial of administrative agreement cases should not only apply administrative legal norms, but also apply civil legal norms that do not violate the mandatory provisions of administrative law and administrative procedure law. In practice, civil agreements may be referred to the administrative tribunal, and administrative agreements may also be referred to the civil tribunal. To distinguish between civil agreements and administrative agreements, civil litigation and administrative litigation, more consideration should be given to the convenience of trial, the effectiveness of dispute resolution, the authority of judgment results, and the consistency of judgment standards between higher and lower courts. Litigation is more conducive to the supervision of administrative power and the maintenance of public interests." Based on the public interest and agreement of PPP contract, the agreement on civil rights and obligations and the agreement on administrative rights and obligations are often intertwined and difficult to completely separate. The content of PPP contracts often involves construction, finance, land and other administrative management fields, and a number of administrative management functions. To review PPP contracts, it is necessary to consider whether it is true voluntary and consensus between the parties, and it should also consider administration. Specific legal regulations in the field, the binding force of the agreement on local governments and their functional departments, and the application of the principle of relativity of contracts. Compared with the civil procedure, the administrative procedure is more conducive to a comprehensive review of the legality and contract of the provisions of the administrative legal norms in the agreement. If social capital, as the plaintiff, has the right to choose in accordance with the law on issues such as the claim, the type of action and the subject matter of the action, it has the right to sue for all or part of the PPP contract. If the dispute does not involve the content of the government franchise, it is not necessary to choose to resolve the dispute through civil litigation. Moreover, if the remedy of civil litigation is excluded, when the social capital party defaults, the government cannot claim rights through civil litigation, and it is not conducive to the government's protection of rights and interests in accordance with the law.

2021-12-29

Viewpoint | Read in one article-How to set up a legal and effective family trust in China

Introduction As a complex legal and financial instrument with the characteristics of risk isolation, wealth management and inheritance, family trust has attracted more and more attention and favor of high net worth people in China in recent years. With the introduction of new capital management regulations, family trust business has gradually emerged in China in recent years, but high net worth clients still have a very vague understanding of domestic family trust, especially in recent years, the first domestic family trust preservation case in Hubei Province (2020 E 01 Zhibao No. 230) and the Lunan Pharmaceutical family equity trust dispute in Shandong Province, high net worth clients have greater doubts about setting up family trusts in the country. So how to prevent the family trust from being identified as a false trust (Sham Trust), so as to avoid the trust being broken down by the regulatory authorities, the judiciary or creditors, in the establishment of the family trust is particularly critical. From the perspective of law, this paper discusses how to set up a legal and effective family trust for high net worth clients in China, starting from the meaning of family trust, the establishment conditions, the establishment process and the role of lawyers in the establishment of family trust. Regulatory Definition of 1. Family Trust On August 17, 2018, the Trust Supervision and Management Department of the China Banking and Insurance Regulatory Commission issued the "Notice on Strengthening the Regulation of Trust Supervision during the Transition Period of Asset Management Business" (Trust Letter [2018] No. 37). This is the first time that my country has given a clear definition of "family trust" from a regulatory perspective. The document clearly states: "Family trust refers to the trust business in which the trust company accepts the entrustment of a single individual or family, takes the protection, inheritance and management of family wealth as the main trust purpose, and provides customized affairs management and financial services such as property planning, risk isolation, asset allocation, children's education, family governance, public welfare (charity) undertakings, etc. The main purpose of the trust is to preserve and increase the value of the trust property, and the trust business with the nature of special account financial management and asset management attributes is not a family trust." While actively encouraging trust companies to develop family trust business in China, the regulatory authorities have also released a signal to strengthen the supervision of family trusts, and made it clear: "The trust supervision offices of all banking regulatory bureaus shall, in accordance with the principle of" substance is more important than form ", strengthen the supervision of all kinds of trust businesses and innovative products, restore the essence of their businesses and risks, and apply one regulatory standard for similar businesses. The transaction management trust business should be treated differently, strictly control the legal compliance of the purpose of the trust, the source and use of the trust assets, strictly control the transaction management trust business that facilitates the regulatory arbitrage and violations of the law, and support the trust companies to carry out the transaction management trust business that meets the regulatory requirements and invests funds into the real economy." Statutory conditions for the establishment of 2. family trusts. (1) Legitimate purpose The "purpose of the trust" is a prerequisite for the establishment of the trust act. For example, the purpose of entrusting management to use assets, seek asset appreciation, isolate risk, and pass on wealth must be legal and possible, otherwise the establishment of the trust cannot be confirmed. The establishment of a family trust must have a legitimate trust purpose, the regulatory authorities have made it clear that the family trust is the protection, inheritance and management of family wealth as the main trust purpose, the transfer of assets, malicious evasion of debt, concealment of illegal income, money laundering, tax evasion and other illegal purposes are not protected by law. First of all, from the general law point of view, the establishment of a family trust is a civil legal act. According to the provisions of Article 143 of the Civil Code, three conditions shall be met for the validity of a civil legal act: 1. The perpetrator has the corresponding capacity for civil conduct; 2. The meaning is true; 3. It does not violate the mandatory provisions of laws and administrative regulations and does not violate public order and good customs. Secondly, from the perspective of special law, the Trust Law further stipulates that the trust must have a legitimate purpose. A trust with an "illegal purpose" can be roughly in the following four situations: first, the purpose of the trust violates relevant laws and administrative regulations, for example, for organizations or activities prohibited by laws and administrative regulations, such as terrorist organizations, cult organizations, anti-government organizations, and so on, financial support cannot be provided through the trust; second, the purpose of the trust harms the public interest; third, a trust is established specifically for the purpose of litigation or debt collection; fourth, the establishment of a trust harms the interests of its creditors. 2. Legal property Trust belongs to a property management system, with trust property as the center, if there is no trust property, the family trust will lose the value of existence. This requires that the settlor must have certain and legal property to establish the trust. (1) Determined property. The certainty of trust property should include three aspects of certainty, one is the certainty of the existence of trust property, the other is the certainty of the scope of trust property, and the third is the certainty of the ownership of trust property. The certainty of these three aspects first requires that the settlor cannot use property that does not exist or no longer exists as trust property; secondly, the property that requires the settlor to establish the trust has a clear and definite scope, which can be clearly distinguished from the settlor's other property; Thirdly, there is no dispute over the property ownership that requires the settlor to establish the trust. As for the type of property, the Trust Law and the regulatory authorities do not make clear restrictions, cash assets, movable property, real estate, equity/shares, stocks, funds, etc. However, at present, China's trust property registration system is not complete, in reality, for real property rights, aircraft, ships and aircraft and other special movable property, intellectual property rights and other property that need to change the registration of property rights, local registration authorities and tax authorities have different standards. Therefore, the availability of registration and tax costs are the main factors for customers to consider whether to include the corresponding assets. During the two sessions this year, Xiao Gang, a member of the National Committee of the Chinese People's Political Consultative Conference and former chairman of the China Securities Regulatory Commission, pointed out that private entrepreneurs will face major challenges in large-scale intergenerational inheritance in the next 10 to 20 years. The protection and inheritance of the wealth of private entrepreneurs not only involves the sustainable development of private enterprises themselves, but also involves a series of important issues such as economic growth, employment expansion, private investment, and the role of the third distribution to promote common prosperity. There is an urgent need to take precautions and strengthen Top-level design. However, the non-transactional transfer system of trust property is missing. Due to the vague provisions of the trust law itself, in practice, it is impossible to handle the non-transaction transfer of trust property directly according to the trust documents, which seriously restricts the establishment of non-capital family trusts and weakens the core function of private enterprises to use family trusts to realize the inheritance of equity property. Therefore, he suggested that the trust system should be improved in four aspects, such as amending the trust law, establishing the infrastructure supporting the family trust, introducing the judicial interpretation of the trust law and strengthening the supervision, so as to promote the implementation of the family trust. ② Legally held and allowed to circulate. According to the provisions of China's Trust Law, the property for the establishment of a family trust must be the property legally held by the principal and cannot be property that is restricted in circulation without approval. If the trustor establishes a trust with illegal property, the trust is invalid. For example, property acquired by illegal means such as theft, embezzlement or robbery, as well as property restricted in circulation without authorization, cannot be used as property for the establishment of a trust. ③ Legal tax payment. In the process of setting up a family trust, due diligence is required on the trust property of the settlor. For example, for cash assets, the settlor must issue income certificates, other certificates of obtaining the cash assets and tax payment certificates. Therefore, when setting up a family trust, it must be ensured that every asset injected into the family trust is the private undisputed property of the settlor that is legal, compliant and tax-paid. ④ Requirements for asset size. In our country, there is an asset size requirement for the establishment of a family trust, which requires that the amount or value of the family trust property be not less than $10 million. This requirement also makes family trusts mainly a way of "wealth security" and "asset inheritance" for high net worth clients. The setting of the asset size threshold is one of the main features that distinguish family trusts from other transactional trusts. 3. Subject requirements ① Principal: In China, the principal who establishes a trust must currently be a natural person with full civil capacity. In the case of a family trust, the settlor may be a single individual or family, and a single individual is a natural person with full civil capacity. The concept of the family, on the other hand, refers to the members of the family living together, in accordance with the general criteria for the concept of "family" in the Civil Code. As for "family members", my country's "Civil Code" also explains this, clarifying that spouses, parents, children and other close relatives living together are family members. It follows that in our establishment of a family trust, the settlor can be a natural person with full civil capacity or a family, I .e. a family of spouses, parents, children and other close relatives living together as the settlor. However, in order to clarify the property ownership relationship, the situation of taking the family as the principal needs more complex asset investigation and design the corresponding trust terms, so as to avoid the legal risk of trust property in the process of establishment, management and liquidation. ② Trustee: Trust Company. In China, a trust company is a financial institution established in accordance with the the People's Republic of China Company Law and the Measures for the Administration of Trust Companies, which is mainly engaged in trust business. For family trusts, the trust company can act as a trustee, accept the entrustment of a single individual or family, with the protection, inheritance and management of family wealth as the main purpose of the trust, to provide the trustee with customized transaction management and financial services trust business. ③ Beneficiary: The beneficiary is the person who can enjoy the benefit of the trust in the trust. The settlor may be the beneficiary or the sole beneficiary of the same trust. For family trusts, beneficiaries should include family members, I .e. spouses, parents, children and other close relatives living together. 4, family trust establishment form requirements. In our country, the establishment of a family trust should be in writing and completed by the formation of a trust contract. In the written document for the establishment of a family trust, the following shall be stated: (I) fiduciary purposes; The name or title and domicile of the (II) trustor or trustee; (III) beneficiary or range of beneficiaries; (IV) the scope, type and condition of the trust property; The form and method by which the (V) beneficiary obtains the benefit of the trust. 3. establishment process The process of establishing a family trust is generally implemented gradually in accordance with the steps of intention communication, background investigation, property due diligence, scheme design and communication, trust company project application and approval, filing with the regulatory authorities, project establishment, and investment allocation. However, the channels for high-net-worth individuals to set up family trusts are different. In addition to eventually landing in trust companies, many high-net-worth clients initiate the establishment of family trusts through private banks, insurance companies, securities companies, wealth management companies, family offices and other institutions. Therefore, the establishment process is slightly different. The role of 4. lawyers in the establishment of family trusts. At present, China's family trust business has been more and more high net worth people's attention, but the family trust in our country is still in the early stage of development. Whether a specific family trust can eventually play the role of risk isolation and wealth inheritance after its establishment still needs time to verify. Family trust, as the top-level design of all the wealth under the name of high net worth clients, integrates the protection, management and inheritance of all kinds of property, and integrates the comprehensive knowledge of law, taxation, insurance, investment, corporate structure, foundation, charity, wealth management and asset management, and is generally known as the service at the top of the wealth management business pyramid. Family trusts are mostly personalized service products with many design risk points. It is difficult for general financial practitioners to fully control the relevant legal risks. In the whole family trust design, strong comprehensive legal knowledge and litigation risk control ability are required. In order to control risks and costs, whether it is a private bank, insurance company, trust company, securities company or wealth management company, it is more inclined to let customers use standardized establishment methods, but this kind of service is difficult to meet the personalized needs of customers. Lawyers, as professionals with professional legal knowledge and legal policy acumen, play a very important role in the family trust business, and can assist high net worth people with their professional knowledge reserves to achieve the fundamental purpose of risk isolation and wealth inheritance. So as a lawyer, in practice should be how to assist high net worth clients, to achieve the establishment of family trust? First of all, for the principal who has the intention to establish a family trust, we can conduct a preliminary communication to understand the establishment needs and assets of the principal, and make a preliminary assessment of whether the conditions for the establishment of a family trust are met. Secondly, a confidentiality agreement should be signed with the settlor who has the conditions and intention to establish a family trust after initial communication, regardless of whether the final family trust is successfully established, priority should be given to ensuring the security and secrecy of the settlor and property information. Third, conduct due diligence on the trustee's trust property. Focusing on the identity of the family trust principal and beneficiary, the ownership and status of the trust property, and the principal's debts, the legality of the trust property shall be carefully examined in accordance with the principle of prudence stipulated by relevant laws to ensure the validity of the establishment of the trust property. Fourth, the formation of a preliminary family trust program. According to the wishes of the principal and the relevant materials obtained through the preliminary due diligence, a preliminary trust plan is formed. Fifth, the selection of cooperation agencies. The client needs to carefully choose the trustee, that is, the trust company. The professionalism and reliability of the trust company are very important. Choosing a trustworthy trust company is the key to the safety of trust assets. At the same time, it is also necessary to consider the trust company and the other required for the establishment of a family trust. The fees of the intermediary agency and the client's affordability, law firms and lawyers have rich intermediary agency resources, can be used as leaders to connect with the client, ultimately, assist the settlor in determining the selection of trust companies and other intermediaries. Sixth, determine the formal program. After the selection of the intermediary, the law firm and the trust company jointly determine a formal family trust plan for the relevant materials collected in the previous period. Seventh, the drafting of trust documents. A family trust is a set of legal contracts that agree on the rights and obligations of multiple stakeholders, such as the principal, trustee, beneficiary and protector, to the entrusted assets. The relationship between these stakeholders will change greatly over time, and this dynamic may cause new conflicts of interest. Therefore, under the premise of combining the current situation, in order to safeguard the interests of the client, it is an essential job for lawyers to draft and revise the relevant documents in the family trust business. Eighth, the plan is implemented on the ground. The family trust scheme must land in order to finally achieve the purpose of establishment. The transfer of the principal's trust property and the supervision of whether the trustee establishes a separate account is the core and key of the entire family trust. In this process, the lawyer may assist the principal in transferring the trust property, such as funds, to a separate account under the trustee's control in accordance with the trust contract to ensure the final implementation of the trust program.

2021-12-29