Viewpoint... The legal relationship between the transfer agreement of state-owned property rights and the placement of employees after the transfer of property rights.

1. brief An investment holding company and a company signed the Agreement on the Transfer of State-owned Property Rights, which agreed on the principle that the employment and placement of employees should follow the asset business and agreed that the transferee of property rights would undertake to carry out the employment and placement of employees of the target company in accordance with the relevant provisions and the provisions of the restructured employee placement plan. After the signing of the Agreement on the Transfer of State-owned Property Rights, an investment holding company has fulfilled the registration of the equity change of the target company. However, after the signing of the property rights transfer agreement, the property rights transferee and the target company did not fulfill the obligation of employee placement, resulting in long-term letters and visits by employees, forming a group incident. After that, an investment holding company paid hundreds of millions of yuan in employee placement fees from the perspective of easing labor conflicts and harmonious social relations. The target company and the property rights transferee believe that the State-owned Property Rights Transfer Agreement stipulates that an investment holding company has the coordination obligation to change the land auction of the target company to commercial and residential land and return the land income. As the land income has not been returned, the target company and the property rights transferee do not have the funds to fulfill the employee resettlement obligation. The plaintiff's investment holding company shall bear the increase in resettlement costs due to the delay in fulfilling the resettlement obligation. 2. Case Analysis An investment holding company has repeatedly litigated with the transferee of property rights and the target company on the issue of employee placement, and has now been judged by the Intermediate Court, the High Court and the Supreme Court on the subject of employee placement obligations and the basis of the claim of an investment holding company. (I) clarify the subject and responsibility of the target company's employee placement obligations after the transfer of property rights, and clarify the legal relationship between the advance payment of employee placement costs. 1. From the perspective of the historical evolution of the restructured enterprise, the target company has been changed into the current company through restructuring, the legal entity continues, and the labor relations of employees are naturally postponed, including continuing to sign labor contracts, paying social insurance, handling employee retirement procedures, etc. The target company has not changed as an employing unit, so it is necessary for the target company to be responsible for the obligation of employee resettlement. 2. According to the agreement on the transfer of property rights, the new company will receive all the employees of the original enterprise after the restructuring according to the principle that the employment of employees follows the asset business. According to the contract, the "Restructured Employee Resettlement Plan" is legally binding on the new company and the property rights transferee, and the property rights transferee undertakes to ensure that the new company strictly fulfills the corresponding rights and obligations to the employees in accordance with the resettlement plan. The Restructured Employee Resettlement Plan further clarifies that the subject of the employee resettlement obligation is the new company after the restructuring, and that the transferee of property rights provides guarantees by way of commitment in the contract, and shall also be liable for the debts incurred by the resettled employees and the resettled employees. 3. After the transfer of property rights, the transferor of state-owned property rights has no obligation to undertake the resettlement of employees, but continues to pay the resettlement expenses of employees, which is an act of advance payment. According to the above analysis, since the transferor of state-owned property rights has advanced the cost of employee placement after the transfer of property rights, the new company should have the obligation to repay the advance party after the restructuring. (II) simplify the legal relationship, another lawsuit to deal with the defendant's target company, property rights transferee's claims for breach of contract. 1. The legal relationship of the contract for the transfer of state-owned property rights is different from the labor legal relationship between the target company, the transferee of property rights and the placement of employees. According to the "Property Rights Transfer Agreement" and "Employee Resettlement Plan", or based on the purpose of enterprise restructuring and related restructuring norms, the property rights transferee and the target company have always been the main body responsible for the resettlement of employees and expenses, and shall bear all the resettlement obligations to the employees in accordance with the law, including all the resettlement expenses before and after the restructuring. This is the labor legal relationship between the two companies and their employees. Regarding the property rights transferee, the target company claims that because an investment holding company is lazy to perform the so-called breach of contract, such as land bidding and listing, resulting in the actual cost of employee placement to expand, resulting in its loss, belongs to the property rights transferee and an investment holding company between the contractual legal relationship. With regard to the above-mentioned different legal relationships, the property rights transferee and the target company may file a separate contract dispute lawsuit to claim losses caused by the breach of contract by an investment holding company, but because they do not belong to the same legal relationship, they may not be dealt with in the same case. 2, the property rights transferee, the target company did not file a counterclaim, nor did it claim the loss arising from the default of an investment holding company to prove, so the property rights transferee, the target company's breach of contract should not be dealt with in the same case. Counterclaim is different from the response defense, counterclaim is the defendant against the plaintiff's lawsuit, is an independent lawsuit, has the nature of the lawsuit. The purpose of the defendant's defense is to prove that the plaintiff's claim is partially or completely unfounded by rebuttal, and the purpose of the defendant's counterclaim is to offset or annex the claim of this claim, or to make the claim of this claim lose its meaning. In this case, the property rights transferee, the target company because of the long-term failure to fulfill the obligation of employee placement, so the lack of actual payment of employee placement costs of financial documents, so can not file a counterclaim, only through the way to respond to the defense against an investment holding company's claims. As analyzed above, the defendant's defense can be dealt with separately because it is not the same legal relationship as the plaintiff's claim of an investment holding company. It is based on the above-mentioned legal analysis that the effective judgment supported an investment holding company's claim for the return of hundreds of millions of yuan of employee placement costs to the property rights transferee and the target company, and made it clear that the property rights transferee and the target company could separately claim the loss of breach of contract. 3. practice experience summary Never forget the past, the future guide. In order to avoid the dispute between the placement of employees after the transfer of property rights and the order in which the original transferor of property rights performs the obligations of the contract, it is suggested that it should be clearly stipulated in the property rights transfer contract that the employee placement obligations of the target company should not be based on the completion of the obligations of the transferor of property rights in the property rights transfer agreement as a prerequisite for the performance of the employee placement obligations, the target company or the new company after the restructuring shall fulfill the obligation of employee resettlement on time in strict accordance with the employee resettlement period stipulated in the employee resettlement plan. In addition, in the course of the implementation of the agreement in this case, the land and real estate under the name of the new company after the restructuring have been changed to the name of the property rights transferee, in order to prevent the property rights transferee from transferring assets to evade the obligation of employee placement, the transferee of property rights, the actual controller of the transferee of property rights, etc. may be required to bear joint and several liability for the settlement of the employees of the new company under the "Property Transfer Agreement" and the obligations of the new company under the "Restructured Employee Resettlement Plan" and the debts arising therefrom. 4. relevant legal provisions Article 525 of the the People's Republic of China Civil Code If the parties owe debts to each other and there is no order of performance, they shall be performed at the same time. One party has the right to refuse its request for performance before the other party performs. A party has the right to reject its corresponding request for performance when the other party's performance of the debt is not in conformity with the contract. Article 552 If a third party agrees with the debtor to join the debt and notifies the creditor, or if the third party indicates to the creditor that it is willing to join the debt, and the creditor does not expressly refuse within a reasonable period of time, the creditor may request the third party to assume joint and several debts with the debtor within the scope of the debt it is willing to assume. Article 577 If one of the parties fails to perform its contractual obligations or the performance of its contractual obligations is not in accordance with the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. Article 687 If the parties agree in the guarantee contract that if the debtor is unable to perform the debt, the guarantor shall bear the responsibility for the guarantee, it shall be a general guarantee. The Supreme People's Court on the application<中华人民共和国民法典>The provisions of the Civil Code shall apply to civil disputes arising from legal facts after the implementation of the Civil Code. Civil disputes arising from legal facts prior to the implementation of the Civil Code shall be governed by the laws and judicial interpretations of the time, unless otherwise provided by the laws and judicial interpretations. The legal facts before the implementation of the Civil Code continue until after the implementation of the Civil Code. The provisions of the Civil Code shall apply to civil disputes arising from the legal facts, unless otherwise provided by law or judicial interpretation. The Supreme People's Court on the application<中华人民共和国民法典>Interpretation of the guarantee system (2021.1.1) Article 36 If a third party provides a creditor with a similar commitment document such as a shortfall, liquidity support, etc. as a credit enhancement measure, it has the intention to provide security, and the creditor requests the third party to assume the responsibility for the guarantee, the people's court shall deal with it in accordance with the relevant provisions of the guarantee. If the commitment document provided by the third party to the creditor has the intention of joining the debt or sharing the debt with the debtor, the people's court shall determine that the debt is joined under Article 552 of the Civil Code. If it is difficult to determine whether the commitment document provided by the third party in the preceding two paragraphs is a guarantee or a debt, the people's court shall determine it as a guarantee. If the commitment documents provided by the third party to the creditor do not conform to the provisions of the preceding three paragraphs, and the creditor requests the third party to bear the guarantee liability or joint and several liability, the people's court shall not support it, but it shall not affect its request to the third party to perform the agreed obligations or bear the corresponding civil liability on the basis of the commitment documents. Article 51 of the the People's Republic of China Civil Procedure Law, the plaintiff may abandon or change the claim. The defendant may admit or refute the claim and has the right to file a counterclaim. The Supreme People's Court on the application<中华人民共和国民事诉讼法>Article 126 The plaintiff adds claims, the defendant makes counterclaims, and the third party makes claims related to this case, which may be tried together. Article 221 If a dispute arises on the basis of the same fact and the parties bring separate suits in the same people's court, the people's court may try the case together. Article 233 The parties to a counterclaim shall be limited to the scope of the parties to the claim. If the counterclaim is based on the same legal relationship with the claims of this suit, there is a causal relationship between the claims, or the counterclaim is based on the same facts as the claims of this suit, the people's court shall hear the case together.</中华人民共和国民事诉讼法></中华人民共和国民法典></中华人民共和国民法典>

2021-12-29

J & T Capital Watch... Transfer methods and advantages and disadvantages of construction in progress.

In practice, it is often encountered that after the state-owned land use right holder obtains the land use right through the transfer method, it cannot be developed due to various reasons, and it is necessary to transfer the land use right and the above-ground buildings and attachments. This paper summarizes the common transfer methods in practice, and briefly analyzes the advantages and disadvantages of various methods, so as to formulate a more targeted plan. Transfer mode of 1. construction in progress The process of transfer of construction in progress is that the acquirer and the transferor transfer the construction in progress owned by the transferor and the land use rights attached to it to the acquirer by way of transfer of construction in progress. 1. Program advantages For the acquirer, after acquiring the ownership of the construction in progress, the acquirer entrusts the team to carry out project management, engineering construction, design and research and development, cost and cost, etc., which has a large margin, which is conducive to giving full play to the advantages of the acquirer's management and development experience, and also facilitates the acquirer to integrate its brand advantages into the construction in progress project, so that the acquisition target can appreciate after the transaction. 2. Key points of concern (1) Conditions of transfer According to the provisions of Article 39 of the the People's Republic of China Real Estate Administration Law, if the land use right is obtained by way of transfer, more than 25% of the total development investment shall be completed when the real estate is transferred. Therefore, the acquirer needs to intervene in the early stage, invest in the project in advance, and then trade when the project reaches 25% of the investment intensity. (2) State-owned enterprises enter the transaction. According to the provisions of the Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises, state-owned and state-controlled enterprises and state-owned actual control enterprises implement the external transfer of production equipment, real estate, construction in progress, land use rights, creditor's rights, intellectual property rights and other assets of a certain amount or more. After performing the corresponding decision-making procedures in accordance with the internal management system of the enterprise, it shall be publicly carried out in the property rights transaction institution. The Notice of the State-owned Assets Supervision and Administration Commission of Shandong Province on Further Regulating Matters Relating to the Transfer of Assets of Provincial Enterprises, issued on November 15, 2021, once again emphasizes that "the transfer of assets of each enterprise shall be carried out in an open manner, with strict control over the non-public agreement method. The transfer of assets with an original book value of more than 3 million yuan (including 3 million yuan) or a net book value of more than 1 million yuan (including 1 million yuan) shall, in principle, in principle, in a single or in the Shandong property rights, shall be carried out, in." Therefore, in the case of meeting the transfer conditions, the state-owned enterprises that meet the public transfer conditions should perform the procedures of entering the market for listing when transferring the construction in progress. (3) Tax issues The types of taxes involved in the transfer of land use rights include value-added tax and surcharges, land value-added tax, deed tax, stamp tax and income tax, which are heavier. (4) Risk of delisting failure In the absence of delisting of the transferee or other failure to reach cooperation, there is a risk that the cooperative development funds will be recognized as loans in the early cooperation process, resulting in the risk that the transferor will bear the return of funds and the payment of capital occupancy fees after the failure of the project cooperation. 2. equity transfer method The state-owned land use right holder (the transferor), by transferring the company's equity or increasing its capital, enables the acquirer to indirectly control the real estate resources in the name of the transferor by holding the transferor's equity and to obtain income from the business activities of such real estate resources through the acquisition of equity or capital increase. 1. Program advantages The transfer of land through equity transfer, some tax departments allow the temporary non-payment of land value-added tax and other taxes, can reduce the current land transfer costs. 2. Key points of concern (1) There is a risk that the equity transfer agreement will be deemed invalid. After searching the relevant cases, the Supreme People's Court (2014) Min Er Zhong Zi No. 264, the Supreme People's Court (2013) Min Yi Zhong Zi No. 138, and the Jiangsu Provincial Higher People's Court (2014) Su Shang Zai Zhong Zi No. 0006 The case shows that some court judgments believe that the transfer of company equity and the transfer of land use rights as company assets are two independent legal relationships, the current law does not have the effect of mandatory provisions prohibiting the transfer of land use rights or real estate projects in the form of equity transfer of real estate project companies. However, there is another judgment point of view in practice. Taking the Fuyang People's Court (2015) Hangfu Shang Chu Zi No. 3183 case as an example, the court held that: the behavior is fundamentally based on the equity transfer agreement. The essence is the sale of state-owned land use rights. This act is not a legal act and is a legal form to cover up the illegal purpose. Therefore, it is considered that the equity transfer agreement is a legal form to cover up the illegal purpose and should be deemed invalid. (2) There is a risk of land value-added tax being levied by the Inland Revenue Department. According to the Official Reply of the State Administration of Taxation on the Levy of Land Value-added Tax on the Transfer of Real Estate in the Name of Equity Transfer (Guoshuihan [2000] No. 687), in view of the fact that Shenzhen Energy Group Co., Ltd. and Shenzhen Energy Investment Co., Ltd. jointly transfer 100% of the equity of Shenzhen Energy (Qinzhou) Industrial Co., Ltd., and these assets in the form of equity are mainly land use rights, above-ground buildings and attachments, this should be taxed in accordance with the provisions of the land value-added tax. In practice, there are disputes between local tax authorities on whether to pay land value-added tax and deed tax through equity transfer. 3. to change the land to the subsidiary and develop the way This method refers to the parent company and the land management department to sign the "state-owned land use right transfer agreement", and pay the land transfer fee, obtain the state-owned land use right certificate and obtain the land transfer fee compliance bill into the account, and then plan to set up a wholly-owned subsidiary in the project location or the project company to develop the land. There are usually two ways to change the land and above-ground attachments to the name of the subsidiary: first, to invest in the newly established subsidiary by valuing the land and above-ground attachments. Second, according to the net value of free transfer to the name of the new subsidiary. (I) valuation investment equity method 1, still need to meet the conditions for the completion of the total development investment 25%. Article 3 of the Provisions on the Administration of Urban Real Estate Transfer stipulates that "the transfer of real estate referred to in these Provisions refers to the act of the real estate right holder transferring his real estate to another person through sale, gift or other legal means. The other legal means referred to in the preceding paragraph mainly include the following acts: (1) taking shares at the price of real estate, establishing an enterprise legal person with another person, and changing the ownership of the real estate......". Paragraph 5 of Article 2 of the Guiding Opinions of the General Office of the State Council on Improving the Secondary Market for the Transfer, Lease and Mortgage of the Right to the Use of Construction Land (No. 34 [2019] of the State Council), "Clarify the form of transfer of the right to the use of construction land. All kinds of acts leading to the transfer of the right to use construction land are regarded as the transfer of the right to use construction land, including the transfer of the right to use construction land in the form of sale, exchange, gift, capital contribution, judicial disposal, asset disposal, merger or division of legal persons or other organizations. Where the right to use construction land is transferred, the ownership of above-ground buildings and other attachments shall be transferred together. If the transfer of real estate is involved, the relevant procedures for the transfer of real estate shall be handled in accordance with the relevant laws and regulations on the transfer of real estate". Therefore, the land use right is regarded as the transfer of land use right. Therefore, in the process of making shares, the transferor still needs to complete the investment bottom line of 25% of the total development investment in accordance with the provisions of Article 39 of the the People's Republic of China Real Estate Management Law. 2. Heavy tax burden According to regulations such as the Regulations on the Pilot Program of Changing Business Tax to Value-Added Tax in Annex II of Caishui [2016] No. 36, investment in intangible assets such as land and real estate such as houses should be used as sales to pay value-added tax, and the amount of output tax can be calculated., Issue a special VAT invoice to the invested enterprise as a proof of deduction of input tax. Therefore, investments in non-monetary assets are subject to VAT as sales. Article 2 of the Circular of the Ministry of Finance and the State Administration of Taxation on the Enterprise income tax Policy for Investment in non-monetary assets (Finance and Taxation [2014] No. 116) stipulates: "when an enterprise invests abroad with non-monetary assets, it shall evaluate the non-monetary assets and calculate and confirm the income from the transfer of non-monetary assets according to the fair value after deducting the tax basis after the assessment." Therefore, the capital contribution at the price of land use rights shall be subject to enterprise income tax. (II) free transfer method 1, state-owned enterprises must meet the conditions for free transfer. According to Article 2 of the Interim Measures for the administration of the free transfer of state-owned property rights of enterprises, the term "free transfer of state-owned property rights of enterprises" refers to the free transfer of state-owned property rights of enterprises between government agencies, institutions, wholly state-owned enterprises and wholly state-owned companies." If the conditions for free transfer are met, the approval process shall be fulfilled. 2. Tax advantages Article 3 of the Notice of the Ministry of Finance and the State Administration of Taxation on Issues Concerning the Treatment of Enterprise Income Tax on Promoting Enterprise Restructuring (Caishui [2014] No. 109) stipulates that the transfer of equity or assets between 100 per cent of resident enterprises directly controlled by the same or 100 per cent of resident enterprises directly controlled by the same or the same number of resident enterprises is based on the net book value, where there is a reasonable business purpose, the main purpose is not to reduce, exempt or postpone the payment of taxes, the equity or assets transfer does not change the original substantive business activities of the transferred equity or assets within 12 consecutive months, and the transfer-out enterprise and the transfer-in enterprise have not confirmed the profit or loss in accounting, the following provisions may be selected for special tax treatment, that is, the transfer-out enterprise and the transfer-in enterprise do not recognize the income, determined by the original net book value of the transferred equity or asset, no income tax may be paid; at the same time, the transfer is based on the original book value, no value-added, therefore, no value-added tax or land value-added tax is required. The second paragraph of Article 6 of the Notice of the Ministry of Finance and the State Administration of Taxation on Further Supporting the Restructuring and Reorganization of Enterprises and Institutions (No. 37 [2015] of the Ministry of Finance) stipulates: "The transfer of ownership of land and houses between enterprises belonging to the same investment entity includes between the parent company and its wholly-owned subsidiaries, and between wholly-owned subsidiaries of the same company, the transfer of land and house ownership between the same natural person and the sole proprietorship or one-person limited company established by the same natural person shall be exempted from deed tax." The free transfer of land use rights between parent and subsidiary companies is exempt from deed tax. In summary, the main factors affecting the company's decision to transfer land use rights to the outside world are: the company's own land development progress; tax costs; project plan completion time requirements; and other issues involving state-owned procedures. Therefore, in practice, each project company should consider the plan comprehensively and formulate a practical implementation plan for the company on the basis of legal compliance.

2021-12-28

Government Investment and Financing Legal Observation (II) | Data Analysis of PPP Project Dispute Cases

1. sample sources and retrieval methods 1. Case Source: Waco Advanced Legal Information Database 2. Search scope: nationwide 3. Referee date: January 1, 2019-November 22, 2021 4. Search keyword: full "PPP + project contract" 5. Type of instrument: Judgment/ruling 6. Number of documents: 601 7. Retrieval time: November 22, 2021 2. general situation As can be seen from the year distribution map of the number of cases, from 2019 to 2020, the number of cases involving PPP projects nationwide showed an increasing trend, with an increase of about 67.5 percent in 2020 compared to 2019. The number of litigation-related cases decreased significantly in 2021 compared to 2020, and although there is a lag in the conclusion of cases, the number of cases is likely to be lower than the number of litigation-related cases in 2019. The data collection time of this report is as of November 22, 2021, and the number of cases involving PPP projects after November 2021 is yet to be further observed. Figure 2.1 Distribution of the Number of Cases by Year With the popularization and application of PPP model and its vigorous development, the disputes caused by PPP projects are increasing year by year. On the one hand, since 2014, PPP projects are still expanding in scale, and the expansion of the market has increased the number of disputes as a whole. On the other hand, since the end of 2017, the General Office of the Ministry of Finance issued the ''Notice on Regulating the Management of the Comprehensive Information Platform Project Library of the Government and Social Capital Cooperation (PPP) ''(Cai Ban Jin [2017] No. 92), the ''Ministry of Finance Regarding the Promotion of the Implementation Opinions on the Standardized Development of Government and Social Capital Cooperation (Cai Jin [2019] No. 10)," Government Investment Regulations "and other documents have been issued successively, the development of standardization is bound to lead to a rise in the number of disputes. With the development of PPP projects and the establishment and improvement of standardized institutional mechanisms, the PPP model, social capital parties and government departments will gradually return to rationality, and the number of PPP project disputes will gradually decrease. In terms of geographical distribution, the current PPP project litigation cases are mainly concentrated in Henan Province, Hunan Province and Shandong Province, accounting for 10.85 percent, 9.32 percent and 8.47 percent respectively. Among them, the number of PPP project disputes in Henan Province is the largest, reaching 64. Figure 2.2 Geographical distribution of cases It can be seen that compared with other provinces and cities in China, the number of PPP project disputes in Henan Province, Hunan Province and Shandong Province is more, and the legal risks caused by PPP projects are more prominent. 3. Case and Industry Analysis As can be seen from the distribution of cases shown in the figure, the main types of cases involved in PPP project litigation cases from January 1, 2019 to November 22, 2021 are civil, with 530 cases (some of which are civil cases, which are ignored here), accounting for 82.55 per cent, followed by administrative and criminal cases. Figure 2.3 Distribution of Cases Civil cases include contract disputes, property rights disputes, tort liability disputes, labor and personnel disputes, financial disputes and intellectual property disputes caused by PPP projects, of which 381 were contract disputes, accounting for 63.4 per cent. Among the contract disputes, the top three cases are construction project contract disputes, sales contract disputes, and loan contract disputes. There are 42 administrative cases involved in PPP project litigation, including confirming that administrative acts are illegal and advocating the revocation of administrative penalty decisions. Criminal cases include crimes such as embezzlement, bribery, abuse of power, embezzlement, collusion in bidding, and contract fraud by impersonating PPP projects. It can be seen that because PPP projects involve multiple fields and multiple legal relationships, the types of disputes are diversified. Figure 2.4 Case Industry Classification From the industry classification, it can be seen that the industry distribution of PPP project-related cases is mainly concentrated in the construction industry (44%), leasing and business services (11%), scientific research and technical services (8%), water conservancy, environment and public facilities management (7%), and real estate (6%). Among them, there are 226 in the construction industry, 54 in the leasing and business services industry, 42 in the scientific research and technical services industry, 38 in the water conservancy, environment and public facilities management industry, 30 in the real estate industry, and 124 in other industries. Analysis of 4. Trial Procedures and Judgment Results Figure 2.5 Procedural classification of cases From January 1, 2019 to November 22, 2021, there were a total of 601 cases. As can be seen from the classification chart of case procedures, the trial procedures of PPP project-related cases were mainly first-instance cases (59.37 per cent), 357 cases, second-instance cases (29.35 per cent), 176 cases (2.99 per cent), retrial cases (18 per cent) and enforcement cases (6.8 per cent). Figure 2.6 Case Judgment Results ◆ First Instance Judgment Results According to the data on the results of the first instance, 241 cases, or 40.13 per cent, were fully/partially supported; 60 cases, or 9.95 per cent, were fully dismissed; and 33 cases, or 5.47 per cent, were dismissed. ◆ Judgment Result of Second Instance According to the data of the judgment results of the second instance, 126 cases, accounting for 20.9 per cent, were upheld, while 40 cases, accounting for 6.63 per cent, were revised. ◆ Results of retrial judgment According to the data of the retrial judgment results, there were 8 cases that upheld the original judgment, accounting for 1.33 per cent. Amount Analysis of 5. Dispute Figure 2.7 Amount of subject matter involved Through the visual analysis of the amount of the PPP project involved in litigation, it can be seen that the number of cases with a bid amount of less than 500000 yuan is basically the same as the number of cases with a bid amount of more than 500000 yuan, with 282 cases. From the data alone, the PPP project involves a huge amount of investment, the case of the amount of the subject matter of the dispute does not form a large contrast. Combined with the above, it can be seen that at present, it is mainly construction contract disputes, sales contract disputes, loan disputes, etc., the contract disputes between the government and the social capital party have not been triggered on a large scale. After a detailed analysis of specific cases, in PPP project litigation, the social capital party is often in an active position, taking the initiative to file a relevant lawsuit to claim rights and interests after the dispute occurs, while the government party is often in a passive position, usually not the party that initiates the lawsuit. Analysis of 6. trial period Figure 2.8 Trial Period Through the visual analysis of the trial period, it can be seen that the trial time under the current conditions is more in the range of 31-90 days, with an average time of 53 days. Application Analysis of 7. High-frequency Law Through the search of cases, it is found that the high-frequency law mainly includes the following two aspects: (1) High-frequency substantive law Figure 2.9 High-frequency entity law (2) High-frequency procedure law.

2021-12-28

Point of view... "shutdown period" related issues combing.

Foreword In the field of labor law in China, there are a large number of laws and regulations and judicial interpretations, and the relevant provisions are complicated, leading to endless disputes. At the same time, based on the consideration of "localization" or "adjusting measures to local conditions", the application of labor law has a strong "regional nature". This paper starts with the laws and regulations, rules and normative documents in the field of labor law, and combines the cases to sort out the related issues of "work stoppage and pay period. Premise for 1. to enjoy the treatment of work stoppage and pay The first paragraph of Article 33 of the Regulations on Work Injury Insurance stipulates that if an employee suffers from an accident at work or suffers from an occupational disease and needs to suspend work to receive work-related injury medical treatment, the original wages and benefits will remain unchanged during the period of suspension of work and salary, and the unit to which he belongs shall pay monthly. According to this provision, it can be seen that there are two prerequisites for the enjoyment of the benefits of the suspension period: first, the employee has suffered an accident injury or occupational disease as a result of work (all work-related injuries shall be recognized by the labor administrative department). The duration and determination of the period of 2. suspension of pay. (I) the duration of the period of suspension of pay The second paragraph of Article 33 of the "Regulations on Work Injury Insurance" stipulates that the period of suspension of work and pay is generally not more than 12 months. If the injury is serious or the situation is special, it may be appropriately extended after confirmation by the labor ability appraisal committee of the city divided into districts, but the extension shall not exceed 12 months. The provision specifies the upper limit of the suspension pay period and the upper limit of the extension. Under normal circumstances, the injury situation can be clearly determined by combining the injury situation with the "Classification Catalogue of Work-Related Workers' Work Suspension and Pay Period" issued by various places; for the injury situation that is not in the "Classification Catalogue of Work-Related Workers' Work Suspension and Pay Period", it is generally calculated according to 6 months. For provinces that have not issued the "Classification Catalogue of Work-Related Workers' Work Stoppage and Pay Period", it shall be determined in combination with the leave certificate of the medical institution or the medical termination period. The method of determining the pay period for (II) work stoppage. After consulting the local labor law regulations and regulations, there are three main ways to determine the period of work stoppage and pay: First, it is determined by the employer directly according to the local work stoppage period catalogue, such as Shandong Province, Tianjin City, Chongqing City, etc. Article 3 of the measures for the Administration of work-related injury workers in Shandong Province shall promptly submit the diagnosis certificate issued by the work-related injury medical service institution to the unit to apply for work stoppage and pay. The employer shall, in accordance with the diagnosis certificate issued by the medical institution of the agreement, determine the period of suspension of work and pay in accordance with the "Classification Catalog of Work-related Workers in Shandong Province" (Annex 1), and notify the injured worker in writing (Annex 2). Article 3 of the measures for the Administration of work stoppage and salary retention of industrial injured workers in Tianjin, industrial injured workers or their close relatives shall promptly submit the diagnosis certificate issued by the medical institution of the industrial injury insurance agreement or the first diagnosis institution to the employer. The employer shall, within 10 working days after receiving the materials, determine the suspension period of the injured workers according to the diagnosis certificate issued by the medical institution and in accordance with the classification catalogue of the suspension and pay period of the injured workers in Tianjin (Annex 1), issue the notice on the determination of the suspension and pay period of the injured workers (Annex 2) to the injured workers, and send a copy to the social insurance agency at the same time. Article 4 of the measures for the Administration of work-related injury workers in Chongqing shall promptly hand over the diagnosis certificate issued by the work-related injury medical service institution to the unit. According to the diagnosis certificate of the work-related injury medical service institution, the employer shall determine the suspension and pay period of the injured employee in accordance with the "Catalogue", and notify the injured employee in writing. The second is determined by the labor ability appraisal committee, such as Shanxi Province, Ningxia Hui Autonomous Region, and Guangdong Province. Article 3 of the measures for the Administration of the period of suspension of work-injured workers in Shanxi Province (for trial implementation), the period of suspension of work-injured workers shall be confirmed by the Labor ability Appraisal Committee in accordance with the diagnosis certificate issued by the "Classification catalogue of the period of suspension of work-injured workers in Shanxi Province" (see annex) and the medical institution. The work-injured employees who have been confirmed by the Labor Ability Appraisal Committee shall notify the work-injured employees, employers and agencies in writing. "Ningxia Hui Autonomous Region Work Injury Workers' Work Suspension Period Management Measures" Article 3 Work Injury Workers' Work Suspension Period shall be determined by the District City Labor Ability Appraisal Service Center (hereinafter referred to as the Labor Ability Appraisal Agency) in accordance with the "Ningxia Hui Autonomous Region Work Injury Insurance Work Suspension Period Classification Catalogue" and work injury insurance agreement medical institutions in accordance with the regular treatment period of the injured part (unstable period and recovery period time) and diagnosis certificate confirmation. The work-injured employees who have been confirmed by the labor ability appraisal agency shall notify the work-injured employees, the employer and the work-related injury insurance agency in writing. Article 4 of the measures for the Administration of work-injured workers in Heilongjiang Province if the injuries suffered by work-injured workers are not included in the Classification catalogue of work-injured workers in Heilongjiang Province, the diagnosis certificate issued by the medical institution or the appraisal conclusion of the work stoppage period made by the municipal labor ability appraisal committee divided into districts shall be the work stoppage period. If the injured worker is injured in many parts or tissues and organs, the longest period of the corresponding work stoppage period shall be taken as the work stoppage period of the injured worker. "Guangdong Province Work Injury Insurance Regulations" Article 25 If an employee needs to suspend work due to work-related injuries to receive work-related injury medical treatment, the original wages and benefits will remain unchanged during the period of suspension and salary retention, and the unit to which he belongs shall pay monthly. The period of suspension of pay shall be determined according to the end period of medical treatment and shall be confirmed by the labor ability appraisal committee, and the maximum period shall not exceed 24 months. Third, it is partly determined by the employer and partly by the labor capacity appraisal committee. Article 3 of the measures for the Administration of work-related injury workers in Heilongjiang Province shall promptly submit the diagnosis certificate or leave certificate issued by the work-related injury medical institution to the employer, and the employer shall, according to the diagnosis certificate of the work-related injury medical institution, in accordance with the classification catalogue of the work-related injury workers' suspension and salary period in Heilongjiang Province, and notify the injured employee in writing. Article 4 If the injury suffered by an injured worker is not included in the Classification Catalogue of Work-off Period for Work-Related Workers in Heilongjiang Province, the conclusion of the work-off period shall be the period of work-off and pay-off by the medical institution or the municipal labor capacity appraisal committee of the district. If the injured worker is injured in many parts or tissues and organs, the longest period of the corresponding work stoppage period shall be taken as the work stoppage period of the injured worker. Summary: For the issue of the period of work stoppage and pay period confirmation, this paper believes that it should first confirm whether the province where the employer is located has issued the "Measures for the Management of Work-Related Workers Work Stop and Pay" and the "Classification Catalogue of Work-Related Workers Work Stop and Pay Period". If the province where you are located has issued the above-mentioned documents, the employer will normally determine the period of suspension of work in accordance with the above-mentioned management measures and catalogues. If the province where you are located has not issued the above-mentioned similar documents, it needs to be determined in combination with the "Regulations on Work Injury Insurance" and the local regulations and evidence materials on the "Regulations on Work Injury Insurance"; the start time of the work stoppage period is generally from the day or the next day when the work injury occurs, until the employee's labor ability level is appraised or returned to work. Remedy for 3. employees to dispute the duration of the suspension pay period or the unit refuses to confirm the suspension pay period. This problem is only for the employees in the provinces that have issued the "Administrative Measures for Work-Related Workers to Stop Work and Pay" and the "Classification Catalogue of Work-Related Workers to Stop Work and Pay Period. (I), there are two types of relief for employees who have a dispute over the period of suspension of pay: First, if there is a dispute between the injured worker or his close relatives (relatives) and the employer over the period of suspension of work, they can submit an application for confirmation to the municipal labor ability appraisal committee divided into districts within a certain period of time, and the labor ability appraisal committee shall make a determination; if they are still dissatisfied with the conclusion made by the municipal labor ability appraisal committee divided into districts, they may apply to the provincial labor ability appraisal committee for reconfirmation within a certain period, the conclusion made by the provincial labor capacity appraisal committee is the final conclusion. Second: If the injured worker has any objection to the suspension period determined by the employer, he can apply to the labor ability appraisal committee of the overall planning area to directly determine the suspension period. The (II)'s relief method for the unit's refusal to confirm the suspension and pay period only exists in the "Administrative Measures for the Suspension and Pay Period of Work Injury Workers in Tianjin". The relevant provisions of this document are as follows: Article 6 If the employer refuses to determine the period of suspension of work and pay, the injured worker or his close relatives may apply to the labor capacity appraisal committee of the jurisdiction for confirmation. The labor ability appraisal committee shall, according to the industrial injury identification decision of the administrative department of human resources and social security, the diagnosis certificate of medical institutions and the classification catalogue of work stoppage and salary period of industrial injured workers in Tianjin, confirm the period of work stoppage and pay within 10 working days, issue a confirmation notice, and notify the social insurance agency and the unit where the industrial injury worker belongs. Summary: Combined with the above provisions and the search case, this paper holds that the employee due to the suspension of pay period of the objection, can obtain the relief way is relatively limited, the confirmation of the suspension of pay period generally does not fall within the scope of the court's authority. In the provinces or cities that have issued the "Administrative Measures for Work Suspension and Salary Retention of Work Injury Workers", most courts will directly determine it based on this method, but some judges believe that the court should not directly determine the period of work suspension and salary retention. For example, the (2018) E 01 Min Zhong No. 6885 judgment made by the Wuhan Intermediate people's Court holds that it is not within the scope of the people's court to confirm the suspension of work and pay period. The improper period of suspension of work and salary retention determined by the court of first instance ex officio shall be corrected. The plaintiff may claim separate rights on the confirmation of the pay period and the payment of wages. For the provinces or cities that have not issued the measures for the Administration of work stoppage and salary retention of injured workers, they can only be judged in combination with evidence materials. For example, the judgment (2020) Su 06 Min Zhong No. 2228 issued by Nantong Intermediate People's Court held that Ji Mou failed to provide other evidence to prove his claim of suspension of work and pay period except four certificates of illness. Therefore, the court of first instance confirmed that the suspension of work and pay period was not improper based on four certificates of illness. Ji Mou failed to provide evidence for his appeal claim, and the court could not support it. 4. whether the employee's work-related injury caused by the infringement of the third party, the lost work fee and the salary during the work stoppage period can be obtained at the same time. From the retrieved cases on this issue, there are two views for and against this issue: Among them, the main supporters are Changzhou Intermediate People's Court (2018) Su 04 Minzong No. 4234 Judgment, Suzhou Intermediate People's Court (2019) Su 05 Minzong No. 5577 Judgment, Dalian Intermediate People's Court (2019) Liao 02 Minzong No. 5894 Judgment, Urumqi Intermediate People's Court (2019) Xin 01 Minzong No. 2279 Judgment. This view holds that the regulations on Industrial injury Insurance do not have unlimited and prohibitive provisions on the treatment of employees during the period of work suspension, and the wages during the period of work suspension do not belong to the scope of medical expenses for work-related injuries. it is a matter borne by the employer as stipulated in the regulations on Industrial injury Insurance, and the civil liability borne by the third party cannot exempt the employer from its legal obligations. Those who oppose the above issues are Qingdao Intermediate People's Court (2019) Lu 02 Minzong No. 9382 Judgment and Shenyang Intermediate People's Court (2019) Liao 01 Minzong No. 7704 Judgment. The view is that, although wages and lost wages are based on different legal provisions, but from a substantive point of view, both are compensation for the actual reduction in income of workers who are unable to perform normal work due to injury. If the worker has received the lost work fee, the direct cost loss has been completely filled, and if the wage for the suspension period is obtained again, there is repeated compensation, which is not in line with the principle of civil compensation. Summary: Judging from the search results, local courts have not formed a unified judgment on the question of whether the lost work fee and the salary during the work-related injury caused by the infringement of the third party can be obtained at the same time. Therefore, disputes involving this issue should be judged and considered in combination with the region. This article has no theoretical elaboration, only from a practical point of view to sort out the three issues related to the suspension of pay period, if you can help colleagues in litigation or non-litigation issues encountered, the author is deeply honored.

2021-12-27

"Administrative Litigation Vision" (II) | Administrative Litigation Jurisdiction

Foreword The scope of accepting cases in administrative litigation is to solve the problem of the division of authority between the people's courts and other state organs in handling administrative cases, and to solve the problem of external division of labor, while the jurisdiction of administrative litigation is to divide the division of authority between the people's courts at all levels within the people's court system and between the people's courts at the same level, and to solve the problem of internal division of labor. In a sense, the scope of accepting cases determines the scope of administrative cases for the entire people's court from a macro perspective, while jurisdiction determines the scope of administrative cases for a single people's court from a micro perspective. The Concept of 1. Administrative Litigation Jurisdiction Administrative litigation jurisdiction refers to the division of authority between different levels and local people's courts to accept administrative cases of first instance. It is an important litigation legal system involving basic issues such as the organizational system of administrative trials and the protection of citizens' litigation rights. It is the division of jurisdiction between courts. The jurisdiction of administrative litigation is to solve the problem of which level and which court to sue when citizens, legal persons or other organizations believe that administrative acts belonging to the scope of court cases infringe upon their legitimate rights and interests. Jurisdiction is the division of powers of the people's courts to accept administrative cases of first instance. With the exception of railway transport courts, other special people's courts and people's tribunals do not hear administrative cases, nor do they examine and enforce cases in which administrative organs apply for the enforcement of their administrative acts. Jurisdiction is the division of authority between the higher and lower courts and the courts at the same level to accept administrative cases. In other words, the jurisdiction should solve the problem of division of competence between different trial levels and different regional courts at the same level. The division of jurisdiction does not include the division of second instance and retrial cases. We implement a four-level two-instance system. The second instance is the continuation of the first instance. The jurisdiction of the first instance case is determined, and the jurisdiction of the second instance case is determined accordingly. Chapter III of the Administrative Procedure Law has 11 provisions on the content of administrative litigation jurisdiction in China. For the people's court, it specifically clarifies the jurisdiction of administrative cases between the courts, that is, it stipulates which case should be accepted and tried by which court, and how the trial of administrative cases between different courts should be divided. For citizens, legal persons and other organizations, it solves the problem of which court to sue. In judicial practice, because the determination of jurisdiction is correct or not, it is often closely related to the fair trial of the case and the smooth implementation of the judgment results. It is even believed that "choosing the jurisdiction court is equivalent to winning half of the lawsuit". In procedural law, acts that violate the jurisdiction system in legal provisions are regarded as serious violations of procedural law. The Division Principle of 2. Administrative Litigation Jurisdiction (I) facilitate litigation. The jurisdiction of administrative litigation should be determined to facilitate the plaintiff, the defendant and other parties to carry out litigation, to facilitate their participation in litigation activities. (II) facilitate the correct, fair and effective exercise of judicial power by the people's courts. Facilitating the correct exercise of judicial power by the court includes the correct verification, determination of the facts of the case, and the correct application of legal norms. According to the provisions of the Administrative Procedure Law, the basic people's courts have jurisdiction over administrative cases of first instance. This provision includes factors that are local and nearby and facilitate the verification of facts. However, special customs administrative cases are highly professional and technical, and the jurisdiction of intermediate courts with better overall quality, level and conditions is conducive to the correct exercise of judicial power. (III) people's courts have an appropriate division of labor. When determining the jurisdiction of administrative litigation, we should consider the reasonable division of labor between the people's courts at all levels, so that the burden of a certain level of court should not be too heavy. The trial workload between the courts at the same level should be reasonably divided, and the trial power and trial workload between the upper and lower courts should also be reasonably distributed. The Level Jurisdiction of 3. Administrative Litigation (I) the jurisdiction of the four courts According to Chapter III of the Administrative procedure Law, the jurisdiction of the four-level courts is: the basic people's court has jurisdiction over administrative cases of first instance. The Intermediate People's Courts shall have jurisdiction as courts of first instance over the following administrative cases: cases involving lawsuits against administrative acts undertaken by departments under the State Council or local people's governments at or above the county level; cases handled by the Customs; major and complex cases within their respective jurisdictions; and other cases under the jurisdiction of the Intermediate People's Courts as prescribed by law. The Higher People's Courts shall have jurisdiction over major and complicated administrative cases of first instance within their respective jurisdictions. The Supreme People's Court has jurisdiction over major and complicated administrative cases of first instance throughout the country. According to the interpretation of the Supreme People's Court on the application of the Administrative Procedure Law (hereinafter referred to as the Judicial Interpretation of the Administrative Procedure Law), major and complex cases within the jurisdiction include joint litigation cases with significant social impact, foreign-related or involving Hong Kong Special Administrative Region, Macao Special Administrative Region, Taiwan Region, and other major and complex cases. The Implementation Measures of the Supreme People's Court on Improving the Pilot Reform of the Positioning of the Trial-level Functions of the Four-level Courts (Law [2021] No. 242, hereinafter referred to as Notice No. 242) supplements the jurisdiction of the four-level courts. Article 2 stipulates that the following administrative cases of first instance in which the people's government at the county or prefecture level is the defendant shall be under the jurisdiction of the grass-roots people's court: cases of disclosure of government information; cases of failure to perform legal duties; cases in which the administrative reconsideration organ does not accept or procedure rejects the application for reconsideration; and cases of administrative adjudication of disputes over the ownership of natural resources such as land and forests. The people's courts at all levels perform their respective duties, and the basic people's courts focus on accurately ascertaining the facts and resolving disputes in substance; the intermediate people's courts focus on the effective and final adjudication of the second instance and the precise determination of disputes; the higher people's courts focus on retrial to correct errors in accordance with the law and unify judgment standards; the Supreme People's Court supervises and guides the trial work throughout the country to ensure the correct and unified application of the law. (II) upgrading jurisdiction To raise the level of jurisdiction is to raise the level of jurisdiction over a case. Article 24 of the Administrative Litigation Law stipulates that people's courts at higher levels have the power to hear administrative cases of first instance under the jurisdiction of people's courts at lower levels. If a people's court at a lower level deems it necessary for a people's court at a higher level to try or designate jurisdiction over an administrative case under its jurisdiction as first instance, it may report to the people's court at a higher level for a decision. Article 4 of Circular No. 242 stipulates that if the basic people's court considers that the first instance civil, criminal and administrative cases under its jurisdiction belong to one of the following circumstances and need to be tried by the intermediate people's court, it may report to the people's court at the next higher level for trial: those involving major national interests and social public interests and should not be tried by the basic people's court; It belongs to a new type within its jurisdiction and the case is difficult and complicated; it has guiding significance for the application of universal law; there are major differences in the application of law in similar cases in which the judgment of the people's court at the next higher level or the basic people's courts within its jurisdiction has taken effect in the past three years, which have not been resolved as of the time of the trial; the first instance of the intermediate people's court is more conducive to a fair trial. If the intermediate people's court considers that the civil, criminal, or administrative cases of first instance that have been accepted by the basic people's court under its jurisdiction belong to one of the above-mentioned circumstances and it is necessary to be tried by this court, it shall decide to upgrade its jurisdiction. Article 5 stipulates that if an intermediate people's court considers that a civil, criminal, or administrative case of first instance under its jurisdiction falls under one of the following circumstances and needs to be tried by a higher people's court, it may report to the people's court at the next higher level for trial: it is of guiding significance for the application of universal law; there are major differences in the application of law in similar cases in which the judgment has taken effect in the past three years between the people's courts at the people's courts at the next higher level or the intermediate people's courts within their jurisdiction, the case has not been resolved by the time of trial; the first instance by a higher people's court is more conducive to a fair trial. If the higher people's court considers that a civil, criminal or administrative case of first instance that has been accepted by the intermediate people's court under its jurisdiction falls under one of the above-mentioned circumstances and it is necessary to be tried by this court, it shall decide to upgrade its jurisdiction. The above rule that "the higher court can only raise the jurisdiction level of administrative cases but not lower the jurisdiction level" is conducive to avoiding the phenomenon of controlling the final outcome by demoting administrative cases first and then second instance. The Level Jurisdiction of (III) Reconsideration Cases With regard to the level jurisdiction of reconsideration cases, Article 134 of the Administrative procedure Law stipulates that in cases where the reconsideration organ is a co-defendant, the administrative organ that made the original administrative act shall determine the level jurisdiction of the case. Administrative reconsideration cases are different from the principle of "high not low" in determining the level of jurisdiction by the co-defendants, that is, the higher court corresponding to the two defendants is selected as the jurisdiction court, but the administrative organ that made the original administrative act clearly determines the level court. (IV) the level of jurisdiction of co-defendants In general, administrative litigation is under the jurisdiction of the basic court where the defendant is located, but when there are multiple defendants and the level of the defendant is different, there is a competition of jurisdiction. In this case, the principle of "higher than lower" is adopted to determine the level of jurisdiction by the highest-ranking administrative organ among the co-defendants. However, when the "department of the State Council or the local people's government at or above the county level" with a higher level of the co-defendant is considered to be not a qualified defendant after examination after filing the case, the administrative organ with a lower level in the same case is no longer under the jurisdiction of the high-level people's court. However, after the case has been heard in court and a certain review of the administrative actions made by the lower-level administrative organs, it is found that the higher-level administrative organs are not qualified defendants. In order to save judicial resources, the people's court can follow the Administrative Procedure Law. Article 24 stipulates that "the people's court at a higher level has the right to hear administrative cases of first instance under the jurisdiction of the people's court at a lower level". Continue to hear the case. If the court in charge of the case considers that there is a suspicion of taking the opportunity to raise the level of jurisdiction or has justifiable reasons to believe that it is not appropriate to continue the trial of the case, it may not help itself to try the case, and after ruling to reject the prosecution against a higher-level administrative organ, transfer the case to the people's court at a lower level with jurisdiction. The Geographical Jurisdiction of 4. Administrative Litigation The geographical jurisdiction of administrative litigation refers to the division of labor between the people's courts at the same level and in accordance with their respective jurisdictions for the trial of administrative cases of first instance. Geographical jurisdiction is based on the determination of the level of jurisdiction, from the horizontal to determine which court to accept administrative cases. (I) general territorial jurisdiction The basic principle of general territorial jurisdiction is that the plaintiff is the defendant, that is, the administrative case is under the jurisdiction of the people's court where the administrative organ that originally made the administrative act is located. General territorial jurisdiction is the basic method to determine the territorial jurisdiction of administrative litigation, and if there is no special provision, the court where the defendant is located is the competent court. (II) special territorial jurisdiction General territorial jurisdiction is the basic principle for determining the jurisdiction of the court, but special territorial jurisdiction takes precedence over general territory. If the law expressly provides that administrative cases are subject to the jurisdiction of a particular court, the principle that the plaintiff is the defendant cannot be applied. Unlike civil litigation cases, special people's courts do not hear administrative cases unless approved by the Supreme Court. Therefore, the exclusive jurisdiction of specialized courts cannot be applied to administrative litigation cases. The special territorial jurisdiction of administrative cases is mainly real estate cases. Article 20 of the "Administrative Litigation Law" stipulates that administrative litigation initiated by real estate shall be under the jurisdiction of the people's court where the real estate is located. Article 9 of the judicial interpretation of the administrative procedure law makes it clear that "administrative litigation due to real estate" refers to the litigation brought by the change of real property rights caused by administrative acts. If the real estate has been registered, the location recorded in the real estate register shall be the location of the real estate; if the real estate has not been registered, the actual location of the real estate shall be the location of the real estate. Therefore, not all cases related to real estate are under the jurisdiction of the court where the real estate is located. Only cases where the real estate right is established, changed, transferred, and eliminated directly due to the change of the real estate right, that is, the administrative action directly leads to the establishment, change, transfer, and elimination of the real estate right. (For reference cases, see (2017) Supreme Law Application No. 8347) (III) joint jurisdiction Joint jurisdiction means that two or more courts have jurisdiction over the same administrative case. In this case, the plaintiff has a certain choice of competent court. With regard to administrative cases under joint jurisdiction, the Administrative Procedure Law and its judicial interpretations mainly provide for two situations of joint jurisdiction. The first is a lawsuit filed against administrative coercive measures that restrict personal freedom. Both the defendant's location and the plaintiff's location have jurisdiction (Article 19 of the Administrative Procedure Law). And as long as the administrative organ has taken administrative compulsory measures to restrict personal freedom and is based on the same fact, even if other administrative compulsory measures or administrative penalties are taken, the principle of joint jurisdiction of the place where the defendant is located plus the place where the plaintiff is located still applies (Article 8, paragraph 2, of the Judicial Interpretation of the Administrative Procedure Law). Second, in cases after reconsideration, the courts of the place where the administrative organ that initially made the administrative act and the place where the reconsideration organ is located have jurisdiction (Article 18, paragraph 1, of the Administrative procedure Law). For cases under joint jurisdiction, the plaintiff may choose any court with jurisdiction to file a lawsuit. If the plaintiff files a lawsuit in each court with jurisdiction, the court that first filed the case shall have jurisdiction (Article 21 of the Administrative Procedure Law). (IV) cross-administrative jurisdiction Cross-administrative jurisdiction is a breakthrough and innovation in the general territorial jurisdiction of the plaintiff on the defendant. In cross-administrative jurisdiction, the court where the defendant is located is not the only court with jurisdiction, and the plaintiff may choose any other court that meets the requirements across regions as the jurisdiction court. The determination of cross-regional jurisdiction of administrative cases requires the approval of the Supreme People's Court, and the Higher People's Court determines the court's cross-regional jurisdiction over administrative cases based on the actual situation of the trial work (Article 18, paragraph 2, of the Administrative Procedure Law). Cross-administrative jurisdiction is conducive to reducing the local government's interference in the independent judicial power of the judiciary, and is conducive to maintaining the independence and impartiality of the judiciary. Taking the cross-administrative jurisdiction of Jinan City as an example, after the approval of the Supreme People's Court, the Higher People's Court of Shandong Province issued Lu Gao Fa Ming Chuan [2019] No. 290 "On Forwarding<最高人民法院关于同意山东省高级人民法院开展行政案件集中管辖改革的批复>的通知》，确定济南两级人民法院自2019年10月1日起开展跨行政区域管辖行政案件改革试点工作。将基层人民法院管辖区域划分为东、中、西三个管辖片区，将各个区（市/县）划分至三个管辖片区中。对属于基层人民法院管辖的一审行政诉讼案件，原告既可以向最初作出行政行为的行政机关所在地基层人民法院提起诉讼，也可以向同一片区内其他基层人民法院提起诉讼。   （五）行政协议约定管辖   与民事争议中的合同或者其他财产权益纠纷相同，有关行政协议的行政纠纷，当事人也可以书面协议约定选择被告所在地、原告所在地、协议履行地、协议订立地、标的物所在地等与争议有实际联系地点的人民法院管辖，但违反级别管辖和专属管辖的除外（《最高人民法院关于审理行政协议案件若干问题的规定》第七条）。   五、移送管辖和指定管辖   （一）移送管辖   移送管辖是对管辖错误所采取的一种纠正措施，是指人民法院将不属于自己管辖的案件移送到有管辖权的人民法院。移送管辖主要包括</最高人民法院关于同意山东省高级人民法院开展行政案件集中管辖改革的批复>

2021-12-27

Viewpoint... Try to analyze the common mistakes of trademark rights protection -- take the "Pipiru" trademark rights protection as an example.

"The King of Fairy Tales" is a classic monthly fairy tale that I have read since I was a child. Cpaing and Rusisi are also "good friends" who accompanied me to grow up. Even now, when I see "Shuke Shuke, Shuke, who flies a plane; Beta Beta, Beta, who drives a tank," I can't help but sing. However, I was still surprised when I saw that Mr. Zheng Yuanjie was forced to suspend publication of "Fairy Tale King" in January 2022 because he devoted himself to trademark counterfeiting and rights protection. This also fully shows that "art comes from life and is higher than life", "accident and tomorrow do not know which will come first". In writing, I admire Teacher Zheng Yuanjie very much. Your work has influenced children for decades. This achievement is indeed enough to be proud. However, the author confirms that he is more professional than Mr. Zheng in trademark rights protection. After searching and analyzing many news reports and available public judgments and administrative ruling documents, the author has to say, Mr. Zheng, you are wrong. you really have to memorize this pot yourself! In many news articles, the author saw that Mr. Zheng mainly inquired about the files and review processes of the three trademarks, which are mainly aimed at "cpaing trademark No. 7197328, trademark No. 8229932, trademark No. 5423972, trademark struggle and rights protection", as follows: No. 7197328 Cpaing trademark No. 8229932 "Fairy Tale King" Trademark No. 5423972 "Shuke" trademark Judging from the above trademark files and the time of applying for invalidation, Mr. Zheng Yuanjie was indeed a little negligent. Take the trademark "cpaing" No. 7197328, which you spent the most energy on, as an example, and briefly analyze your mistakes. 1. Objection procedure error Judging from the process files, when the trademark entered the three-month preliminary examination announcement (June 27, 2010-September 27, 2010), you had already discovered the trademark and filed an application for trademark objection, but you filed an application for objection on the first day after the expiration (September 28, 2010), so it was bound to be rejected, thus missing the best time to protect rights. 2. Errors in the invalidation procedure According to the provisions of Articles 44 and 45 of the Trademark Law, applications for trademark invalidation may be filed at different times according to different legal bases. According to the news report and the author's analysis of the rights possessed by Mr. Zheng Yuanjie, Mr. Zheng believes that "Pipiru" is the name of the main character in the fairy tale "Pipiru and Lu Xixi" written by you, so it should not be registered as a trademark by others. There is no doubt that Mr. Zheng wrote the story of "Pipiru and Lu Xixi", and Mr. Zheng has the copyright of the story. It's just that copyright protects the expression of the work, not the author's thoughts, nor the name of the work, let alone the name of the story character. According to the principle of statutory rights, rights that are not expressly stipulated in the law do not constitute a right, that is to say, the names of characters in the story do not enjoy copyright. However, the law does not allow others to use the name of the role created by the author to seek illegitimate interests. After the continuous development of the law, the international community generally began to use a new name "commercialization right" to protect such interests, and in the application of trademark law, it is given the same status as other prior rights. Article 22 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation (No. 19 [2020] of the current law) issued on January 10, 2017, implemented on March 1, 2017 and revised on December 23, 2020 clearly stipulates that "for works within the copyright protection period, if the name of the work and the name of the role in the work have a high reputation, the use of it as a trademark on the relevant goods can easily lead the relevant public to mistakenly believe that it has been approved by the right holder or has a specific connection with the right holder, and if the parties claim that it constitutes a prior interest, the people's court will support it." It can be seen that Mr. Zheng wanted to claim the prior right to the "Pipiru" trademark. The disputed trademark violated the provisions of Article 32 of the Trademark Law and applied for the invalidation of the trademark. However, it should be pointed out that if the claim of invalidity through this reason must be "within five years from the date of trademark registration" and "for malicious registration, the owner of a well-known trademark is not subject to the five-year time limit." Through the trademark process, it can be seen that Mr. Zheng applied for invalidation on May 25, 2018, which far exceeded the legal time limit of five years (September 28, 2015) from the date of trademark registration. Mr. Zheng did not make the request within five years. No matter intentionally or unintentionally, or just because he did not understand the law, he gave up this right. Therefore, when applying for invalidation, Mr. Zheng can only try to use "those who violate the provisions of Article 4, Article 10, Article 11, Article 12 and Article 19, paragraph 4 of this Law, or obtain registration by deception or other improper means" to circumvent the limit of more than five years. However, at present, teacher Zheng has not received support for this reason. Therefore, the trademark "Pipiru" No. 7197328 was maintained and registered after court hearing. In this invalidation case, the Beijing Higher People's Court has issued (2019) Jingxing Final Administrative Judgment No. 10150, and the State Intellectual Property Office has also implemented the judgment and maintained the registration of the trademark. The reasoning part of the judgment clearly pointed out that the three characters "Pipiru" have neither adverse effects, nor will they bring about misidentification of characteristics such as quality, and there is no case of registration by improper means, and registration should be maintained in accordance with the law. In order to balance the interests and stabilize the trademark status, China's Trademark Law gives the prior right holder five years to claim the right, and if he does not claim it for five years, it will be regarded as a waiver. There is always a time limit for the protection of rights. Therefore, the trademark "Pipiru" No. 7197328 is indeed legally registered, which has nothing to do with morality. Through the above analysis, it can be seen that Mr. Zheng Yuanjie has made many mistakes in the process of safeguarding his rights for 10 years, which has caused this embarrassing situation. As a professional intellectual and a reader of Mr. Zheng for many years, I really admire Mr. Zheng for devoting all his energy to trademark rights protection by stopping the publication of "The King of Fairy Tales". We really need this kind of "true" spirit of rights protection at present, but we should also remind you-copyright owners, name owners, name owners, design patent owners and other prior rights holders, we should pay attention to the situation of other people's registered trademarks in time. If we encounter the trademark being registered maliciously by others, we must timely submit a request for invalidation. We must not delay the five-year legal period after the trademark is approved and registered. Otherwise, after five years, it will really increase the difficulty of safeguarding their rights for no reason, and even cause irreparable consequences. Naturally, the best way is not to be invalidated after being registered, a better corporate trademark strategy, and look at the next decomposition.

2021-12-27

If the third party constitutes an apparent agent in the handling of insurance business, the insured shall notify the third party of the validity of the termination of the insurance contract and the insurer.

[brief case]] On August 22, 2016, Wang mou signed an insurance contract with an insurance company to insure employer's liability insurance. the insurance period is from August 23, 2016 to August 22, 2017. the insured amount of each employee is casualty 800000 yuan, the insured amount of medical expenses is 80000 yuan, and the total insurance premium is 161280 yuan. the second paragraph of article 24 of the employer's insurance clause states that "if the applicant requests to terminate the insurance contract after the insurance liability starts, the insurance contract, the insurance contract shall be terminated, the insurer shall charge the premium for the period from the date of commencement of the insurance liability to the date of termination of the contract at the short-term rate specified in the table below, and refund the remaining portion of the premium. The part of the insured period of less than one month is charged on a monthly basis"; in addition, the two parties also signed a "payment agreement", which stipulates that the insurance premium shall be paid in installments. The agreement states: "The insurer and the insured have agreed to reach a cost payment agreement. This agreement is an integral part of the insurance contract. The insurance premium under this insurance contract will be paid by the applicant in the following way: the insurance premium will be paid in installments 1. the premium amount will be 48384 yuan, and the delivery date will be 2016.8.22;2. The premium amount will be 112896 yuan, and the delivery date will be 2016.12.31. If the policyholder fails to pay the premium as agreed, the insurer will bear the corresponding insurance liability in proportion to the actual premium paid to the total premium after the insurance accident". The payment agreement is stamped with a special seal for the appellee's underwriting business, and the operator has the signature of "Sun. After the contract was signed, Wang paid the first premium of 48384 yuan, but the final premium was not paid. In mid-December 2016, Sun called Wang to pay the premium. Wang said that he would no longer pay the premium and asked to terminate the insurance contract. Later, Sun informed the person in charge of an insurance company of Wang's intention to terminate the insurance contract. Due to a dispute over the delivery of the final premium, an insurance company sued Wang to the court. After hearing, the court ruled that the 1. Wang should pay an insurance company's premium of 112896 yuan within 10 days after the judgment came into effect. 2. dismiss other claims of an insurance company. After Wang filed an appeal, the court of second instance made a judgment on August 29, 2018, and ordered the cancellation of the first-instance judgment. The appellant Wang paid the appellee an insurance company insurance premium of 32256 yuan within 10 days from the effective date of the judgment. Other claims of an insurance company of the appellee. Because of not accepting the final judgment, an insurance company applied to the Shandong Higher People's Court for a retrial, and the court ruled that an insurance company's retrial application was rejected after review. focus of controversy] The focus of the dispute in this case is mainly whether the policyholder notifies the third party involved in the case whether the termination of the insurance contract will have the effect of the termination of the contract. The court of first instance held that] Wang signed an insurance contract with an insurance company, the two sides agreed on the insurance period and liability, an insurance company in accordance with the contract has settled Wang's insurance accident, the insurance contract signed by both parties has taken effect and has been performed, Wang should pay all the premiums in accordance with the contract. An insurance company demanded Wang's 112896 yuan premium in arrears, which did not violate relevant laws and regulations and supported it. Wang's claim on the termination of the performance of the contract is not supported by evidence and is not supported. The court of second instance held that] In the opinion of the Court, Article 35 of the Insurance Law stipulates: "The policyholder may pay the full premium or the premium in instalments to the insurer in accordance with the contract." During the second instance, the appellant approved the authenticity of the copy of the payment agreement submitted by the appellant, and the payment agreement stipulated that the insurance premium involved was paid in installments. The appellant paid the initial premium as agreed and the final premium was not paid. However, the appellant claimed that he had notified Sun Mou, the manager of the insurance involved, before the expiration of the final premium, to request the termination of the insurance contract, to stop paying the premium, and to apply for Sun Mou to testify in court. The Court believes that the payment agreement involved in the case is stamped with a special seal for the appellee's underwriting business, and the handler has Sun's signature. The appellee also recognizes the authenticity of the payment agreement submitted by the appellee. Therefore, Sun's identity as the insurance handler involved in the case is confirmed by the Court. Sun testified in court that in mid-December 2016, he called the appellant for the premium, and the appellant had made it clear that he would no longer pay the premium and would terminate the insurance contract. Sun informed the person in charge of the appellee of the appellee's intention to terminate the insurance contract. Sun has no legal interest with the appellant, and the witness testimony issued by him as the insurance agent involved in the case is objective, and the court accepts the witness testimony. According to Article 24 of the employer's liability insurance clause involved in the case, the insurance contract shall be terminated from the date of notification to the appellee, and the appellee shall actually insure for five months, with an annual rate of 50%, so the total premium payable by the appellant shall be 80640. The appellant has already paid the insurance premium of 48384 yuan and must pay another insurance premium of 32256 yuan. To sum up, the original court found that the facts were wrong and should be corrected. The retrial court held that] In this case, an insurance company recognized the authenticity of the payment agreement submitted by Wang, because the person in charge of the payment agreement had Sun's signature and stamped with a special seal for the business of an insurance company, Wang had reason to believe that Sun had the right to handle the insurance business involved on behalf of an insurance company. In the original trial, Sun appeared in court to confirm that he had informed the person in charge of an insurance company of Wang's intention to terminate the insurance contract. Sun and Wang have no legal interest, and the witness testimony issued by him as the insurance agent involved in the case is objective. According to Article 24 of the employer's liability insurance clause involved in the case, the original judgment determined that since Wang notified an insurance company From the date, the insurance contract involved in the case was terminated, and it was not improper to determine the facts and apply the law. To sum up, the retrial application of an insurance company does not conform to the provisions of items 2 and 6 of Article 200 of the the People's Republic of China Civil Procedure Law. In accordance with the first paragraph of Article 204 of the the People's Republic of China Civil Procedure Law and the second paragraph of Article 395 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law, the ruling is as follows: Reject an insurance company's retrial application. Lawyer comment] Appreciative agency refers to a system that belongs to the unauthorized agency, but because of the cause attributable to the agent, causes the appearance or appearance of the authorized act, causes the good faith and no fault of the relative person to believe that the unauthorized agent has the power of agency and carries out legal acts with it, and the law provides for the same effect as the right to act. The constituent elements of apparent agency include:(1) the agent does not actually have the power of agency;(2) the actor has the appearance of being granted the power of agency;(3) the relative believes that the actor has the power of agency and is in good faith and without fault;(4) the relative performs legal acts with the actor based on the trust of the power of agency;(5) The appearance or appearance of the actor who is granted the power of agency can be attributed to the agent. In this case, the payment agreement involved in the case is stamped with a special seal for the underwriting business of the insurance company, and the handling person has the signature of a third person, Sun. Based on reasonable trust and the appearance of the agency, the insured Wang will no longer pay insurance premiums and terminate the insurance contract. The intention is to inform Sun that the insurance company has no evidence to prove that the appearance of the agency cannot be attributed to itself, and there is no evidence to prove that the policyholders are malicious, therefore, it should be regarded as an apparent agent, the policyholder Wang to the third person Sun a notice of the validity of the termination of the contract and the insurance company, at this time, the agent, that is, the insurance company may not claim no right to act against the agent.

2021-12-27

Viewpoint... A review of mortgage issues in land expropriation.

Brief of the case In September 2010, a bank and a company signed a maximum mortgage contract, a company to land and real estate for the loan to provide mortgage guarantee, for mortgage registration. In 2014, the land and real estate used for mortgage were demolished by the government because of municipal projects, and the mortgage was lost. A bank sued the court to confirm that the compensation for the demolition of the mortgaged property has the right of priority within the scope of the principal and interest. The court held that there was insufficient evidence in the claim of a certain bank, so it rejected the claim of a certain bank. case assessment The reason why the court in this case did not support a bank to receive priority compensation for demolition and relocation is: The land and real estate mortgaged in this case were demolished by the government due to municipal projects, and the collateral was lost. According to Article 80, paragraph 1, of the Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the the People's Republic of China Security Law, "in the event of loss, damage or expropriation of the mortgage, the mortgagee may give priority to the payment of insurance money, compensation or compensation for the mortgage". And Article 174 of the the People's Republic of China Property Law stipulates that "during the period of security, if the secured property is damaged, lost or expropriated, the security interest holder may give priority to the insurance money, compensation or compensation obtained". Therefore, a bank has a priority right to be paid for the mortgage demolition paid by the government department. However, a bank should bear the burden of proof whether the government compensates and how much it should compensate. However, none of the banks provided evidence, so the court held that "the priority compensation for demolition and relocation claimed by a bank will not be dealt with temporarily, and another claim can be made after the bank has corresponding evidence". Summary of practical experience Don't forget the past, the teacher of the future. To avoid similar failures in the future, the following recommendations are made: Based on the basic principle of "who claims who gives evidence" in the Civil Procedure Law, after the mortgage is levied, the mortgagee shall list the relevant evidence to prove whether the mortgagee has received compensation and the specific amount of compensation when the mortgagee claims priority compensation for the mortgage. For example, the mortgagee may collect the collection announcement of the mortgage and find information about the collection compensation.

2021-12-26

Corporate Litigation Study... Corporate litigation rules of the company promoter liability dispute.

Foreword The company law person is the main subject engaged in commercial activities, when the company is still in the initiation stage, at this time the company is not established, does not have the ability to independently assume civil liability. The promoter is the representative organ and executive organ of the established company, and conducts civil activities on behalf of the established company. Through the relevant legal provisions and supplemented by cases, this paper briefly combs the judicial practice of the liability disputes of the company's sponsors. 1. related regulations 1. Company Law of the People's Republic of China Article 94 the promoters of a joint stock limited company shall bear the following responsibilities: (1) when the company cannot be established, they shall be jointly and severally liable for the debts and expenses arising from the establishment; when the (II) company cannot be established, they shall be jointly and severally liable for the return of the shares paid by the subscribers and the interest on the bank deposits for the same period; (III) in the process of the establishment of the company, the interests of the company are damaged due to the fault of the promoters, the company shall be liable for compensation. 2. (II) of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the the People's Republic of China Company Law Article 22 When a company is dissolved, any capital contribution that has not been paid by the shareholders shall be treated as liquidation property. The outstanding contributions of shareholders, including the outstanding contributions due and payable, as well as the contributions that have not yet expired in instalments in accordance with the provisions of Articles 26 and 80 of the Company Law. When the company's property is not sufficient to pay off the debts, the people's court shall support the creditor's claim that the shareholders who have not paid their capital contributions, as well as other shareholders or promoters at the time of the establishment of the company, shall bear joint and several liability for the debts of the company within the scope of the unpaid capital contributions. 3. (III) of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law Article 1 The persons who, for the purpose of establishing a company, sign the articles of association, subscribe for capital contributions or shares from the company and perform the duties of establishing the company shall be recognized as the promoters of the company, including the shareholders of the limited liability company at the time of its establishment. Article 2 If the promoter signs a contract in its own name for the establishment of the company, and the counterparty to the contract requests the promoter to bear the contract liability, the people's court shall support it; if the counterparty to the contract requests the company to bear the contract liability after the establishment of the company, the people's court shall support it. Article 3 If the promoter signs a contract in the name of the established company, and the contract counterpart requests the company to bear the contract liability after the establishment of the company, the people's court shall support it. After the establishment of the company, there is evidence to prove that the promoter used the name of the company in the establishment to sign a contract with the counterparty for its own benefit, and the company claims not to bear the contract liability on this ground, the people's court shall support it, except for the relative person's good faith. Article 4 If a company is not established for some reason, the people's court shall support the creditor's request that all or part of the promoters bear joint and several liability for the expenses and debts arising from the establishment of the company. If some of the promoters, after assuming the responsibility in accordance with the provisions of the preceding paragraph, request the other promoters to share the responsibility, the people's court shall order the other promoters to share the responsibility in proportion to the agreed responsibility; if there is no agreement on the proportion of responsibility, the responsibility shall be shared in accordance with the agreed proportion of capital contribution; if there is no agreement on the proportion of capital contribution, the responsibility shall be shared in accordance with equal shares. If the company is not established due to the fault of some of the promoters, and the other promoters claim that they bear the expenses and debts arising from the act of establishment, the people's court shall determine the scope of liability of the party at fault according to the circumstances of the fault. Article 5 If the promoter causes damage to others due to the performance of the company's establishment duties, and the victim requests the company to bear the liability for tort compensation after the company is established, the people's court shall support it; if the company is not established and the victim requests all the promoters to bear joint and several liability, the people The court shall support it. After the company or the promoter without fault has assumed the liability for compensation, it may recover the compensation from the promoter at fault. Article 13 If a shareholder fails to perform or fails to fully perform its capital contribution obligations, and the company or other shareholders request it to fully perform its capital contribution obligations to the company in accordance with the law, the people's court shall support it. If the creditors of the company request that the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations shall bear supplementary compensation liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the unfunded capital contribution, the people's court shall support it; the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already undertaken the above-mentioned responsibilities, and other creditors make the same request, the people's court shall not support it. If a shareholder fails to perform or fails to fully perform the obligation of capital contribution at the time of the establishment of the company, and the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests the promoter of the company and the defendant shareholder to bear joint and several liability, the people's court shall support it; after the promoter of the company assumes responsibility, it may recover compensation from the defendant shareholder. If a shareholder fails to perform or fully perform the obligation of capital contribution when the company increases its capital, the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests that the directors and senior managers who have not paid their capital contribution bear the corresponding responsibilities for failing to fulfill the obligations stipulated in the first paragraph of Article 147 of the company law, The people's court shall support it; after the directors and senior managers bear the responsibility, they may recover compensation from the defendant shareholders. Four situations in which the 2. promoter is liable 1. Sponsor liability in the event of failure to establish a company Since the established company does not yet have an independent legal personality, it is legally considered a partnership between the promoters. If the company is successfully established, the creditor's rights and debts arising in the process of establishment shall be inherited by the company after the establishment; however, in the event of the failure of the establishment of the company, the relevant legal liabilities shall be jointly and severally borne by all promoters. In this regard, Article 4 of the "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law" clearly stipulates. 2. The liability of the promoter in the case of the establishment of infringement. The promoter is the legal authority of the established company, and the company shall generally be liable for the infringement caused by the performance of the establishment duties. Since the establishment of the company in the legal evaluation as a partnership between the promoters, if the company is not ultimately formed, the promoters should be jointly and severally liable for the tort. In this regard, Article 5 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law clearly stipulates. 3. Legal liability of the promoter in the event of a contract signed in its own name for the establishment of the company. According to the provisions of Article 23 of the the People's Republic of China Company Law, the establishment of a company must have a company domicile. Since the company has an independent legal personality only from the date of the issuance of the business license, the company is still in the establishment stage at the time of leasing the office space. At this time, it is common for the promoters to sign relevant lease agreements and decoration design contracts in their own name, especially when the company is in operational difficulties after its establishment, disputes will arise over how to perform the relevant contracts and how the promoters assume responsibility. In this regard, Article 2 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law gives the counterparty the right to choose, which stipulates that "if the promoter signs a contract in his own name for the establishment of a company, the people's court shall support the request of the counterparty to the promoter to bear the contractual liability. If the company confirms the contract stipulated in the preceding paragraph after its establishment, or has actually enjoyed the contractual rights or performed the contractual obligations, and the contract counterpart requests the company to assume the contractual liability, the people's court shall support it." From the perspective of judicial practice, the number of cases caused by the responsibility of the promoter in this case is relatively large, and the responsibility of the promoter is also more typical. 4. Liability for defects in capital contributions and joint and several liability for capital contributions According to the provisions of Articles 30 and 93 of the the People's Republic of China Company Law, after the establishment of the company, if the actual price of the non-monetary property contributed by the promoters as the establishment of the company is significantly lower than the price set in the articles of association, the difference shall be made up by the shareholder (promoter) who delivered the capital contribution; other shareholders (promoters) at the time of the establishment of the company shall bear joint and several liability. The third paragraph of Article 13 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates that "shareholders who fail to perform or fail to fully perform their capital contribution obligations when the company is established, in accordance with paragraph 1 or paragraph 2 of this article If the plaintiff in a lawsuit requests the company's promoter and the defendant shareholder to bear joint and several liability, the people's court shall support it; after the company's promoter assumes responsibility, it may recover compensation from the defendant shareholder." This provision extends the provision of joint and several liability between promoters in a joint stock company under article 93 of the the People's Republic of China Companies Act to a limited liability company for their respective capital contributions to the company. In addition, in accordance with the provisions of Article 13, paragraph 2 and Article 19 of the (III) of the Supreme people's Court on several issues concerning the Application of the the People's Republic of China Company Law, the creditors of the company may request shareholders who have not fulfilled their capital contribution obligations or have not fully fulfilled their capital contribution obligations to bear supplementary liability for the unpayable part of the company's debts within the scope of the principal and interest of the uncontributed capital, and such liability for repayment is not subject to the limitation of action. In the case of a limited liability company, the promoter's liability for false capital contributions in the process of establishing the company is transformed into the liability of the company's shareholders for false capital contributions after the company is established. Judicial Practice of 3. Sponsor Liability Dispute Internal legal liability of (I) promoters-company establishment disputes Case 1: Chen Yanping v. Han Kemin and the third party Liu Xiangquan and Liu Songyu Company Establishment Dispute [Henan Dengfeng Municipal People's Court (2007) Dengmin Yichu Zi No. 1437-2 Civil Judgment]] In this case, the company jointly funded by the four shareholders was not actually established. The court determines the proportion of each promoter's liability, taking into account the amount of funds that each promoter has not actually contributed and taking into account the conduct of each promoter in the course of the establishment of the company. Case 2: Li Haige v. Dong Daoming Sponsor Liability Dispute [Beijing Fangshan District People's Court (2014) Fang Min Chu Zi No. 02587 Civil Judgment (First Instance), Beijing Second Intermediate People's Court (2014) Er Zhong Min Zhong Zi No. 06590 Civil Judgment (Second Instance)]] Li Haige, Dong Daoming and other four people plan to jointly establish a limited company operating cosmetics, and signed a "cooperation agreement" for this purpose. After paying the capital contribution by Li Haige and others, Dong Daoming registered a shareholder as his own one-person limited company, Beijing Tianzi Weiye Cosmetics Co., Ltd. After the trial, the court held that Dong Daoming registered the target company as a one-person limited liability company, and its behavior violated the agreement of the cooperation agreement, resulting in Li Haige unable to achieve the purpose of the contract, and ordered the termination of the cooperation agreement and the return of Li Haige's investment principal and interest by Dong Daoming. External legal liability of (II) promoters-signing contracts in their own name for the establishment of companies Case 1: Qingdao Haidu Group Co., Ltd. v. Qingdao Zhongshan Paris Spring Department Store Co., Ltd. and Qingdao Siji Spring Department Store Co., Ltd. [Qingdao Intermediate People's Court (2014) Qing Min Er Shang Zhong Zi No. 979 Civil Judgment (Second Instance)]] Four Seasons Department Store is a limited liability company jointly initiated by Paris Department Store, Four Seasons Commercial Company and Ji Qinghuan. In the process of establishing the Four Seasons Department Store, Paris Department Store and Four Seasons Commercial Company issued a "Letter of Commitment" to the lessor Haitong Group in order to decorate the mall, stating that it will be the sixth month and the twelfth month after the establishment of Four Seasons Department Store. The decoration payment will be paid twice in the month. After the establishment of Four Seasons Department Store, it did not manage well, but in order to deal with related claims and debts, it signed an agreement with Haitong Group, stating that Four Seasons Department Store will pay for the relevant decoration. Qingdao Intermediate People's Court held that the appellee (Haidu Group) confirmed the contents of the Letter of Commitment signed by the appellee (Haidu Group) and the appellant (Paris Department Store) before the establishment of the Four Seasons Department Store by signing an agreement with Four Seasons Department Store, and Four Seasons Department Store had fulfilled some obligations to the appellee (Haidu Group), that is, the appellee (Haidu Group) has chosen to claim rights to Four Seasons Department Store through its actions, and can no longer require the promoter to bear responsibility in accordance with Article 2, paragraph 1, of the (III) for Judicial Interpretation of the Company Law. Case 2: Dispute over Construction Contract between Guangdong Baosheng Air Conditioning Equipment Engineering Co., Ltd. and Xu Guicheng and Guangzhou Shangliyuan Restaurant Management Co., Ltd. [Guangdong Zengcheng City People's Court (2013) Sui Zengfa Min Er Chu Zi No. 701 Civil Judgment (First Instance), Guangzhou Intermediate People's Court (2015) Sui Fa Min Er Zhong Zi No. 593 Civil Judgment (Second Instance)]] The People's Court of Zengcheng City, Guangdong Province, held in the first instance that the behavior of the Appreciation Liyuan Hotel to pay the project cost of the contract involved in the case to Baosheng Air Conditioning Company and the behavior of Baosheng Air Conditioning Company to issue invoices to the Appreciation Liyuan Hotel, all showed that the Appreciation Liyuan Hotel confirmed the contract involved in the case, and it has actually enjoyed the contractual rights and fulfilled the contractual obligations ...... And Baosheng Air Conditioning Company also knew that the contract involved was signed for the establishment of the Appreciation Garden Hotel when the contract was signed, and now the Appreciation Garden Hotel has been established in accordance with the law, so the rights and obligations of the contract involved should be enjoyed and assumed by the Appreciation Garden Hotel in accordance with the law, and accordingly confirmed that the subject of the contractual obligations involved is the Appreciation Garden Hotel. The court of second instance changed the judgment that the promoter, not the company, should bear the responsibility on the grounds that the court of first instance "did not exercise the right of interpretation and Baosheng Company did not choose the subject of responsibility. It should be pointed out that the counterparty exercises the right of choice on the premise that the company has exercised the right of intervention after its establishment, and the counterparty may request the company to assume contractual liability only after the company has expressed or implied its willingness to inherit the contractual rights and obligations. The above-mentioned "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law" not only implements the principle of contract relativity, but also prevents the promoter and the promoter's creditors from abusing it by setting conditions for the relative to choose to request the company to assume responsibility Rights harm the company's interests in order to protect the company's legitimate property rights and interests from infringement. At the same time, it should also be noted that in the case of the promoter signing a contract in its own name for the establishment of the company, although the relative has the right to choose, but has no right to require the promoter and the company after the establishment of the contract. Case 3: Cai Boquan, Hubei Gedian Development Zone Chengxiang Clothing Co., Ltd. and Liu Hansen's Housing Lease Contract Dispute [Hubei Higher People's Court (2014) E Min Li Er Zaizong Zi No. 0008 Civil Ruling]] The Hubei Provincial higher people's Court held that Cai Boquan signed a house lease contract with Liu Hansen and, as a promoter, set up Yuchengxiang Company with the leased house as a factory building and registered it for industry and commerce. Chengxiang Company, as the actual lessee, uses the house and pays the rent. Cai Boquan and Liu Hansen signed a house lease contract behavior is the performance of duties, the actual subject of the contract is Yu Chengxiang Company, the contract rights and obligations should be borne by Yu Chengxiang Company. When the appellee Liu Hansen sued, he had clearly chosen Cai Boquan as the defendant in this case and asked him to bear contractual responsibility, which should be supported by the people's court. In the course of the lawsuit, Liu Hansen applied to pursue Yu Chengxiang Clothing Company as a co-defendant in the case to participate in the lawsuit, which is not in accordance with the law.

2021-12-26

Viewpoint | Three Private Lending Cases and Typical Significance

Case one: Li mou and sun mou are friends. On August 6, 2017, Li and Sun signed a loan contract. The two parties agreed that Sun requested a loan from Li for business activities. The amount of money Li lent to Sun was 240000 yuan, and the loan period was 12 months., From August 6, 2017 to August 5, 2018. The two sides agreed to an annual interest rate of 18%, that is, the annual interest of 43200 yuan. After the expiration of the term, Sun did not repay the principal and interest, and Li sued to the court, demanding Sun to repay the principal of the loan of 240000 yuan, the interest of 43200 yuan, and the overdue interest from August 6, 2018 to the date when the principal of the loan was actually paid. The court held that the interest of 43200 yuan during the loan period claimed by Li mou was in line with the contract and did not violate the legal provisions. the court supported it according to law. Overdue interest, based on the principal of 240000 yuan, is calculated at four times the one-year loan market quotation rate issued by the National Interbank Funding Center authorized by the People's Bank of China, and the excess is not supported. Typical meaning: According to the relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (amended on December 23, 2020), the people's court shall support the newly accepted first-instance private lending cases after August 20, 2020, the loan contract was established before August 20, 2020, and the parties request to apply the judicial interpretation at that time to calculate the interest part from the establishment of the contract to August 19, 2020; for the portion of interest from August 20, 2020 to the date of return of the loan, the standard of interest rate protection under this provision at the time of prosecution is applied. In other words, using August 20, 2020 as the dividing line, interest is calculated after that point at four times the LPR at the time the contract was established, and exceeding that interest rate cap is an illegal debt and is not protected. Case two: Wu Mou and Duan Mou are friends. On October 19, 2018, Duan wrote an IOU for Wu Mou, stating that "Duan borrowed 200000 yuan from Wu Mou today, with an annual interest rate of 24%.". On the same day, Wu Mou transferred money to Duan 200000 yuan. After a refusal to repay the loan and interest, Wu filed a lawsuit with the court, requesting an order to return the principal of Wu's loan of 200000 yuan. Pay the loan interest of 87978 yuan from October 20, 2018 to August 19, 2020 calculated according to the annual interest rate of 24%. Pay the loan interest from August 20, 2020 to the actual repayment date, calculated at four times the market quoted interest rate for one-year loans. After hearing, the court held that Wu Mou transferred 200000 yuan to Duan Mou, Duan Mou issued an IOU for Wu Mou, and a private lending relationship was formed between Wu Mou and Duan Mou. Wu has filed lawsuits in the city's courts many times within two years. Combined with the interest and other expenses he agreed or actually received, Wu should be determined to constitute a professional lender, and the loan relationship between Wu and Duan is invalid. In addition to repaying the principal, Duan should also pay Wu's interest loss, based on 200000 yuan, calculated according to the loan market quotation interest rate published by the National Interbank Lending Center, from October 20, 2018 to the actual payment date. Typical meaning: According to the relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, if a lender fails to obtain the qualification for lending in accordance with the law and repeatedly engages in paid private lending for many times within a certain period of time, it can generally be determined to constitute a professional lending act. Professional lending is business and for-profit. According to the law, combined with the trial practice, the same plaintiff or related plaintiff filed more than 5 private lending cases with the city's courts within two years, or the lender lends funds to the society for more than 3 times within two years, it can generally be determined that the lender's lending behavior is commercial. Private lending contracts formed as a result of professional lending practices are invalid. The borrower shall return the principal of the loan and the loss of interest during the period of occupation of the funds. Interest losses should generally be calculated in accordance with the loan market quotation rate published by the National Interbank Lending Center, and cannot be calculated in accordance with the high interest standard agreed in the private lending contract. Case three: Qi and Sun are friends. From February 21, 2019 to July 9, 2019, Qi transferred money to Sun's account four times, totaling 620000 yuan. Qi thought that Sun borrowed money from him on the grounds of business working capital, so Qi filed a lawsuit to order Sun to return the loan of 620000 yuan and pay the interest calculated according to the loan interest rate for the same period published by the National Interbank Lending Center, from March 26, 2021 to the date of actual payment. The defendant Sun a defense between the two sides is not a loan relationship but a partnership. The plaintiff Qi held an electronic transfer receipt, WeChat screenshots, short messages, telephone recordings, etc., claiming that there was a loan relationship between the two parties. The court held that the evidence of the partnership provided by the defendant Sun and the testimony of witnesses were not sufficient to prove that the two parties were in a partnership. Therefore, it is determined that there is a private lending relationship between the two parties, and the defendant Sun should repay the plaintiff Qi's principal of RMB 620000 yuan and interest. Typical meaning: Article 14 of the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of private lending cases stipulates that "the plaintiff shall file a private lending lawsuit on the basis of creditor's rights documents such as IOUs, receipts and IOUs, and the defendant shall file a defense or counterclaim on the basis of the basic legal relationship, And provide evidence to prove that the creditor's rights dispute is not caused by the private lending behavior, The people's court shall try in accordance with the basic legal relationship." Article 16 stipulates: "If the plaintiff files a private lending lawsuit only on the basis of the transfer voucher of the financial institution, and the defendant defends that the transfer is to repay the previous loan or other debts of both parties, the defendant shall provide evidence to prove its claim." Article 73 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates: "If both parties adduce opposite evidence to the same fact, but there is no sufficient basis to deny the evidence of the other party, the people's court shall, in light of the circumstances of the case, judge whether the probative force of the evidence provided by one party is obviously greater than that of the evidence provided by the other party, and confirm the evidence with greater probative force." In this case, the proof of the evidence provided by the defendant Sun for the partnership between the two parties is not significantly greater than the proof of the evidence provided by the plaintiff Qi. The defendant Sun's defense claims have many doubts and are not supported.

2021-12-25