Point of view... How to determine that the purpose of shareholders requesting access to the company's accounting books is improper.

According to Article 33 of the Company Law, if a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose that may harm the legitimate interests of the company, it may refuse to provide access. It can be seen that the legitimate purpose of the shareholders' access to the company's accounting books will be directly related to the realization of the right of access. Then, how to determine the legitimacy of the right of inspection in judicial practice? As a company, how to prove that the right of inspection claimed by the plaintiff shareholders has an improper purpose? According to the provisions of Article 8 of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law, the shareholders of the company have one of the following four situations: the people's court shall determine that they have an "improper purpose": (1) If a shareholder operates a business for himself or for another person that has a substantial competitive relationship with the company's main business, it shall be deemed to have an "improper purpose." The "self-employed" here refers to the business operated by the shareholders themselves; the "main business" here refers to the business of the main source of the company's profits; and the "substantial competitive relationship" here refers to the direct conflict of interest between the shareholders and the company. However, if there is such a relationship between the shareholders and the company, but the articles of association of the company provide otherwise or all shareholders agree otherwise, the treatment in accordance with the provisions or agreement may not be regarded as "improper purpose". (2) If a shareholder consults the company's accounting books in order to inform others of the relevant information, which may harm the legitimate interests of the company, it shall be deemed to have an "improper purpose." "Relevant information" here refers to the information contained in the company's accounting books. The purpose of a shareholder's access to the company's accounting books is not to exercise his or her rights as a shareholder, but to inform others of the information he or she has accessed, which should be deemed to have an "improper purpose" as long as it has the possibility of harming the legitimate rights and interests of the company ". (3) If a shareholder, within three years prior to the date of making a request for inspection to the company, has informed others of relevant information that harms the legitimate interests of the company by consulting the company's accounting books, it shall be deemed to have an "improper purpose". The term "within three years" here refers to the three years before the date of the shareholder's request for inspection to the company, not the three years before the date of the shareholder's lawsuit in the people's court. If a shareholder has "consulted the company's accounting books and informed others of relevant information that harms the legitimate interests of the company" within three years before the date of filing a request for inspection to the company, it shall be deemed to have an "improper purpose". (4) Other circumstances in which the shareholders have improper purposes. This is a bottom-up clause. Due to the complexity of the actual situation, legislation cannot exhaust all the circumstances of "improper purposes", so more facts are handed over to the people's court for truthful determination.

2021-12-23

A little discussion of the general consumer in the determination of design infringement.

1 Opinion of the Supreme Court One of the focus of the dispute summarized by the Supreme Court in Administrative Judgment No. 359 of the Supreme Court (2020) is whether the internal cavity structure of profile products is protected by the design patent right (should be protected). In this regard, the Supreme Court held that: Part IV, Chapter V, Section 4 of the "Patent Examination Guidelines" stipulates that general consumers of a certain type of design products should have the following characteristics:(1) The design of the same or similar type of products before the date of the patent application in question And its common design methods have a common sense understanding. Commonly used design techniques include the design of the transfer, splicing, replacement and other types. (2) the design of the product between the shape, pattern and color of the difference has a certain degree of resolution, but will not notice the product shape, pattern and color of small changes. It can be seen that the general consumer refers to a consumer group, and different consumer and user groups often have different understandings and visual impressions on the appearance design of products in different fields. "General consumer" is a person who can represent the general commonness of ordinary consumers, which is the same as the concept of "ordinary technical personnel in this field" introduced in the creative judgment of invention and utility model and the abstract concept of "ordinary person" of "general attention" commonly used in civil law. The court can neither regard a group of people as the general consumers of all products, nor can people who have nothing to do with a certain product be regarded as ordinary consumers of this product, otherwise, the conclusion drawn is likely to be unfair. The general consumer is not any citizen, but a purchaser or user of a particular class of goods. Because only consumers who buy goods or consumers who use goods need to compare and judge the similarity between the product and other products of the same kind, the evaluation of patented products should be restricted by the observation population. Profile products are an intermediate product. The end users of the products often do not buy the profiles themselves alone. What they consume is products assembled from profiles, and the sales mode of profile products also leads to the end users of the products. It is often obtained through distributors or operators, and rarely directly purchased through manufacturers. Based on this, the general consumers of profile products include not only the end users of the products, but also the relevant operators, salesmen and purchasers in all aspects of profile manufacturing, sales, installation and use. Compared with the end user, the main body in the purchase of patented products, will pay more attention to the various design features of the product, especially the internal cavity structure has a larger design space, in the profile section accounted for a relatively large, should be focused on the design features. The original judgment held that the determination that the internal cavity structure was completely invisible in the final use state ignored the condition that the internal structure in the legal sense should be restricted by the observation population, and the court corrected it. 2 Analysis of the Supreme Court Referee's Viewpoint The above evaluation of the Supreme Court in this case can be briefly described as follows: ordinary consumers are typed subjects with a common perspective, and different types of consumers have different perspectives for the same product, thus resulting in relatively more design elements for the same product, according to the perspective of one type of consumer, while according to the perspective of another type of consumer, the design elements are relatively less. In this case, the direct sales objects of profile products are related operators, salesmen and purchasers in various links such as profile manufacturing, sales, installation and use. Such subjects will pay more attention to the design details of the profile than the end users during purchase, thus paying more attention to various design features of the product, especially the internal cavity structure has a larger design space and accounts for a larger proportion in the profile interface, is a design feature that should be emphatically considered. Below we look at the characteristics of the profile itself, the first is the definition of its discipline, refers to the metal after plastic processing, with a certain cross-sectional shape and size of the solid straight bar. The profile is a product with a certain geometric shape made of materials such as iron and aluminum with a certain strength and toughness through rolling, extrusion, casting and other processes. It has predetermined mechanical properties by virtue of its appearance size and cross-sectional shape. The design of profile section mainly considers whether the corresponding section has good mechanical properties. In addition, considering the connection form of the final product, and adding auxiliary structures such as connecting ribs in the cross-sectional design, the direct consideration is still the function. For example, the relevant operators in the manufacturing process, the design and manufacture of the profile section, directly consider whether the section makes the profile more powerful (with features), rather than looking more handsome (decorative features). Forcing fiction to be aesthetic, or to define it as a decorative feature, is not too convincing, and will lead to the need to consider too many irrelevant factors in the determination of design infringement, which makes the determination of infringement more cumbersome and more prone to problems. Regarding the logical analysis of the above-mentioned referee's point of view, we first look at its logical characteristics. There is a logical fallacy called the affirmative latter. The normal logic is that the former is true-> the latter is true, and the affirmation of the latter is directly or indirectly through some form of description substantially affirms the latter, and the common form is to strengthen the opposite party's affirmation of the latter through multiple direct or indirect terms. However, the relevant description of the judgment in this case "when purchasing patented products, such subjects will pay more attention to various design features of the products, especially the internal cavity structure has a large design space, which accounts for a large proportion of the profile section and is the design feature that should be considered" includes two "design features" and one "design space", thus strengthening the true understanding that "the profile section shape is the design element. However, is the so-called "design feature to be considered" a design feature of a true industrial design? In fact, many guiding cases of the Supreme Court are trying to separate decorative features (design features) and used features (functional features). However, the first paragraph of Article 11 of the Supreme People's Court's (II) on Several Issues Concerning the Application of Laws in Hearing Patent Infringement Disputes stipulates that when the people's court determines whether the design is the same or similar, it shall be based on the design features of the authorized design and the accused infringement design, comprehensive judgment based on the overall visual effect of the design; design features mainly determined by technical functions and features such as materials and internal structure of the product that do not affect the overall visual effect shall not be considered. As a further example, the following situations usually have a greater impact on the overall visual effect of the design: (1) The parts of the product that are easily observed directly during normal use are relative to other parts. For the profile section, the design should first consider the mechanical properties of the profile, and then, for example, the process of extrusion, such as the transition design at the corner, these two considerations are determined by the technical function, rather than the decorative decision. As far as the characteristics of the profile are concerned, considering the appearance design characteristics of the profile section, the essence is that the shape of the section affects the expression of the shape characteristics of the profile used to show people. As an intermediate product, the general consumer has more in-depth consideration than the end user. The more in-depth consideration is not the end user's simple perception of side beauty, but the expression of side beauty display and cross-section to side beauty display, thus affecting the end user's perception, and more will consider the correlation between cross-section structure and beauty perception, rather than what kind of beauty the cross-section structure itself will give people. People who have studied industrial design know that "industrial design leads to a new relationship between commodities and users except for the simple use of functions". Although a large number of designs have both the use of functions and the consideration of "beauty", they cannot get rid of the constraints of "new relationship". With the help of this new relationship, it makes the right holders and the public have relatively stable expectations of the object of protection of the design, instead of dividing the characteristics of "use" in some cases and taking the characteristics of "use" into account in other cases. It has to be said that profiles, a product with relatively few characteristics belonging to design elements, are identified as the object of design protection, which is very tasteless. However, the characteristics that should not belong to design elements should not be taken into account because of the lack of them, otherwise there will be a very large space for the determination of the scope of protection of design patents, and the public will not have a stable expectation of its protection scope, and then make the behavior of the public infringement in unpredictable, unstable, uncertain state, can not reasonably arrange their own production and operation.

2021-12-23

The legal observation (I) of government investment and financing. On the dilemma and adjustment path of PPP development.

Foreword If it is not appropriate to describe the current situation of PPP as "in trouble", it should not cause too much controversy to describe it as "in an awkward situation. Regardless of the decreasing number of PPP projects that have been signed and landed in previous years, it is quite common that projects should be returned to the warehouse but not returned to the warehouse or projects should be rectified without policy support due to problems such as untimely government payment, over-generalization of total project investment, no actual operation and maintenance content of projects, insufficient payment income of project users, and non-standard project performance management, what's more, local governments have come up with the idea of returning projects that have been put into storage because they are not willing to deal with the normative supervision of projects. However, regardless of the current situation of PPP, unless there is a better and more standardized investment and financing mechanism in the field of infrastructure and public utilities, PPP still has the applicability and vitality of consensus, and PPP projects that have been landed will continue to be implemented. PPP has a more promising future. Since 2014, with the introduction of a series of PPP promotion policy documents by the State Council, the Ministry of Finance and the National Development and Reform Commission, the local government has ushered in a period of vigorous development of PPP. Since the strengthening of PPP normative management in 2019 (represented by the document "Implementation Opinions on Promoting the Normative Development of Government and Social Capital Cooperation" (Caijin [2019] No. 10)), PPP development has entered a relatively quiet period. Although the new warehousing projects can still maintain hundreds of net growth every year-according to the monthly report data of the national PPP comprehensive information platform project management database from January to may 2021, there are 270 new warehousing projects, 249 contracted landing projects, 174 construction projects, 149 returned projects and 121 net increase projects-on the surface, local PPP is still in a state of steady development, however, many problems are hidden under the calm appearance: on the one hand, the project has actually been terminated ahead of schedule, but there are many projects that have not been returned due to the failure to reach a compensation plan and other reasons, and these projects have not been counted in the return data; On the other hand, due to insufficient feasibility study and imperfect error correction mechanism in the early stage, the implementation stage of new warehousing projects is facing adjustment difficulties. The dilemma of PPP development in 1. If it is not appropriate to describe the current situation of PPP as "in trouble", it should not cause much controversy to describe it as "in an awkward situation. Let's first look at some of the problems encountered during the implementation phase of the stock project, which, while not necessarily universal, are clearly not limited to individual cases, but have class or geographical commonalities. According to the existing policy, some problems have led to the operation of the project is not standardized. (I) government payment is not timely Government payment is not timely has become a common phenomenon of PPP projects. The apparent reason is that the government has no money, and local governments are usually not shy about it. The financial ability of local governments to pay is the main reason that affects government payments, but things are not as simple as they seem. Whether it is local governments or social capital, the reason why they prefer to simply attribute the reason to money, in a sense, is nothing more than not wanting to touch the pain point of PPP projects-normative issues. So, what are the pain points behind the government's untimely payment? 1. Project completion settlement and project completion financial accounts are not timely On the surface, the reason for the delay is efficiency, but the following factors may also be involved: (1) The EPC general contractor, especially the fixed total price general contractor, has not made a project budget; (2) There are differences between the government and the social capital on the claims caused by the delay of the construction period. (3) The government and social capital parties cannot agree on the calculation of interest during the construction period of the project, especially in projects where the use of funds by the project company is not standardized (e. g. social capital is collected and used by the project company funds, social capital is not standardized to lead to financing, etc.); (4) The government side and the social capital side cannot reach a consensus on the process of the project completion settlement audit, the government side directly to the project settlement audit, or on the basis of the project company and the construction party settlement audit to review and decide whether to re-audit as appropriate; (5) The procedures for changing the project content are incomplete; (6) the project construction information is not perfect, etc. Without the final financial accounts of the project, the total investment of the project cannot be determined, and the uncertainty of the total investment will inevitably affect the government's payment. 2. Project operation and maintenance costs are unaudited If the social capital party has not budgeted the project operation and maintenance costs in advance and has not been audited afterwards, or if the project operation and maintenance content has changed significantly and the social capital party still applies for payment under the project contract, it is obviously difficult for the government party to fully pay the contract. 3. The project did not do performance evaluation The government did not organize the performance evaluation of the project operation and maintenance in a timely manner. Given that performance evaluation is the basis of project payments, I .e., PPP projects need to strictly implement the pay-for-performance principle, there are procedural obstacles to project payments without performance evaluation. 4. The design of the project payment (return) mechanism is unreasonable. The design of the project implementation plan and the project contract's payment (return) mechanism for the project is not in line with the actual project. For example, the project return mechanism designed by some urban-rural sanitation integration or urban-rural sewage treatment integration projects is feasibility gap subsidy. As the user payment part (garbage disposal fee or sewage treatment fee) has the nature of similar administrative charges, the implementation plan is usually designed to be collected by relevant government departments. If the user payment income actually collected by relevant government departments is insufficient, the government budget only includes the gap subsidy part because the project return mechanism is feasibility gap subsidy, therefore, even if the government is willing to make up the shortfall in user-paid income, it cannot be included in the budget due to the project return mechanism. For example, some packaging projects are designed to be paid by the government only after all the projects enter the operation and maintenance period, but some sub-projects will be completed ahead of schedule and enter the operation and maintenance period. For example, each road in the municipal road project will be completed, accepted and put into use one after another. In this case, even if the government is willing to pay according to the actual situation, the government payment cannot be included in the annual budget due to project design reasons. However, if the government does not pay according to the actual operation and maintenance, then the relevant operation and maintenance costs can only be included in the construction cost, which may lead to the total investment of the project is over-estimated. Total investment of (II) projects The total investment of the project is a common phenomenon in PPP projects. There may be many reasons for the over-generalization of the total investment of the project, among which the social capital is usually caused by poor project organization and management, such as unqualified quality rework, material and labor cost increase caused by construction delay and other factors; the government is usually caused by project content adjustment or design change and other factors; in addition, as mentioned above, there may be cases where the sub-project of the packaged project is completed and accepted in advance and enters the operation and maintenance period, and the government cannot pay for the operation and maintenance, the relevant operation and maintenance fees can only be included in the construction cost resulting in the total investment of the project being over-estimated. If the responsibility for over-generalization of the total investment of the project can be solved according to the project contract, the normative problems of the project caused by the change of the total investment of the project may affect the subsequent operation of the project. According to the Ministry of Finance "on further strengthening the government and social capital cooperation (PPP) demonstration project standard management notice" (financial [2018] 54) requirements, for the demonstration project of the total investment of major changes, to deal with the project implementation plan, value for money evaluation report, financial affordability demonstration report, procurement documents, project contracts and other corresponding adjustments and changes. Although the notice is aimed at demonstration projects, according to its basic spirit, it should by extension be applicable to all PPP projects. However, the problem is that because the above notice does not further explain the "significant change", different understandings may lead to different results. Some local documents require that the project should withdraw from the project management database if the feasibility study report, project approval, implementation plan, value for money evaluation report, financial affordability demonstration report, procurement documents, project contract, etc. are adjusted and changed accordingly due to major changes in the core boundary conditions such as cooperation content and total investment. However, due to uncertainty as to what is meant by "major changes", many over-the-top projects can only be put on hold at present. No operation and maintenance content for (III) project Some PPP projects actually have no operational content. Such as shed reform resettlement houses, museums, archives, party history museums, exhibition halls, libraries, public hospitals, public schools, government affairs centers and other projects, the "Implementation Plan" usually takes property management services as the content of project operation and maintenance, but according to my country According to the "Property Management Regulations", the main body of property management services should be determined by the owner, so the social capital is not naturally the main body of project operation and maintenance. Moreover, the actual operation and maintenance subject of most projects is indeed not the social capital side. In the event that the social capital party is unable to participate in the property management services of the above-mentioned project, the project lacks other elements that can be operated and maintained by the social capital party, so the above-mentioned project actually has no operation and maintenance elements. Insufficient revenue from user fees for (IV) projects In the early storage of the local integrated pipe corridor project, due to the lack of underground penetration capacity of the pipe corridor within a certain geographical area and the high cost of entering the corridor, the pipe corridor was not actually put into use after it was built, that is, there was no corresponding pipe network into the corridor. However, in order to maintain the sustainable and daily safety of the pipe gallery throughout its life cycle, the social capital side also needs to maintain it on a daily basis. This would result in only maintenance costs and no corresponding operating income, I .e., zero user fee income for the project. Since the project implementation plan usually designs a considerable user fee income for the utility tunnel, the project will not be sustainable due to the imbalance of income and expenditure unless the project payment mechanism is adjusted or the utility tunnel project is adjusted out of the project package (in the case of packaging). In addition, as mentioned above, in the project of integration of urban and rural sanitation or integration of urban and rural sewage treatment, if the project return mechanism is designed as feasibility gap subsidy, then the user's paid part such as garbage treatment fee, sewage treatment fee, etc. will usually have insufficient income-the reasons may include inaccurate financial calculation, adjustment or cancellation of charging items or standards, etc, I won't repeat it here-and this risk obviously cannot be simply allocated to the social capital side. In this way, the above situation will lead to the same situation as the above-mentioned total investment of the project, that is, the project should be adjusted or returned to the warehouse or temporarily put on hold. (V) project performance management is not standardized Performance management includes the design and adjustment of performance evaluation indicators, the preparation of performance evaluation work programs, performance monitoring, performance evaluation, and the application of performance evaluation results, rather than simply performance evaluation and application of results. The performance evaluation indicators of some projects are seriously divorced from the actual situation of the project but are not adjusted, resulting in a mere formality of performance evaluation. Some projects have introduced an expert review mechanism in the performance evaluation work plan when the performance evaluation results are opposed, but they have not further clarified the expert selection mechanism and review organization process, resulting in the expert review mechanism being useless. However, setting the expert review mechanism as the pre-procedure of the above-mentioned dispute resolution mechanism affects the timely making of project performance evaluation results. Some local governments have a one-sided understanding of the basic principle of project payment according to efficiency, believing that there is no need for performance evaluation if the project does not pay, so they openly do not evaluate the project performance on the grounds that the project does not pay (as mentioned above, there is a situation that the government does not pay in time for PPP projects). Other local governments use the reason of saving expenses related to performance evaluation, under the condition that the government pays quarterly in the project contract, the performance evaluation is organized every six months or once a year. The performance evaluation cycle does not match the payment cycle, and the payment according to the efficiency cannot be effectively implemented. (VI) project information is not perfect The standardized operation of the project is the basis for the improvement of project storage information. As mentioned earlier, there will be inconsistencies between the total project investment, project operation and maintenance content, project return mechanism, etc. in the actual implementation of the project and the information in the preparation phase. According to the existing policies, major changes in the project need to be regulated through adjustment or treated as returned to the warehouse. However, the existing policy is not further clarified as to what constitutes a major change; therefore, many of the projects with the above problems are currently on hold, neither adjusted nor treated as returned. Based on this, the project storage information can only be temporarily shelved and cannot be improved in time. Adjustment Path of 2. PPP Standard Development (I) timely specification rectification According to the existing policy can regulate the rectification timely organization rectification. For example, if the project performance management is not standardized, it should be organized and carried out in a timely and standardized manner. If the government does not pay in time, it should improve the necessary procedures in time and fulfill the payment obligation according to the contract. If rectification cannot be regulated according to existing policies, rectification shall be made on the basis of adjusting existing policies or introducing new policies. For example, if the project construction content is changed, the total project investment is over-generalized, the project operation and maintenance content is adjusted, and the project return mechanism does not conform to the actual project, etc., through adjusting the existing policies or issuing new policies, it is clear under what circumstances can be rectified and under what circumstances should be returned to the warehouse. For the timely adjustment of receipt information that can be rectified by adjusting receipt information, rectification is completed. (II) decisively return to the warehouse If it violates the basic principles of PPP and cannot be rectified, it shall be directly returned to the warehouse. For example, projects (sub-projects) without actual operation and maintenance content, such as shed reform resettlement houses, museums, archives, party history museums, exhibition halls, libraries, public hospitals, public schools, and government affairs centers, belong to BT projects. If the above items are operated separately, they will be processed directly as warehouse return; if they are packaged, the relevant sub-items will be adjusted to warehouse-out on the basis of adjusting the project warehouse-in information. If it does not violate the basic principles of PPP, but should be returned to the warehouse according to the policy requirements, it shall be returned to the warehouse as required. For example, the above-mentioned major changes in the project, through the adjustment of existing policies or the introduction of new policies, still do not meet the requirements of the specification should be returned to the library, according to the return of processing. (III) Improve Policy Guidelines PPP is still in the stage of exploration and development in China, and many problems can only be gradually reflected through the practice of project operation, especially in the implementation stage. According to the foregoing, some problems are caused by the irregular operation of the project, while others are caused by the imperfection of existing policies. For example, Caijin [2018] No. 54 requires that projects with major changes such as the total investment of the project should be rectified by adjusting the corresponding storage information, but it is not clear what is meant by "major changes", resulting in some changes in the project can be rectified by adjusting the storage information or returned to the warehouse at a loss as to what to do; for another example, the Ministry of Finance's Guidelines for the Performance Management of Government-Social Capital Cooperation (PPP) Projects has introduced an expert review mechanism for objecting to the results of performance evaluation, but the selection mechanism of review experts, such as the number of expert groups, the professionalism and level of expert group members, and the allocation ratio of experts between the government and social capital, is not clear, in addition, the organization process of expert review, such as who can initiate expert review by the government and social capital, how to deal with it when the government does not initiate or select experts, the arrangement of expert review venues, the burden of expert review costs, etc., is not clear, resulting in the failure of the expert review mechanism to actually play a role. Based on this, in the context of PPP-related laws and regulations have not yet been issued, the State Council and relevant departments need to sum up experience in a timely manner according to the operation practice of PPP projects, and constantly improve relevant policy guidelines.

2021-12-23

Viewpoint | Research (II) on the Nature of Network Writing Agreement and Related Copyright Issues

Abstract: The difference between the creation and utilization of network literary works and traditional written works is not only the difference between carrier and media, but also the relevant business model is completely different from the beginning of network literature. Thus, the traditional system of copyright and neighboring rights, based on the balance of interests between authors and publishers, cannot achieve its legislative intent in this area. The various ways of dissemination and utilization of works, especially the development of derivatives, make the creation and value of works more dependent on the power of the network platform, and at the same time strengthen the dominant position of the network platform in the literary creation market. The nature of the agreement between the online literature platform and the author, and the legal relationship established by its nature, cannot be determined only by the wording of the agreement provisions, but should analyze the agreement provisions and the spirit of relevant legislation, and combine transaction habits and good faith Principles, define the essence of the legal relationship between the two parties, so as to determine the nature and validity of the agreement and its terms, and clarify the rights and obligations of both parties, and the assumption of external liability. The Relationship between the Creator and the Platform of 2. Network Literature The exercise of copyright caused by the change of (I) carrier is more dependent on the platform Many scholars have studied the special problems faced by traditional literary and artistic works in the Internet age, which will not be repeated here. The focus of this article is that when the main form of communication of literary works has shifted from paper publishers to online platform operators, the exercise of copyright and related rights is gradually becoming more dependent on the platform, and the dependence of works and authors on the platform is far greater than its dependence on publishers in the past. The strengthening of this dependence is first and foremost technology-related. Since online reading is not based on the spread of tangible copies, the copyright system that originated in the printing era is constantly being compressed in the new era. [] The discussion of copyright issues in the Internet age often starts from the convenience of infringing copy and dissemination. In addition to the "safe harbor principle", which has received more attention, it also produces research on technical protection measures (TPMs) and anti-circumvention legislation. This is also one of the main amendments to the copyright law that has just been announced. The formation of technical protection measures is almost impossible to achieve in the absence of the network platform. In addition, when the existing copyright specific system is applied to network literary works, it must also rely on the relevant functions of the platform to be realized. Two examples are given here. The first example is the application of the concept of "distribution" and the principle of "exhaustion of rights", which in the age of digital networks depends on the functionality of the platform. Exhaustion of rights means that the copyright owner has no right to control the re-transfer of the original or authorized and legally produced copy of the work after the first sale or gift to the public with the permission of the copyright owner. [] This principle is based on the tangible nature of the copy and the real right of the work carrier. The object of exhaustion of rights is a specific copy of the work, so there is no room for application in general online distribution. [] In the context of digital networks, the boundary between "transfer of copies" and "copying" has almost disappeared. In this case, the transfer of copies protected by the principle of exhaustion of rights must be expressed as the creation of new copies and the deletion of old copies. This kind of operation, in addition to effective technical protection measures, is almost impossible to achieve. [] In order to achieve this function, online literature platforms often no longer provide any copies that can be disseminated separately from the system of the platform itself. The work can only be read online with a specific account, or by using offline copies downloaded in advance on the mobile client. These offline copies are often encrypted, so they cannot be transmitted by the user, nor can they be read by different account subjects on the same device. This new way of dissemination of works once led to the study of "browsing" behavior in copyright theorists, leading to the concept of "right of contact. [] Although it is still controversial whether the "right of contact" can be a separate right, or just a form of expression of the right of reproduction, in fact, for the special form of online literary works, "do not get any copies" The browsing method has indeed become the mainstream. And this way of communication can only be carried out through the network platform. The second example is related to the protection of the personal rights of authors. The Copyright Law and related judicial interpretations allow the public or other subjects to reprint published works or fragments of works under certain specific circumstances, but these reprints do not harm the personal rights of the author. As a prerequisite, in particular, requirements such as the identification of the author are made. [] In order to promote individuals or their works, some authors often indicate in their own articles, allowing others to reprint their works under the premise of indicating the source. However, in the form of UGC, when online literary works are reprinted, their author information is often lost or deleted "intentionally or unintentionally. In the professional network literature platform, the identification of reprint and authorship is realized through a unified application program interface (API) and code protocol. This makes the reprint of the article from the past simple copy-paste, into a more advanced social network (SNS) interaction, the reprint of the article is generally through the network platform to provide a "share" button, sent to other platforms that support the same protocol, and automatically indicate the author and the source of the article. Under this mechanism, it is almost impossible, at least inconvenient, to delete authorship information. The establishment of this mechanism depends not only on the realization of the technology of the specific network platform itself, but also on the establishment and promotion of the relevant standards of the network literature platform industry. In addition, this mechanism also plays an important role in preventing other websites from evading tort liability through the "safe haven principle. The dependence of network literary works on the network platform is also reflected in the dissemination and utilization of works and the demand for resources and capital. From the perspective of resources, it is mainly related to the dissemination and creation of works. At present, the number of online writers in China has reached tens of millions [], while the number of readers has exceeded 0.4 billion. The huge number means that the promotion of authors, especially new writers, is more difficult, resulting in the "2-8 effect" of online writers in terms of income. [] However, the huge amount of data also means that it is possible to analyze the author's style and readers' likes and dislikes through big data, thus enabling the network platform to help readers quickly match articles they may be interested in through algorithm recommend and other means, and enabling the author to anticipate the market when creating so as to better design the writing content. From the perspective of capital, it is mainly related to the use of works. With the development of the cultural industry, the proportion of the development of literary derivatives in the whole literary industry is increasing. [] The main form of this derivative is the development of related film and television works and cultural and creative products. These developments have strong capital-driven characteristics and require significant capital support, while requiring a certain amount of output to spread risk and cost. In this case, the network platform not only reflects the advantages of its resource integration, but also provides the possibility for this kind of development. In addition, the current development of literary derivatives often uses copyright pledge financing to solve the funding problem [], and network platform operators, as professional intellectual property operators, are easier to form scale and comparative advantages in these jobs. The dependence on the platform has produced the result of the unity of opposites in two aspects: on the one hand, the network platform has been growing, and its role in the creation, dissemination and copyright utilization and protection of works has become increasingly obvious; on the other hand, the growth of the network platform has gradually established a monopoly position in the market, especially in the relationship between the author and the network platform operator, The author group is increasingly in a disadvantageous position. As a result, the relationship of interests, rights and obligations between the author and the dissemination, which has been established for tens of hundreds of years, but has not yet been stable, has been broken again. (II) interests and rights relations are broken From the perspective of the historical evolution of the copyright system, the "copyright" as a privilege originated from the development of printing and the rise of the specialized publisher industry. The modern copyright system, on the other hand, is due to the rise of the author's right, the game of interests and the balance, and at the same time relying on the development of the theory of private rights during the bourgeois revolution [], and finally after more than 300 years of establishment of the author's right as the core of the modern copyright system, as well as the communicator's right as the core of the neighboring rights system. The debate between the author and the online platform, whether it is the cause or the focus of the debate, is similar to the dispute between "author rights" and "copyright" hundreds of years ago. From the appearance, the current network writing protocol has no obvious flaws in terms of form or from the perspective of the authenticity of meaning. But objectively, from the perspective of the ownership of rights and the distribution of benefits, the author group is very dissatisfied with the content and results of these contracts. This dissatisfaction not only means that the needs of a certain interest group cannot be met, but also may lead to the failure of the existing relatively stable contract and negotiation mechanism based on the expectation and distribution of interests. From the perspective of benefit expectation, under the mode of free reading and membership fee, the source of website income does not point to specific works, let alone specific authors. This is not a big problem in the paper age. The era of paper media is generally characterized by "buy the manuscript first, then publish it", and the commercial risk is borne by the publisher. Although the income of newspapers and periodicals based on accompanying advertisements does not point to specific authors, for specific publications, in a certain period of time, the circulation and other factors that affect advertising revenue are relatively certain. At the same time, a set of relatively stable standards have been formed within the industry for reference. Therefore, the remuneration model of a particular publication based on its own size, based on the number of words, is both predictable and acceptable to the author. However, in the Internet age, the model of "publish first, then divide" is adopted, and the author's income from the work is unpredictable. The ability of property rights to regulate the allocation of resources through the operation of the market is based on as complete information as possible and as predictable as possible, otherwise it will inevitably lead to the creation of a large number of incomplete contracts, higher transaction costs, and market failure. In the Internet age, this decline in predictability is not a subtle change, but a systematic one, which is related to the distribution of benefits that can be generated subsequently. This is most prominent in the operation of derivatives of works. In the use of traditional works, publishers or network platforms can only enjoy publishing rights, information network dissemination and very limited modification rights based on agreements and legal regulations. The author almost retains most of the copyright, especially the right of deduction, which is mainly manifested in the right to adapt the work into film and television works. When a demand for derivative creation arises, the producer generally contacts the author and obtains authorization. However, in the era of OGC and PGC, the proportion of derivatives in the whole work utilization has increased, which makes the network platform hope to control the vast majority of copyright rights in their own hands. Therefore, when the online writing agreement is concluded, many platform parties will require the author to license or even transfer the copyright and other rights of existing works or future works, and even bring into control the rights that are exclusive to the author under the copyright law-the personal right of the work (mainly the right of signature). This may result in serious dissatisfaction among the author community when the benefits of derivatives operations are much greater than the author originally expected, especially when the benefits are disproportionate to the completion of the online reading share that the author receives based on the writing agreement. But from another point of view, the development of derivatives is closely related to risk. Still taking film and television adaptation as an example, among all online literary works, works with adaptation value may only account for a small number. At the same time, the production of film and television works, in addition to the work itself, also requires a lot of capital and other resources to intervene, and faces huge investment risks. On the one hand, the author community cannot carry out this work, on the other hand, the author generally cannot bear the risks associated with it. Network platforms are often packaged to obtain authorization to spread the risk. When entering the era of capital operation [], this situation becomes even more an inevitable result. In order to obtain investment, online platforms often use copyright as a financing tool in batch form and pledge to obtain funds. In this case, if the network platform operator cannot obtain the complete copyright, or needs to sign a peer-to-peer agreement with individual authors, the development of large-scale risk-controlled derivatives is basically impossible. From this perspective, the aforementioned reliance on the platform is further strengthened. The conflict of interest between authors and publishers hundreds of years ago resulted in the complete inversion of the publishing right system to the author's right system and the establishment of a modern copyright system with the private civil rights of creators as the core, but at the same time, through the regulation of the neighboring rights system, contract theory and market forces, the interests of publishers not only did not suffer too much blow, but also promoted the prosperity of the literary publishing industry, it promotes the realization of the value of the work and the win-win situation of the author and the publisher group. The most important reason is mainly due to the establishment of a copyright rights system with property rights as the core, which makes rights and obligations clear and the power of the market to allocate resources. This is consistent with the economic theory of property law and the economic analysis of intellectual property law. This paper does not attempt to predict the direction and development results of this conflict, but still advocates that the original economic intention of the copyright system should be realized through the clear division of rights and obligations-to realize the effective allocation of resources through the market and promote the development of social culture.

2021-12-22

Company Litigation Study... Company Litigation Judgment Rules for the Application of Company Liquidation Disputes.

Foreword Company liquidation refers to the act of clearing up the company's claims and debts, disposing of the company's remaining property and terminating the company's legal personality in accordance with the procedures prescribed by law in the event that the company is facing dissolution. Applying for company liquidation refers to that after the company is dissolved, the directors, shareholders and actual controllers of the company fail to perform their duties and fail to form a liquidation group for liquidation within the time limit specified in the company law, or deliberately delay the liquidation although the liquidation group is established, or there are other illegal liquidation behaviors that may seriously damage the interests of shareholders and creditors of the company, The shareholders or creditors of the company shall apply to the people's court for compulsory liquidation of the company. This paper will analyze the application company liquidation disputes from the aspects of legal provisions, litigation overview, dispute issues and adjudication rules. 1. related regulations 1. Company Law of the People's Republic of China Article 183 Where a company is dissolved due to the provisions of items (I), (II), (IV) and (V) of Article 180 of this Law, a liquidation group shall be established within 15 days from the date of occurrence of the reasons for dissolution and liquidation shall begin. The liquidation group of a limited liability company shall be composed of shareholders, and the liquidation group of a joint stock limited company shall be composed of directors or persons determined by the general meeting of shareholders. If a liquidation group is not established within the time limit, the creditor may apply to the people's court to designate relevant personnel to form a liquidation group to carry out liquidation. The people's court shall accept the application and promptly organize a liquidation group to carry out liquidation. Article 184 during the liquidation period, the liquidation group shall exercise the following functions and powers: (1) clean up the company's property, prepare the balance sheet and property list respectively; (II) notify and announce the creditors; (III) handle the outstanding business of the company related to liquidation; (IV) and pay the taxes owed and the taxes generated in the process of liquidation; (V) clean up the creditor's rights and debts; (VI) and deal with the remaining property of the company after paying off debts; (VII) participate in civil litigation activities on behalf of the company. Article 185 The liquidation group shall notify the creditors within 10 days from the date of its establishment, and make a public announcement in the newspaper within 60 days. Creditors shall, within 30 days from the date of receipt of the notice, or within 45 days from the date of announcement if they fail to receive the notice, declare their claims to the liquidation group. When filing a claim, a creditor shall explain the relevant matters of the claim and provide supporting materials. The liquidation group shall register the claims. During the declaration of claims, the liquidation group shall not pay off the creditors. Article 186 After liquidating the company's property and preparing the balance sheet and property inventory, the liquidation team shall formulate a liquidation plan and submit it to the shareholders' meeting, the general meeting of shareholders or the people's court for confirmation. The remaining property of the company after paying the liquidation expenses, the wages of the employees, the social insurance expenses and the statutory compensation, paying the taxes owed and paying off the debts of the company shall be distributed by the limited liability company according to the proportion of the capital contribution of the shareholders, and the limited liability company shall be distributed according to the proportion of the shares held by the shareholders. During the liquidation period, the company shall survive, but shall not carry out business activities unrelated to liquidation. The property of the company shall not be distributed to the shareholders until it has been paid off in accordance with the provisions of the preceding paragraph. Article 187 If the liquidation team finds that the company's property is insufficient to pay off its debts after liquidating the company's property, preparing the balance sheet and property inventory, it shall apply to the people's court for bankruptcy according to law. After the company is declared bankrupt by the people's court, the liquidation group shall transfer the liquidation affairs to the people's court. Article 188 After the liquidation of a company is completed, the liquidation group shall prepare a liquidation report, which shall be submitted to the shareholders' meeting, the shareholders' general meeting or the people's court for confirmation, and shall be submitted to the company registration authority to apply for cancellation of the company's registration and announce the termination of the company. Article 189 The members of the liquidation group shall be devoted to their duties and perform their liquidation obligations in accordance with the law. Members of the liquidation group shall not take advantage of their functions and powers to accept bribes or other illegal income, and shall not embezzle the property of the company. If a member of the liquidation group causes losses to the company or its creditors intentionally or through gross negligence, he shall be liable for compensation. 2, the Supreme People's Court on the application.<中华人民共和国公司法>(II) on Certain Issues Article 7 A company shall, in accordance with the provisions of Article 70 of the Civil Code and Article 183 of the Company Law, set up a liquidation group within 15 days from the date of the occurrence of the cause of dissolution and begin to liquidate itself. Under any of the following circumstances, if a creditor, shareholder, director or other interested party applies to the people's court to designate a liquidation group to carry out liquidation, the people's court shall accept the application: If the (I) company fails to form a liquidation group within the time limit for dissolution; (II) deliberately delaying the liquidation despite the establishment of a liquidation group; (III) illegal liquidation may seriously harm the interests of creditors or shareholders. Article 8 When the people's court accepts a company liquidation case, it shall promptly appoint relevant personnel to form a liquidation team. The members of the liquidation group may be selected from the following persons or institutions: (I) the shareholders, directors, supervisors and senior managers of the Company; Law firms, accounting firms, bankruptcy liquidation firms and other social intermediaries established by the (II) in accordance with the law; Persons who have relevant professional knowledge and have obtained professional qualifications in social intermediary agencies such as law firms, accounting firms, and bankruptcy liquidation firms established in accordance with the (III). Article 9 If the members of the liquidation group designated by the people's court are in any of the following circumstances, the people's court may replace the members of the liquidation group upon the application of creditors, shareholders, directors or other interested parties of the company, or ex officio: (I) acts in violation of laws or administrative regulations; (II) loss of ability to practice or capacity for civil conduct; (III) acts that seriously harm the interests of the company or creditors. Article 10 Before the liquidation of a company according to law is completed and the cancellation of registration is completed, the civil proceedings of the company concerned shall be conducted in the name of the company. If a company establishes a liquidation group, the person in charge of the liquidation group shall participate in the litigation on behalf of the company; if the liquidation group has not been established, the original legal representative shall participate in the litigation on behalf of the company. Article 11 In the liquidation of a company, the liquidation group shall, in accordance with the provisions of Article 185 of the Company Law, notify all known creditors in writing of the dissolution and liquidation of the company, and make an announcement in an influential newspaper throughout the country or at the provincial level where the company is registered according to the size and geographical scope of business of the company. If the liquidation group fails to perform the obligation of notice and announcement in accordance with the provisions of the preceding paragraph, resulting in the creditor's failure to declare the creditor's claim in time and not being paid, and the creditor claims that the members of the liquidation group shall be liable for the losses caused thereby, the people's court shall support it in accordance with the law. Article 12 When a company is liquidated, if the creditors have objections to the claims approved by the liquidation group, they may request the liquidation group to re-approve them. If the liquidation group does not re-approve the claims, or the creditors still have objections to the re-approved claims, and the creditors file a lawsuit with the company as the defendant to the people's court for confirmation, the people's court shall accept it. Article 13 If a creditor fails to declare its claims within the prescribed time limit and makes a supplementary declaration before the end of the company's liquidation procedure, the liquidation group shall register it. The termination of the liquidation procedure of the company means that the liquidation report has been confirmed by the shareholders' meeting, the general meeting of shareholders or the people's court. Article 14 Creditors may pay off their claims in accordance with the law in the company's undistributed property. If the company's undistributed property cannot be paid off in full, and the creditor claims that the shareholder shall pay off the property it has acquired in the distribution of the remaining property, the people's court shall support it; except where the creditor fails to declare the claim within the prescribed time limit due to a major fault. If a creditor or liquidation group files an application for bankruptcy liquidation with the people's court on the grounds that the company has not yet distributed the property and the property already acquired by the shareholders in the distribution of the remaining property cannot be fully paid off the claims of the supplementary declaration, the people's court shall not accept it. Article 15 Where a company is liquidated on its own, the liquidation plan shall be submitted to the shareholders' meeting or the general meeting of shareholders for resolution and confirmation; where the people's court organizes liquidation, the liquidation plan shall be submitted to the people's court for confirmation. The liquidation group shall not implement the liquidation plan without confirmation. If the implementation of an unconfirmed liquidation plan causes losses to the company or creditors, and the company, shareholders, directors, other interested parties of the company or creditors claim that the members of the liquidation group shall be liable for compensation, the people's court shall support it in accordance with the law. Article 16 Where a people's court organizes liquidation, the liquidation group shall complete the liquidation within six months from the date of its establishment. If the liquidation cannot be completed within six months due to special circumstances, the liquidation group shall apply to the people's court for an extension. Article 17 If the liquidation group appointed by the people's court finds that the company's property is insufficient to pay off its debts when it cleans up the company's property and prepares the balance sheet and property list, it may negotiate with the creditors to make the relevant debt settlement plan. If the debt settlement plan is confirmed by all creditors and does not harm the interests of other interested parties, the people's court may approve it in accordance with the application of the liquidation group. After paying off the debts in accordance with the liquidation plan, the liquidation group shall apply to the people's court for a ruling to terminate the liquidation procedure. If the creditor does not confirm the debt settlement plan or the people's court does not approve it, the liquidation group shall apply to the people's court for bankruptcy according to law. Article 18 If the shareholders of a limited liability company, the directors and the controlling shareholders of a joint stock limited company fail to set up a liquidation group to start liquidation within the statutory time limit, resulting in the devaluation, loss, damage or loss of the company's property, and the creditors claim that they are liable for compensation for the company's debts within the scope of the losses caused, the people's court shall support it in accordance with the law. If the shareholders of a limited liability company, the directors and the controlling shareholders of a limited liability company are negligent in performing their obligations, resulting in the loss of the company's main property, account books, important documents, etc., and cannot be liquidated, and the creditors claim that they are jointly and severally liable for the company's debts, the people's court shall support it in accordance with the law. If the above-mentioned situation is caused by the actual controller, and the creditor claims that the actual controller shall bear the corresponding civil liability for the company's debts, the people's court shall support it in accordance with the law. Article 19: After the company is dissolved, the shareholders of a limited liability company, the directors and controlling shareholders of a joint stock limited company, and the actual controller of the company maliciously dispose of the company's property and cause losses to creditors, or use false liquidation reports without liquidation according to law. If the company registration authority is deceived to cancel the registration of the legal person, the people's court shall support it in accordance with the law. Article 20 When a company is dissolved, it shall apply for cancellation of registration after the liquidation is completed according to law. The people's court shall support the claim that the shareholders of the limited liability company, the directors and controlling shareholders of the limited liability company, the directors and controlling shareholders of the limited liability company, and the actual controller of the company shall bear the responsibility for the settlement of the company's debts. If the company goes through the cancellation registration without liquidation according to law, the shareholders or a third party promises to be liable for the company's debts when the company registration authority goes through the cancellation registration, and the creditors claim that they bear the corresponding civil liability for the company's debts, the people's court shall support it in accordance with the law. Article 21 Where the shareholders of a limited liability company, the directors and controlling shareholders of a joint stock limited company, and the actual controllers of the company who shall be liable in accordance with the provisions of Article 18 and the first paragraph of Article 20 of these regulations are two or more, if one or more of them claim that other persons share the responsibility according to the size of the fault after assuming civil liability in accordance with the law, the people's court shall support it in accordance with the 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. Article 23 If a member of a liquidation group violates laws, administrative regulations or the articles of association of the company while engaging in liquidation affairs and causes losses to the company or creditors, and the company or creditors claim that it is liable for compensation, the people's court shall support it in accordance with the law. If a shareholder of a limited liability company or a shareholder of a joint stock limited company who individually or collectively holds more than 1% shares of the company for more than 180 consecutive days, in accordance with the provisions of the third paragraph of Article 151 of the Company Law, if a member of the liquidation group has any act mentioned in the preceding paragraph, the people's court shall accept the case. If the company has been liquidated and canceled, and the above-mentioned shareholders directly file a lawsuit in the people's court with the members of the liquidation group as the defendants and other shareholders as the third party with reference to the provisions of paragraph 3 of Article 151 of the Company Law, the people's court shall accept it. Article 24 Cases of company dissolution and company liquidation shall be under the jurisdiction of the people's court in the place where the company is domiciled. The domicile of the company refers to the location of the company's main office. If the location of the company's office is not clear, the case shall be under the jurisdiction of the people's court in the place of its registration. The basic people's courts shall have jurisdiction over the dissolution litigation cases and company liquidation cases of companies approved and registered by the company registration authorities of counties, county-level cities or districts; the intermediate people's courts shall have jurisdiction over the dissolution litigation cases and company liquidation cases of companies approved and registered by the company registration authorities at or above the prefecture-level cities. (3) the People's Republic of China Civil Code Article 69 A legal person shall be dissolved under any of the following circumstances: (I) the period of existence stipulated in the articles of association of the legal person expires or other reasons for dissolution stipulated in the articles of association of the legal person occur; The authority of the (II) legal person is dissolved by resolution; The (III) needs to be dissolved due to the merger or division of the legal person; The business license and registration certificate of a (IV) legal person are revoked according to law, and the legal person is ordered to close down or be revoked; (V) other circumstances prescribed by law. Article 70 Where a legal person is dissolved, except in the case of merger or division, the liquidation obligor shall promptly form a liquidation group for liquidation. Members of the executive or decision-making bodies such as directors and directors of a legal person are the liquidation obligors. Where laws and administrative regulations provide otherwise, such provisions shall prevail. If the liquidation obligor fails to perform the liquidation obligation in time and causes damage, it shall bear civil liability; the competent authority or the interested party may apply to the people's court to designate relevant personnel to form a liquidation team to carry out liquidation. 4. Minutes of the Symposium on the Trial of Cases of Compulsory Liquidation of Companies by the Supreme People's Court Article 14 If the respondent fails to provide evidence to the contrary after the applicant has provided the respondent's intentional delay in liquidation in its own liquidation, or if there are other evidentiary materials that may seriously harm the interests of creditors or shareholders, the people's court shall accept the application for compulsory liquidation filed by the applicant. If a creditor applies for compulsory liquidation, the main property, account books, important documents, etc. of the respondent are lost, or the whereabouts of the respondent's personnel are unknown, resulting in the inability to liquidate, the people's court shall not reject it on this ground. Article 15 If, after accepting an application for compulsory liquidation, the people's court, upon examination, finds that the application for compulsory liquidation does not conform to the provisions of the law, it may rule to reject the application for compulsory liquidation. Overview of 2. Litigation Applicant: Shareholder/Creditor/Director</中华人民共和国公司法>

2021-12-21

Point of View | On the Protection of Job Invention and Creation

According to the Patent Law and its implementing rules, the intellectual property right of service invention creation belongs to the unit, and the inventor only enjoys the right of signature and the right to reward. In practice, the unit only stipulates the obligations of the inventor in the contract or rules and regulations, rarely stipulates its rights, does not pay rewards and remuneration in accordance with the law, and infringes on the inventor's right of signature. Taking into account the unit's material input and actual management expenditure, it is necessary to take into account the interests of both parties, mobilize the enthusiasm of both parties, and effectively protect the legitimate rights and interests of the creators of scientific and technological achievements. Definition of 1. Service Invention-Creation Service inventions and creations refer to inventions and creations completed by performing the tasks of the unit or mainly using the material and technical conditions of the unit. If the unit has a contract with the inventor or designer to make an agreement on the right to apply for a patent and the ownership of the patent right, the agreement shall be followed. In accordance with the provisions of the Patent Law and the Regulations for the Implementation of the Patent Law, an invention-creation that falls under one of the following two circumstances is a service invention-creation: 1. Perform the tasks of the unit to complete the invention. It mainly includes three situations:(1) inventions and creations made in their own work;(2) inventions and creations made by performing tasks other than their own work delivered by the unit;(3) inventions and creations made within one year after retirement, transfer from the original unit or within one year after the termination of labor and personnel relations, which are related to their own work undertaken by the original unit or tasks assigned by the original unit. 2. Inventions and creations completed by using the material and technical conditions of the unit. The material and technical conditions of the unit mainly refer to the funds, equipment, spare parts, raw materials or technical data not disclosed to the public. Regarding the ownership of the rights of service inventions, according to the "Patent Law" and the "Implementation Rules of the Patent Law", the right to apply for a patent for a service invention-creation belongs to the unit. After the application is approved, the unit is the patentee. The unit shall have the right to dispose of its right to apply for a patent for a service invention-creation and the patent right. According to actual needs, the unit may also adopt other forms of intellectual property protection other than patent protection, such as the right to new plant varieties, the right to layout design of integrated circuits, and the protection of technical secrets. Protection Measures for 2. Service Inventions and Creations On April 2, 2015, the Legislative Affairs Office of the State Council announced the "Draft Regulations on Service Inventions (Draft for Review)" (hereinafter referred to as the "Draft for Review") submitted by the Intellectual Property Office and the Ministry of Science and Technology to the State Council for deliberation to solicit opinions from all walks of life. Although the draft for review has not yet been promulgated and implemented, some of these systems are very worthy of reference by units and inventors or designers, and can play a positive role in promoting the management of service inventions.. In combination with the draft for examination and approval, the patent law, the detailed rules for the implementation of the patent law and other relevant provisions, the measures and suggestions for the protection of service inventions and creations are put forward: (I) Establishment of a System of Rewards and Remuneration for Job Inventions The service invention management system is mainly about the application, management, application, reward, protection and other aspects of the service invention, which should be clearly defined in the system: the inventor or designer of the service invention shall be rewarded, and after the implementation of the invention-creation patent, the inventor or designer shall be given reasonable remuneration according to the scope of its popularization and application and the economic benefits obtained. The unit may also agree on relevant matters by signing a special agreement with the inventor and designer. For those that are not agreed upon or stipulated in the rules and regulations, the inventor and designer may require bonuses and remuneration in accordance with Articles 77 and 78 of the Detailed Rules for the Implementation of the Patent Law. The legal standard for bonuses is: an invention patent The minimum bonus is not less than 3000 yuan; the minimum bonus for a utility model patent or design patent is not less than 1000 yuan. The legal standard of remuneration is: not less than 2% of the operating profit from the implementation of the invention or utility model patent or not less than 0.2 of the operating profit from the implementation of the design patent shall be withdrawn each year, and the inventor or designer shall be given as remuneration, or the inventor or designer shall be given a one-time remuneration with reference to the above proportion; the unit granted the patent permits other units or individuals to implement its patent, not less than 10 per cent of the royalties collected shall be paid to the inventor or designer as remuneration. (II) establish invention reporting system 1. Reporting time and reporter. Where a unit may require the inventor to complete an invention related to the business of the unit, it shall report to the unit within the specified time from the completion of the invention. Inventions made by two or more inventors shall be reported to the unit by all the inventors or their representatives. 2. The contents of the invention report. Including: the names of all inventors, the title and content of the invention, opinions and reasons on whether the invention is a service or non-service invention, and other matters that the unit or inventor deems necessary to explain. 3. Unit handling opinions. The unit shall give a written reply within the prescribed time after receiving the invention report; if the unit fails to reply within the aforementioned time limit, it shall be deemed to agree with the inventor's opinion. If a unit claims in its written reply that the reported non-service invention is a service invention, it shall state the reasons. If the inventor puts forward a written objection within the specified time after receiving the reply from the unit, the two parties may resolve it through consultation, request the patent administrative department for mediation, litigation or arbitration; if no objection is raised, it shall be deemed to agree with the opinion of the unit. 4. The processing procedure disclosed by the inventor without authorization. The unit may stipulate that the invention may not be disclosed without the unit's consent, nor may it apply for intellectual property rights or transfer them to a third party. (III) Strengthening the Turnover Management of Personnel Related to Job Invention According to Article 12 of the Regulations for the Implementation of the Patent Law, a patent applied for after leaving office constitutes an essential element of a service invention, and shall meet both the time and content requirements: 1. Time element: refers to the dispute patent after retirement, transfer from the original unit or labor, personnel relations terminated within 1 year. 2. Content elements: refers to the patent application in the original unit to undertake their own work or the original unit assigned tasks. For those who have mastered the patented technology and trade secrets of the unit, if they do not strengthen their resignation prevention measures, it is very likely to cause significant damage to the legitimate interests of the unit in the future. To this end, the employer may formulate a non-competition management system in accordance with the relevant provisions of the Labor Contract Law. Select the appropriate agreement method, either stipulate the non-competition clause in the labor contract, or sign a separate confidentiality agreement to reasonably determine the scope of the subject and the scope, region and duration of the competition. For example, it is agreed that the person with non-competition restrictions cannot go to other employers that have a competitive relationship with the production or operation of similar products and businesses of the unit, or start production or operation of similar products and businesses by themselves; it is important to note that the non-competition period should not exceed two years. If there is no agreement to give economic compensation to the laborer after the termination or termination of the labor contract, and the laborer has fulfilled the obligation of non-competition, the employer may be required to pay 30% of the average wage of the laborer in the 12 months before the termination or termination of the labor contract. Economic compensation (Note: If 30% of the average monthly wage is lower than the minimum wage standard of the place where the labor contract is performed, it shall be paid according to the minimum wage standard of the place where the labor contract). If the parties have agreed on non-competition and economic compensation in the labor contract or confidentiality agreement, and after the termination or termination of the labor contract, if the employer fails to pay economic compensation for three months, the employee may request the people's court to lift the non-competition agreement. Current situation of disputes over the right of duty patent in 3. In Weike's pre-legal information base, search for the cause of "patent right ownership dispute, patent application right ownership dispute" and search for the key words "invention-creation and resignation related to the job undertaken by the original unit or the tasks assigned by the original unit". A total of 574 cases were retrieved, of which 70 were from the Supreme People's Court, accounting for 12%; 223 higher people's courts, accounting for 39%; the Intermediate People's Court has 215 cases, accounting for 37%; from the focus of the dispute, the content of the dispute in the case is mainly judged by "relevance", that is, from the technical field to determine "relevance", from the technical characteristics to determine "relevance", from the technical field, the technical problems solved, and the technical means implemented to determine "relevance". For example, in the Supreme People's Court Guidance Case (2019), Li Jianyi, Supreme Court Minshen No. 6342, and the civil ruling on retrial review and trial supervision of patent right ownership disputes of Shenzhen Remote Intelligent Equipment Co., Ltd., the focus of the dispute is: the specific content of Li Jianyi's job or assignment during his tenure in Weibang Company, the specific situation of the patent involved and its relationship with Li Jianyi's job or assignment, etc, the court held that Li Jianyi, as the only inventor of the patent involved, applied for the patent involved in the case in his own name less than 3 months after leaving Weibang, and could not make a reasonable explanation of the technology research and development process or the source of the technology, which was not in line with common sense. In China's legislative practice, the unit to which the inventor or designer belongs directly owns the patent right of the service invention-creation, and the invention-creation completed by performing the task of the unit or mainly using the material and technical conditions of the unit is classified as the service invention-creation, which is the core standard to judge whether the invention-creation belongs to the service invention or the non-service invention. At the same time, the law also provides for the attribution of job inventions, the principle of autonomy, and the two parties agree to take precedence over the legal attribution of job inventions. Therefore, in order to avoid disputes over the ownership of patent application rights or patent rights, it is recommended that the inventor or designer and the employer make an agreement or system regulations to divide the ownership of the job invention involved, so as to avoid disputes over rights and cause litigation to both parties. Tired and heavy economic losses.

2021-12-21

Viewpoint | Research (I) on the Nature of Network Writing Agreement and Related Copyright Issues

Abstract: The difference between the creation and utilization of network literary works and traditional written works is not only the difference between carrier and media, but also the relevant business model is completely different from the beginning of network literature. Thus, the traditional system of copyright and neighboring rights, based on the balance of interests between authors and publishers, cannot achieve its legislative intent in this area. The various ways of dissemination and utilization of works, especially the development of derivatives, make the creation and value of works more dependent on the power of the network platform, and at the same time strengthen the dominant position of the network platform in the literary creation market. The nature of the agreement between the online literature platform and the author, and the legal relationship established by its nature, cannot be determined only by the wording of the agreement provisions, but should analyze the agreement provisions and the spirit of relevant legislation, and combine transaction habits and good faith Principles, define the essence of the legal relationship between the two parties, so as to determine the nature and validity of the agreement and its terms, and clarify the rights and obligations of both parties, and the assumption of external liability. This series of articles defines "online writing agreement" as an agreement between online literature authors and online literature platform operators on issues such as the creation, utilization, ownership and licensing of online works, and distribution of benefits. When literary creation entered the Internet age, the controversy over the distribution of interests between authors and communicators, which occurred hundreds of years ago, arose again. Regardless of form and content, history repeats itself in almost the same way. The difference is that the market power of publishers at the beginning came from feudal privileges [], while today's network operators come from the advantages of capital and resources. This "five-five break" incident [], which occurred in early May 2020, is an outbreak of this debate, which is caused by the dissatisfaction of the online author community with the online platform writing protocol. From the appearance of the object of rights, there is no obvious difference between network literary works and traditional written works, and the term "network" seems to only define a carrier and communication channel of these works. Therefore, it seems that the traditional theory of copyright can be used to deal with the related problems, supplemented by the new copyright system such as the right of information network dissemination. However, from the perspective of the creation and dissemination mode of network literature in recent years, this idea has been obviously inadequate. The traditional online literature creation platform mostly exists in the form of online literature community. The author publishes his works in special or comprehensive forums. The online platform only provides software support and extremely low level value-added services. However, from the current creation and dissemination of online literary works, the following model is basically adopted: the author and the online literature platform agree on the creation, ownership, and use of the work in the form of a contract, and publish the work to the online literature platform. The copyright and neighboring rights arising from the work are exercised by the platform and the work in accordance with the contractual agreement between the two parties, the most important of which is the ownership and licensing of the copyright, as well as the distribution of the proceeds arising from the dissemination of the work between the platform and the author. The dispute between the two sides also arises from the conclusion and performance of these contracts. On the surface, these contracts have not deviated from the theoretical and institutional framework of the classic civil law, contract law and copyright law, and there are no problems such as defects in meaning from the appearance. However, these contracts have led to complex disputes between many authors and platforms, and have spawned disputes about author rights protection, platform responsibilities, and overlord clauses. On the one hand, the author group believes that its legitimate rights and interests have been improperly deprived, and the platform uses its knowledge advantage and capital hegemony to squeeze the author's interests. [] On the other hand, in the process of spreading literary works on the Internet, the formation of the advantages of the network platform is both necessary and inevitable. How to balance the interests of both sides, protect the rights and interests of authors and communicators, and guide the healthy development of this new literary form is a problem that needs attention. This paper focuses on the contractual nature of online writing agreements and related legal issues. Network writing agreements are mostly nameless contracts, which appear in the form of listing the rights and obligations of both parties, and the actual legal relationship is often inconsistent with the wording of the contract. For example, some clauses appear in the form of "copyright license", but their essence almost constitutes the transfer of copyright. Some clauses define the work as "user-generated content (UGC)", but the platform's control over the work is much greater than this. Some clauses define the author's requirements for creation, the ownership of rights and obligations, and even make the two constitute a de facto labor or labor relationship. In addition, there are some contents in these contracts that are contrary to the copyright law and may be invalid. [] Therefore, this paper attempts to analyze the legal problems related to the copyright contract nature of the network literature platform, and tries to put forward a solution angle. The Difference between 1. Network Literature Creation and Related Traditional Formats The Combination of (I) Network Literature Creation and Traditional Publishing Mode The network literature industry has two ancestors, the first is the traditional book, newspaper and publishing industry, and the second is the traditional network literature creation existing in the online literature community. In the primary form of traditional online literature creation, works exist in the form of "user-generated content" (UGC). Authors publish works in special or comprehensive forums. Online platforms only provide software support and very low level value-added services. The result of the continuous development of this model is the emergence of a group of "writers" who specialize in network literature writing, and some network platforms have gradually evolved into specialized network service providers for the publication and operation of network literature. and began the exploration and innovation of a new business model. At this time, online literature entered the era of "professionally generated content" (PGC) and gradually formed an industry. At the same time, the relationship between the author and the online literature platform has also been transformed from a relatively loose and individual "user-service provider" model to a copyright licensing and transfer model, and a more complex and complex set of commercial creation and operation has been formed. system. [] With the development of these business models, the online literature platform finally entered the "professional production content" (OGC) model and formed an industry. Under the PGC and OGC models, online literature creation began to move closer to the business model of the traditional book publishing industry. The traditional publishing industry includes book publishing and newspaper publishing, which is mainly divided into two categories: submission and submission of manuscripts in terms of the order of completion of manuscripts and the formation of publishing agreements. Contributions are generally based on work that has already been completed. In addition to dealing with it in accordance with the relevant provisions of the copyright Law, in book publishing, the author and the publishing house generally sign a more detailed book publishing contract to agree on matters related to copyright and remuneration; in the case of newspapers and periodicals, the author's contribution means that he has agreed to the format contract determined by the newspaper agency in documents such as "instructions for soliciting manuscripts. In the case of manuscripts, newspapers and periodicals often sign a "special columnist cooperation agreement" with the author, which stipulates the frequency and content of the author's contribution in the form of contractual rights and obligations. The network writing protocol is generally used in a similar way to the above two. From the perspective of the current creation and dissemination of online literary works, the following model is basically adopted: the author and the online literature platform agree on the creation, ownership, and use of the work in the form of a contract, and publish the work to the online literature platform. The copyright and neighboring rights generated by the work are exercised by the platform and the work in accordance with the contract, and the income generated by the dissemination of the work, distribution between platform and author. The Payment and Profit Model Innovation of (II) Network Literature Creation In the initial stage of network literature creation, the profit model of the network platform is relatively simple, and its basic mode of operation is to provide free publishing and reading services to authors and readers as a network service provider (ISP). [] In this model, there is no clear boundary between the author and the reader, and the revenue of the website platform mostly comes from advertising revenue and derivatives revenue, while some more mature websites may charge users a fee and provide some limited value-added services. In the traditional publishing industry, there are generally three ways for publishers to pay authors:[] Newspapers and periodicals generally adopt a one-time payment model, which is generally based on the number of words, while book publishing generally has two types of remuneration system and royalty system. The for-profit model of publishers generally adopts two parallel methods, one is to sell for profit, that is, to sell printed copies of books, as well as to distribute newspapers and periodicals, and the other is to rely on the reputation of the publication itself, such as advertising revenue, service provision or brand operation. [] In addition, there is the self-funded publishing model of books, which is not discussed in this article. After entering the era of PGC and OGC, the profit-making model adopted by the online literature platform is basically the product of the integration and development of the traditional publishing industry and the profit-making model of UGC websites. Literary websites generally use a paid reading model or a free reading model, or a combination of the two. [] There are mainly two types of paid reading. One is the individual paid reading mode, that is, readers pay individually to obtain the reading rights of a specific work or the works of a specific author, which is equivalent to "buying" a certain work. The other mode is the membership fee mode, that is, the platform sets all or part of the article or some chapters of the article as non-open reading rights, users get a package of reading rights for a certain period of time by paying a regular fee. In the free reading model, the platform continues the UGC era, with advertising revenue or derivatives development-based for-profit methods. The innovation of the profit-making mode of the network platform has led to the change of the distribution of interests between the platform and the author, which has led to some debates. Under the single-read payment model, the platform side will generally derive its income from a single article or author, and after deducting the necessary operating costs, it will share with the author, and the dispute is generally limited to different opinions on the share ratio. However, under the membership fee mode and free mode, since the income of the website does not point to a specific author or work, its income distribution method has become the focus of the fierce dispute between the two sides,[] which is also one of the causes and focuses of the "five-five break-off" incident. [1] Wu Handong. Research on the basic issues of intellectual property rights (sub-thesis)[M]. Beijing: China Renmin University Press. 2005. Sub-thesis [2] Chen Qian. Read the "55 break more section" truth: the net text has changed, the chariot changed the string to open a new war [EB/OL].http://finance.sina.com.cn/wm -05-18/doc-iirczymk2231906.shtml,2020-May 18, 2020. [3] Kexin Wenchuang. If there is no skin, how can Mao attach it? From the "hegemonic contract" to talk about whether the online platform should harvest the author [EB/OL]. https://www.jianshu.com/p/cba46aa303a3,2020年05月18日. [4] Jia Yinshi, Lin Xiuqin. The rise and response of copyright license format contract in the Internet environment [J]. Journal of Dalian University of Technology (Social Science Edition),2019,40(06):74-80. [5] Wang Haitao, Ren Yuanyuan. Professional content producers are never "sunset people" -- Discussion on "traditional writers face professional survival crisis" [J]. China Publishing, 2016(19):23-25. [6] Liu Sai, Ge Hongbing. Five Trends in the Development of Network Literature: Observation on the Creation and Publication of Network Literature in 2019 [J]. China Book Review, 2020(01):52-66. [7] Zhang Huibin, Wu Yunshi. Changes of Author's Remuneration System in New China: Process, Motivation and Enlightenment [J]. Publishing Science, 2019,27(04):24-32. [8] Ye Lu (Editor-in-Chief of Shanghai Translation Publishing House). Six Paths to Innovation of Publishing Business Model [N]. China Book Business Daily, 2006-03-24(006). [9] Zhu Wei. Free ecology of online literature is the trend [N]. Procuratorial Daily, 2020-05-13(007). [10] Book opening is appropriate. Behind the boycott of the author: is the new contract infringing and is there a future for free reading [EB/OL].https://www.thepaper.cn/newsDetail_forward_7289350,2020年5月20日.

2021-12-21

Corporate Litigation Study... Corporate litigation rules of the company's capital reduction dispute.

Foreword The company's capital reduction dispute refers to the civil dispute caused by the company's reduction of registered capital in violation of legal procedures and conditions, which harms the interests of the company's shareholders or creditors. Capital reduction disputes are mainly divided into several categories: 1. Company shareholders file a lawsuit to confirm that the company's capital reduction is invalid or cancel the company's capital reduction resolution, which belongs to the company resolution dispute in the company dispute; 2. Company creditors file a lawsuit to require the company to pay off its debts or provide corresponding guarantee, which belongs to other disputes in the commercial field; 3. Due to the illegal capital reduction procedure, the company's creditors sued the capital reduction shareholders to assume supplementary liability for the company's debts within the scope of the capital reduction, and this type of dispute is a typical capital reduction dispute. By combing the relevant laws, supplemented by typical cases, this paper tries to clarify the relevant legal provisions and judicial rules for reference. 1. related regulations (I) related laws 1. the People's Republic of China Civil Procedure Law Article 26 Litigation arising from disputes over the establishment of a company, confirmation of shareholder qualifications, distribution of profits, dissolution, etc., shall be under the jurisdiction of the people's court of the place where the company is domiciled. 2. Company Law of the People's Republic of China Article 177 When a company needs to reduce its registered capital, it must prepare a balance sheet and an inventory of its property. The company shall notify the creditors within 10 days from the date of making the resolution to reduce the registered capital, and make a public announcement in the newspaper within 30 days. The creditor shall have the right to require the company to pay off its debts or provide corresponding guarantee within 30 days from the date of receipt of the notice, or within 45 days from the date of announcement if the notice is not received. (II) judicial interpretation 1. Circular of the Supreme People's Court of China, on Printing and Issuing the Revised Provisions on the Cause of Action in Civil Cases (2011) 21. Disputes related to the company 281. Company capital reduction dispute 2. Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law Article 3 The domicile of a citizen refers to the place where the citizen's household registration is located, and the domicile of a legal person or other organization refers to the place where the main office of the legal person or other organization is located. If the location of the principal office of a legal person or other organization cannot be determined, the place of registration or registration of the legal person or other organization shall be the place of domicile. Article 22 Jurisdiction shall be determined in accordance with the provisions of Article 26 of the Civil Procedure Law for lawsuits arising from disputes over records in the register of shareholders, requests for changes in company registration, shareholders' right to know, company resolutions, company mergers, company division, company capital reduction, company capital increase, etc. 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 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. Article 14 Where a shareholder withdraws his capital contribution, the people's court shall support the request of the company or other shareholders to return the principal and interest of the capital contribution to the company, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contribution shall bear joint and several liability for this. The people's court shall support the shareholders who request the withdrawal of capital contributions to bear supplementary liability for the unpayable part of the company's debts within the scope of the principal and interest of the withdrawal of capital contributions, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contributions shall bear joint and several liability for this. The people's court shall not support the shareholders who have already assumed the above-mentioned responsibilities and other creditors make the same request. Minutes of the (III) National Civil and Commercial Trial Conference Notice of the Supreme People's Court on Issuing the Minutes of the National Courts Conference on Civil and Commercial Trials (Law [2019] No. 254) 2. on the trial of company dispute cases (I) on the validity and performance of the "gambling agreement". 5. ["Gambling" with the target company] If the "gambling agreement" concluded between the investor and the target company does not have any statutory reasons for invalidity, if the target company claims that the "gambling agreement" is invalid only on the grounds of the existence of equity repurchase or monetary compensation agreement, the people's court will not support it, but the investor claims that it is actually performed, the people's court shall examine whether it complies with the mandatory provisions of the Company Law on "shareholders shall not withdraw their capital contributions" and share repurchase, and whether the judgment supports their claims. If the investor requests the target company to buy back its shares, the people's court shall examine it in accordance with the mandatory provisions of Article 35 of the Company Law on "shareholders may not withdraw their capital contributions" or Article 142 on share repurchase. After examination, if the target company has not completed the capital reduction procedure, the people's court shall reject its claim. If the investor requests the target company to assume the obligation of monetary compensation, the people's court shall conduct a review in accordance with the mandatory provisions of Article 35 of the Company Law on "shareholders may not withdraw their capital contributions" and Article 166 on profit distribution. If, after examination, the target company has no profit or is not profitable enough to compensate the investor, the people's court shall reject or partially support its claim. In the future, when the target company has profits, the investor may also file a separate lawsuit based on that fact. Provisions issued by regional courts in (IV) 1. Guiding Opinions of the Higher People's Court of Jiangxi Province on Several Issues Concerning the Trial of Cases of Company Disputes (2008 No. 4) On the Dispute of 2. Shareholder's Capital Contribution 12. When the company is established, if the promoter falsely contributes capital, the other promoters shall bear joint and several liability for the payment. This liability is not waived by the transfer of equity by other promoters. If a shareholder withdraws his capital contribution, the shareholders, directors, managers and other senior management personnel who help to withdraw their capital contribution shall be jointly and severally liable. When the company increases its capital, if the shareholders make false capital contributions, the responsible shareholders, directors, managers and other senior managers shall bear joint and several liability. After the responsible person stipulated in the above three paragraphs has assumed responsibility, he may recover the compensation from the promoter or shareholder of the defective capital contribution, or he may demand from other jointly and severally responsible persons to pay off his share. 18. If the company fails to notify the creditors in accordance with the provisions of Article 178 of the Company Law, or fails to pay off the debts or provide corresponding guarantees in accordance with the requirements of the creditors, the company's creditors may require the shareholders to recover their respective capital contributions. Within the scope of the company's debts before the capital reduction, it shall jointly and severally bear supplementary liability for compensation. 2. Guidelines for the Judgment of the Second Civil Division of the Higher People's Court of Guangxi Zhuang Autonomous Region on Several Issues Concerning the Trial of Company Dispute Cases (Guigao Fa Min II [2020] No. 19) The effectiveness of the capital system of 1. companies. 2. [Capital Maintenance in Shareholder Withdrawal] Shareholder withdrawal involves the withdrawal of capital contribution and further the reduction of the company's capital. Therefore, based on the protection of creditors' interests, the company's capital system places certain restrictions on shareholder withdrawal:(1) Shareholders agree to withdraw their shares through the resolution of the company's shareholders' meeting, or withdraw their shares through claiming the right of repurchase of dissenting shareholders (Article 74 of the Company Law), the interests of creditors of the company shall be protected through legal capital reduction procedures (Article 177 of the Company Law);(2) If shareholders withdraw their shares through dissolution of the company, they shall protect the interests of creditors of the company through legal liquidation procedures (Article 183 of the Company Law);(3) Shareholders withdraw from the company by transferring all their shares, which does not involve the reduction of the company's capital and is not subject to the company's capital control, however, if the transferring shareholder transfers the equity without making a full capital contribution, he still bears the obligation to make up the capital contribution (Article 18 of Interpretation III of the Company Law). 2. the legal effect of the articles of association Review of the validity of 9. gambling agreements. 45. [Nature of Repurchase Clause] If the gambling agreement mode is adopted in the equity transfer transaction, the repurchase clause is usually set to withdraw the investment, I .e. to recover the "loan" or "financing fund". The people's court shall conduct a review at the level of the company's capital system, I .e. whether the repurchase complies with the statutory capital reduction procedure, so as to ensure that the interests of all parties behind the withdrawal of capital contribution or recovery of "financing fund" are fairly protected. However, if the investor requests the target company to repurchase its shares and at the same time appeals to the target company to perform the capital reduction procedure, the people's court will not support it because the company's capital reduction procedure is a matter of corporate autonomy and the judiciary will not intervene. Overview of 2. Litigation Plaintiff: Creditor Defendant: All or part of the shareholders (according to: Articles 13 and 14 of the (III) on Several Issues Concerning the Application of the the People's Republic of China Company Law of the People's Republic of China by the Supreme People's Court) Jurisdiction: under the jurisdiction of the people's court of the company's domicile (based on Article 26 of the Civil Procedure Law and Article 22 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law) Litigation request: 1. Request to order the defendant x x x to bear supplementary liability for the part of x x company's debt that cannot be paid off by the plaintiff within the scope of the capital reduction of x x yuan; 2, the case acceptance fee, preservation fee and other litigation costs are borne by the defendant. 3. Disputes and Judgment Rules (I) Controversial Question 1: Is the nature of capital reduction in violation of legal procedures equivalent to the withdrawal of capital contributions? Are shareholders liable for the withdrawal of capital contributions? The judgment case of Shanghai Delixi Group Co., Ltd. v. Jiangsu Boenshitong High-tech Co., Ltd., Feng Jun and Shanghai Boenshitong Optics Co., Ltd. in the 11th issue of the Bulletin of the Supreme People's Court in 2017 equated the nature of illegal capital reduction with the withdrawal of capital contribution. The Supreme Court heard the dispute over the loan contract between Anhui Xinji Coal and Electricity (Group) Co., Ltd., Rudong County Rural Credit Cooperative Association and Shanghai Hengde Zhidi Co., Ltd. [(2010) Min Ti Zi No. 79], the Supreme Court clearly put forward this point of view for the first time. There are different views that illegal capital reduction is equivalent to the nature of capital withdrawal, which will inappropriately expand the scope of liability, and will extend the scope of liability to other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital, and will improperly amplify the "harmfulness" of illegal capital reduction, Because in civil cases, it may involve the crime of withdrawing capital in criminal cases. Case 1: Shanghai Delixi Group Co., Ltd. v. Jiangsu Boen Shitong High-tech Co., Ltd., Feng Jun and Shanghai Boen Shitong Optics Co., Ltd. Case of Dispute over Purchase and Sales Contracts [Supreme Court Gazette Case 2016 Hu 02 Min Zhong No. 10330]] The court held that the shareholders of Jiangsu Boen Company formed resolutions of the shareholders' meeting on August 10 and September 27, 2012 on the reduction of the company's capital. At this time, the creditor's rights of Delixi Company had already been formed. As shareholders of Jiangsu Boen Company, Shanghai Boen Company and Feng Jun should know clearly. However, in this case, Shanghai Boen Company and Feng Jun still agreed to Feng Jun's request for capital reduction through the resolution of the shareholders' meeting, and did not directly notify Delixi Company, which not only damaged the solvency of Jiangsu Boen Company, but also infringed on the claims of Delixi Company, and should bear corresponding legal liability for the debts of Jiangsu Boen Company. When the company fails to notify known creditors of a capital reduction, the situation is not essentially different from the substance of the shareholder's illegal withdrawal of capital and the effect on the damage to the creditors' interests. Therefore, although our law does not specify the liability of shareholders in the event of damage to the interests of creditors as a result of a company's failure to comply with the statutory procedures for capital reduction, it can be determined by reference to the relevant principles and provisions of the company law. Due to the defects in the capital reduction behavior of Jiangsu Boen Company, the company's claims formed before the capital reduction cannot be paid off after the capital reduction, Shanghai Boen Company and Feng Jun, as shareholders of Jiangsu Boen Company, shall bear supplementary liability for the non-payment of the debts of Jiangsu Boen Company within the scope of the amount of the company's capital reduction. Case 2: Dispute over Loan Contract between Anhui Xinji Coal and Electricity (Group) Co., Ltd. and Rudong County Rural Credit Cooperative Association and Shanghai Hengde Real Estate Co., Ltd. [(Supreme People's Court (2010) Min ti Zi No. 79)]] The court held that: therefore, the withdrawal of the coal power company from Hengde company violated the legal procedure of capital reduction, which should be recognized as the name of capital reduction, which is actually the nature of capital withdrawal, and the coal power company should bear joint and several liability for the guaranteed debts of Hengde company within the scope of its capital contribution of 25 million yuan. Case 3: Xiangtan Dahan Iron and Steel Trading Co., Ltd. and Hu Zhi and Liang Shuai Company's Capital Reduction Dispute heard by Xiangtan Intermediate People's Court [(2014) Tan Zhongmin Erchu Zi No. 20]] The court held that: Jinrong Company did not notify the known creditor Dahan Company when reducing its capital, resulting in Dahan Company not knowing about its capital reduction, nor could it ask it to pay off its debts or provide guarantees in advance, the capital reduction procedure was flawed and had no legal effect on Dahan Company. Although the company law stipulates that the notice obligor when the company is reducing its capital is the company, the company's capital reduction is the result of the resolution of the shareholders' meeting, and whether and how to reduce the capital depends entirely on the will of the shareholders. As the shareholders of Jinrong Company, Hu Zhi and Liang Shuai still reduced the company's registered capital through the resolution of the shareholders' meeting even though they knew that the company's external liabilities had not been paid off. Subjectively, there was a fault, which objectively damaged the solvency of Jinrong Company and endangered the realization of the creditor's rights of Dahan Company. In essence, it caused the same consequences as the withdrawal of capital contribution, therefore, we should refer to the second paragraph of Article 14 of the "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Law". The people's court shall support the shareholders who request the company's creditors to withdraw their capital contributions to bear supplementary compensation for the unpayable part of the company's debts within the scope of the principal and interest of the withdrawal of capital contributions, and other shareholders, directors, senior managers or actual controllers who assist in withdrawing capital contributions shall bear joint and several liability for this; the shareholders who have withdrawn their capital contributions have already assumed the above-mentioned responsibilities. If other creditors make the same request, the people's court will not support the "treatment, I .e. the defendants Hu Zhi and Liang Shuai shall, within the scope of capital reduction, bear supplementary compensation liability for the payment obligations of Jin Rong Company as determined in the civil mediation document No. 43 of Tanzhong Min Er Chu Zi of our hospital (2012). Case 4: Cai Ruixian et al. v. Shanghai Yongdian Garment Technology Co., Ltd. Shareholder's Capital Contribution Dispute [(2014) Hu Yi Zhong Min Si (Shang) Zhong Zi No. 462]] The court held that, according to the provisions of the current company law, shareholders have the obligation to effectively perform their capital contributions in accordance with the articles of association of the company, and at the same time have the responsibility to maintain the company's registered capital. The company's capital reduction should be subject to legal procedures in accordance with the law to ensure that the company's creditors have the opportunity to make corresponding decisions before the company's assets are reduced.

2021-12-20

Zhongcheng Qingtai. Real estate perspective: how to judge the nature of developers to promote school district housing behavior?

1. issues raised In order to improve the subsidiary value and attractiveness of the development of real estate, more and more developers choose to take "XX school district housing" and "gathering XX school" as the highlights of house sales promotion. However, the general commercial housing is mostly short-term housing, and the supporting construction is not synchronized with the delivery of housing, there is the possibility that the school district will fail or be inconsistent with the publicity. Article 473, paragraph 2, of the Civil Code clearly states that "commercial advertisements and publicity that meet the conditions for an offer constitute an offer." Does the developer's behavior of publicizing the school district housing constitute an offer? Does the publicized school have any influence on determining whether the developer constitutes a breach of contract within the scope of the commercial housing development plan? How should the developer and consumers avoid the possible risks brought by the school district housing publicity? 2.-related views and cases, refereeing views (I) the developer's publicity on the school district housing has a significant impact on whether the buyer enters into a commercial housing sales contract with him. The publicity color page should be regarded as the content of the contract and is binding on both parties to the contract. The house involved in the case is not in the school district, which is inconsistent with the contract agreement, resulting in the buyer's contract purpose cannot be realized, and the buyer can request to terminate the contract. Case: Cheng Juan and Chen Baoyin's Dispute over Housing Sales Contract (Heze Intermediate People's Court (2020) Lu 17 Civil Judgment No. 1331) The court held that the focus of the dispute in this case is whether the contract for the sale of the house involved should be terminated. First of all, Article 3 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes" stipulates: "Commercial housing sales advertisements and promotional materials are invitations to offer, but the seller's housing and related within the scope of the commercial housing development plan If the explanation and promise made by the facility are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, it shall be regarded as an offer. Even if the statement and promise are not included in the contract for the sale of commercial housing, they shall be regarded as the content of the contract, and if the parties violate it, they shall bear the liability for breach of contract." The publicity color page of the appellant Hejian Real Estate Company clearly indicates the words "live in Hejian Zijun City and study in Boyu Middle School". Dong Bowen, the daughter of the appellant Cheng Juan, is in high school. Such publicity by the appellant Hejian Real Estate Company has a significant impact on whether Cheng Juan and Chen Baoyin enter into a commercial housing sales contract with them. Therefore, the publicity color page should be regarded as the content of the contract and binding on both parties to the contract. At present, the house involved in the case is not in the enrollment area of Boyu Middle School in Cao County, which is inconsistent with the contract agreement. As a result, the contract purpose of Cheng Juan and Chen Baoyin cannot be realized. Therefore, the appellants Cheng Juan and Chen Baoyin's request to terminate the commercial housing sales contract involved in the case is based on the law, and the court supports it. If the description and promise made by the (II) developer on the housing and related facilities within the scope of the commercial housing development plan are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, it shall be regarded as an offer, even if it is not included in the commercial housing sales contract, It should also be regarded as the content of the contract. Case: Wang Xinxin, Liu Shangneng and Suzhou New High Land Co., Ltd. Commercial Housing Sales Contract Dispute (Jiangsu Suzhou huqiu district People's Court (2018) Su 0505 Minchu No. 3012 Civil Judgment) The court held that:... the defendant repeatedly mentioned "double school district", "the third middle school of the new district and the experimental middle school of science and technology city", "double school district guarantee", "easy to choose a house but difficult to choose a school", "double school district, experimental middle school" and other contents in the pavement and billboards, website publicity materials and WeChat promotion platform of Hongjinwan real estate, according to the above sales advertisements and publicity materials, ordinary buyers can naturally draw the conclusion that the house involved in the case belongs to the school district of Science and Technology City Experimental Middle School (Science and Technology City Branch of New District Experimental Middle School) and their children can study in the school, which will have an important impact on whether to buy the house involved in the case and the determination of the price of the house involved. Therefore, it should be regarded as an offer, even if both parties fail to include the defendant's publicity and promise about the school district in the Commercial Housing Purchase Contract. However, this content shall also be an integral part of the contract and both parties shall be bound by it. According to the relevant documents of the education department of Suzhou City and the High-tech Zone on the division of the school district, the house involved does not belong to the school district of the New District Experimental Middle School Science and Technology City Branch, but belongs to the school district of the New District No. 3 Middle School, so the defendant violated the contract and constituted a breach of contract., Should bear the liability for breach of contract. Real estate belongs to the family's large property, its primary function is to live. Buyers who buy houses in order to choose school districts are different from ordinary buyers. They have reason to believe that they have a deeper understanding of local school district policies, and they should be more cautious than ordinary buyers. Therefore, the choice of the school district is not the contractual purpose of the contract for the sale of the house in this case, and the plaintiff made the decision to purchase the house involved due to negligence and recklessness, and he himself was quite at fault. In view of the fact that the plaintiff did not provide any evidence to prove the price difference between the house involved in the case and the surrounding non-key school district houses in the same location and the same quality at the time of purchase, and the appraisal application for similar cases in the same district was also returned due to the incomparable sample, there is no evidence to prove the loss of the house price difference claimed by the plaintiff. However, the defendant's improper publicity constituted a breach of contract, which caused the dispute in this case. The court considered the fault degree of both parties and the performance of the contract, and decided to compensate the plaintiff for the loss of 10000 yuan. As for the agreement between the two parties in annex 5 to the contract: article 2 of the supplementary agreement to the contract, the court believes that the above agreement, as a standard clause provided by the seller, does not formally prompt and explain the plaintiff in a way sufficient to attract the attention of the buyer. the content excludes the buyer's main rights and exempts itself from its own obligations, thus it is invalid. (III) the school is outside the scope of the housing development plan involved in the case, the supplementary agreement clearly stipulates that the promotion of commercial housing does not constitute a contract offer, the buyer fully understands the terms of the contract when the contract is signed, and the developer does not constitute a breach of contract. Case: Li Shougang's Dispute over Commercial Housing Sales Contract with Jinan Yuantai Real Estate Co., Ltd. and Shandong Beida Resources Real Estate Co., Ltd. (Jinan Intermediate People's Court (2017) Lu 01 Min Zhong No. 5484 Civil Judgment) The court held that the "Notice" issued by Peking University Resources Company... was not included in the commercial housing sales contract, and the seventh paragraph of Article 17 of the contract stipulates that "the sand table, model, model room, publicity materials and publicity advertisements displayed by the seller are only for promotion indication, and do not constitute any offer. All agreements in this contract shall prevail, and the delivery entity shall prevail if there is no agreement in this contract", therefore, the contents of the above notice cannot be regarded as the contents of the contract. Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Contracts for the Sale of Commercial Housing stipulates that ...... the "housing and related facilities" referred to in this provision are "within the scope of the planning for the development of commercial housing", while the school referred to in the Notice does not fall within the scope of the planning for the development of the housing involved, so the provisions of the judicial interpretation cannot be applied to this case. In the case that the content of the school district housing in the "Notice" was not included in the commercial housing sales contract, Li Shougang claimed the relevant liability for breach of contract based on the content. There was no basis in the law, and the first instance did not support it, which was not improper. (IV) the school has changed due to planning adjustment, it is still equipped with corresponding educational resources. The occurrence of this fact is related to the corresponding planning adjustment of the local government. The developer's publicity about the school district housing is not false publicity and does not constitute a breach of contract. Case: Wu Kouzhu, Miao Yamin and Ocean Real Estate Zhenjiang Co., Ltd. Commercial Housing Sales Contract Dispute (Jiangsu Higher People's Court (2017) Su Minshen No. 957 Civil Judgment) The court held that there was a primary school originally planned in the third phase plot of Sino-Ocean Company, but according to the planning adjustment of Zhenjiang City Planning Committee, it was decided that the primary school and the junior high school reserved in the resettlement house on the east side of the third phase plot of Sino-Ocean Company should be merged into a nine-year consistent school. ... Even if it is confirmed that the introduction of the propaganda of Runzhou Experimental Primary School by Ocean Company is indeed an offer, the original primary school is changed to a nine-year consistent school due to planning adjustment, and the teachers are arranged by the Education Bureau of Runzhou District, Zhenjiang Experimental School and Runzhou Experimental Primary School as a whole, and they are still equipped with corresponding educational resources, and the school actually built is changed from a primary school to a nine-year consistent school, which is related to a consistent school. Therefore, the 1. Court of Second Instance did not support Wu Kaozhu and Miao Yamin's claim that the Ocean Company "introduced Runzhou Experimental Primary School" as false propaganda, which constituted a breach of contract and also constituted fraud. 3. Summary Article 472 of the Civil Code provides for the definition and constituent elements of an offer, and article 473, paragraph 2, provides that "if the content of commercial advertisements and publicity meets the conditions of an offer, it constitutes an offer." Article 3 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of disputes over commercial housing sales contracts stipulates that "the sales advertisements and publicity materials of commercial housing are invitation to offer, but the seller's explanation and promise on the housing and related facilities within the scope of the commercial housing development plan are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, It constitutes an offer. The statement and promise, even if it is not included in the contract for the sale of commercial housing, shall be the content of the contract, and if the parties violate it, they shall bear the liability for breach of contract." Whether the developer's behavior of publicizing the school district housing constitutes an offer is the key to judging whether the developer is in breach of contract and whether the contract for the sale of commercial housing can be terminated. One point of view is that commercial housing and related facilities generally include commercial housing itself and the supporting infrastructure and public buildings of commercial housing. Schools are not within the scope of commercial housing development planning. Supporting schools are decided by the local government's corresponding planning and adjustment, and are not based on the will of the developer. The relevant commercial housing sales contract also clearly stipulates that the content of the contract shall prevail. There is no guarantee about the school in the contract. The publicity of the school district housing cannot constitute an offer, there is no possibility of default by the developer; however, if the school is indeed within the scope of the commercial housing development plan, the school advertised by the developer does not exist or is different from the school actually attended, there is a risk of being identified as an offer and constituting a default. Another point of view is that there are transportation, schools, hospitals and other supporting facilities around the house, and the school should belong to the relevant facilities within the scope of the commercial housing development plan. The promise made by the publicity is clear and definite, and the publicity of xx school has an important impact on whether the buyers conclude the commercial housing sales contract and the determination of the housing price. The publicity of the school district housing constitutes an offer, and the failure or change of the school district leads to the developer to breach of contract, should bear the liability for compensation, the circumstances are serious so that the buyer can not achieve the purpose of school may have the risk of termination of the contract. In practice, local courts have slightly different criteria for judging whether the developer's publicity of the school district house constitutes an offer, which needs to be judged in combination with the actual situation of the case. Even if most courts determine that the developer's publicity of the school district house constitutes an offer, the inconsistency between the school and the publicity when the house is actually delivered constitutes a breach of contract. In most cases, the breach of contract has not reached the level of termination of the contract, but the developer should bear certain liability. 4. Risk Alert Our lawyers believe that developers should raise their risk awareness when promoting commercial housing, carefully carry out advertising activities, avoid misleading publicity, and clearly mark the behavior as an invitation to offer in publicity materials such as leaflets and advertising walls, and the actual commercial housing sales contract signed by both parties shall prevail. In addition, because the commercial housing sales contract is a standard contract provided by the developer, there is a risk that individual clauses will be recognized as standard clauses, the important terms can be prompted and explained in a way that is sufficient to attract the attention of the buyer, and the buyer can be fully explained when signing the contract, and it is clear that "if the agreement in the commercial housing sales contract is inconsistent with the advertising agreement, the agreement in the sales contract shall prevail". As an important asset of the family, consumers should exercise prudent care when buying a house, have an in-depth understanding of the local school district policy, and avoid taking losses due to negligence and rash decisions to buy a house.

2021-12-20

Viewpoint | Analysis of the reliability of patent protection

It is generally believed that the value of patent rights includes legal value, technical value and economic value. The reliability of patent protection is an important index to evaluate and analyze the legal value of patent. The so-called reliability of patent protection refers to the reliability of the patentee or patent user in the face of the suspected infringing object, using the current infringement determination rules to determine whether the suspected infringing object falls into the scope of specific patent protection. Through the analysis of the stability of the specific patent itself and the restriction degree of the following patent, the probability of a specific patent winning a patent infringement lawsuit is judged. This paper will start with the writing quality of the claims and instructions to analyze the reliability of patent protection, so it is only applicable to inventions or utility models, not design. The author thinks that the reliability of patent protection can be analyzed comprehensively from the five dimensions of patent category, patent text quality, restriction degree of implementation, restriction degree of following patent and stability, so as to draw a more objective expectation judgment on whether infringement is established in patent infringement litigation. 1. patent category According to China's current patent examination and authorization rules, utility model patents can be authorized only through formal examination, while invention patents can only be authorized after passing formal examination and passing substantive examination. Therefore, the stability of a particular patent can be judged by the type of patent and the nature of the invention, and it is clear that the stability of the invention patent is higher than that of the utility model patent. In addition, starting with the layout of the claims, the independent claim is a product claim and has more subordinate claims, which is better than only one product claim, and then better than only the method claim. 2. patent text quality The consideration of the quality of the patent text should include at least the following three aspects: first, the writing quality of the independent claims; second, the layout and writing quality of the dependent claims; third, the clarity and completeness of the patent specification and the support for the claims. An ideal authorized patent should meet all the following conditions:(1) the patent specification provides a clear and complete description of the invention and creation, and the embodiments are specific, to the extent that can be realized by those skilled in the art in combination with the accompanying drawings;(2) The independent claims are supported by the specification, with clear expressions and appropriate generalizations;(3) The subordinate claims are reasonably arranged and have a considerable number of subordinate claims;(4) There is no case where the amendment provided for in Article 33 of the Patent Law exceeds the scope. Obviously, if a patent deviates more and more negatively from the above conditions, the text quality will be worse. Constraints on 3. implementation The purpose of this indicator is to analyze whether a specific patented technical solution falls within the scope of protection of the prior patent, and if so, the implementation of the specific patent requires the permission of the prior patentee, otherwise the prior patent will be infringed. In the specific judgment method, after searching, compare a particular patent with a closest prior patent, determine the degree of overlap with the prior patent independent claim, and determine whether the two constitute equivalent if there is a difference in technical characteristics. Obviously, if there is a substantial difference between a particular patent and the nearest prior patent, and the technical characteristics of the independent claim are significantly different, then the particular patent can be implemented independently and is not subject to the surviving patent, which is the best. If a particular patent is subject to a prior patent, but the prior patent clearly has a flaw that has been declared invalid or if the particular patent has room to avoid the prior patent, it is an intermediate result. If a particular patent falls within the scope of prior patent protection and lacks substantive characteristics relative to the prior patent, it is a poor result. 4. degree of restriction on following patents This indicator is used to determine the degree of restriction of a particular patent on the implementation of a subsequent follow-up improvement technology, I .e., the probability of a subsequent follow-up technology avoiding a particular patent infringement. In the specific method, compare the specific patent with the following patent, and analyze whether the specific patent can effectively restrict the independent implementation of the following patent relative to the specific patent. Obviously, it is best if the follow-up patent is not retrieved, or if the follow-up patent falls unquestionably within the scope of protection of a particular patent. If, although there are different technical characteristics between the following patent and the specific patent, there is no substantial difference, that is, the following patent has a high probability of falling into the scope of protection of the specific patent, is also a better result. If the follow-up patent does not fall within the scope of protection of the particular patent, I .e. the follow-up patent can be implemented freely without the restriction of the particular patent, then the value of the particular patent will be diminished. 5. stability This indicator is used to determine the possibility of invalidation of a particular patent. Compare the specific patent with the existing technology before the filing date, and determine whether the specific patent has the risk of being declared invalid as stipulated in Article 65 of the Regulations of the Patent Law. Under this index system, the stability of patents with more distinguishing technical features is higher than that of patents with less distinguishing technical features. If a particular patent independent claim has more distinguishing technical features that are materially different from the combination of more than one prior art, then the probability of that particular patent being declared invalid is small and optimal. If a particular patent independent claim has few or no distinguishing technical features that differ materially from a combination of prior art within 3 articles, then the probability that the particular patent will be invalidated is high and is a poor result. If a particular patent independent claim has several distinguishing technical features compared with the combination of 3 or so existing technologies, but it is doubtful whether the distinguishing technical feature is a replacement of customary technical means, then the probability of the particular patent being declared invalid is in the middle. To sum up, according to the relevant provisions of China's Patent Law, Detailed Rules for the Implementation of the Patent Law and Patent Examination Guidelines, the author takes the quality of patent text as the main line, combines the characteristics of invention or utility model patents, and discusses the reliability of patent protection from five aspects: patent category, patent text quality, restriction degree of patent implementation, restriction degree of patent to follow patent, and stability of patent, the legal restriction effect of specific patented technology on the related technology in the same technical field is given objectively, and the result probability of infringement litigation is expected. It is generally believed that the value of patent rights includes legal value, technical value and economic value. The reliability of patent protection is an important index to evaluate and analyze the legal value of patent. The so-called reliability of patent protection refers to the reliability of the patentee or patent user in the face of the suspected infringing object, using the current infringement determination rules to determine whether the suspected infringing object falls into the scope of specific patent protection. Through the analysis of the stability of the specific patent itself and the restriction degree of the following patent, the probability of a specific patent winning a patent infringement lawsuit is judged. This paper will start with the writing quality of the claims and instructions to analyze the reliability of patent protection, so it is only applicable to inventions or utility models, not design. The author thinks that the reliability of patent protection can be analyzed comprehensively from the five dimensions of patent category, patent text quality, restriction degree of implementation, restriction degree of following patent and stability, so as to draw a more objective expectation judgment on whether infringement is established in patent infringement litigation. 1. patent category According to China's current patent examination and authorization rules, utility model patents can be authorized only through formal examination, while invention patents can only be authorized after passing formal examination and passing substantive examination. Therefore, the stability of a particular patent can be judged by the type of patent and the nature of the invention, and it is clear that the stability of the invention patent is higher than that of the utility model patent. In addition, starting with the layout of the claims, the independent claim is a product claim and has more subordinate claims, which is better than only one product claim, and then better than only the method claim. 2. patent text quality The consideration of the quality of the patent text should include at least the following three aspects: first, the writing quality of the independent claims; second, the layout and writing quality of the dependent claims; third, the clarity and completeness of the patent specification and the support for the claims. An ideal authorized patent should meet all the following conditions:(1) the patent specification provides a clear and complete description of the invention and creation, and the embodiments are specific, to the extent that can be realized by those skilled in the art in combination with the accompanying drawings;(2) The independent claims are supported by the specification, with clear expressions and appropriate generalizations;(3) The subordinate claims are reasonably arranged and have a considerable number of subordinate claims;(4) There is no case where the amendment provided for in Article 33 of the Patent Law exceeds the scope. Obviously, if a patent deviates more and more negatively from the above conditions, the text quality will be worse. Constraints on 3. implementation The purpose of this indicator is to analyze whether a specific patented technical solution falls within the scope of protection of the prior patent, and if so, the implementation of the specific patent requires the permission of the prior patentee, otherwise the prior patent will be infringed. In the specific judgment method, after searching, compare a particular patent with a closest prior patent, determine the degree of overlap with the prior patent independent claim, and determine whether the two constitute equivalent if there is a difference in technical characteristics. Obviously, if there is a substantial difference between a particular patent and the nearest prior patent, and the technical characteristics of the independent claim are significantly different, then the particular patent can be implemented independently and is not subject to the surviving patent, which is the best. If a particular patent is subject to a prior patent, but the prior patent clearly has a flaw that has been declared invalid or if the particular patent has room to avoid the prior patent, it is an intermediate result. If a particular patent falls within the scope of prior patent protection and lacks substantive characteristics relative to the prior patent, it is a poor result. 4. degree of restriction on following patents This indicator is used to determine the degree of restriction of a particular patent on the implementation of a subsequent follow-up improvement technology, I .e., the probability of a subsequent follow-up technology avoiding a particular patent infringement. In the specific method, compare the specific patent with the following patent, and analyze whether the specific patent can effectively restrict the independent implementation of the following patent relative to the specific patent. Obviously, it is best if the follow-up patent is not retrieved, or if the follow-up patent falls unquestionably within the scope of protection of a particular patent. If, although there are different technical characteristics between the following patent and the specific patent, there is no substantial difference, that is, the following patent has a high probability of falling into the scope of protection of the specific patent, is also a better result. If the follow-up patent does not fall within the scope of protection of the particular patent, I .e. the follow-up patent can be implemented freely without the restriction of the particular patent, then the value of the particular patent will be diminished. 5. stability This indicator is used to determine the possibility of invalidation of a particular patent. Compare the specific patent with the existing technology before the filing date, and determine whether the specific patent has the risk of being declared invalid as stipulated in Article 65 of the Regulations of the Patent Law. Under this index system, the stability of patents with more distinguishing technical features is higher than that of patents with less distinguishing technical features. If a particular patent independent claim has more distinguishing technical features that are materially different from the combination of more than one prior art, then the probability of that particular patent being declared invalid is small and optimal. If a particular patent independent claim has few or no distinguishing technical features that differ materially from a combination of prior art within 3 articles, then the probability that the particular patent will be invalidated is high and is a poor result. If a particular patent independent claim has several distinguishing technical features compared with the combination of 3 or so existing technologies, but it is doubtful whether the distinguishing technical feature is a replacement of customary technical means, then the probability of the particular patent being declared invalid is in the middle. To sum up, according to the relevant provisions of China's Patent Law, Detailed Rules for the Implementation of the Patent Law and Patent Examination Guidelines, the author takes the quality of patent text as the main line, combines the characteristics of invention or utility model patents, and discusses the reliability of patent protection from five aspects: patent category, patent text quality, restriction degree of patent implementation, restriction degree of patent to follow patent, and stability of patent, the legal restriction effect of specific patented technology on the related technology in the same technical field is given objectively, and the result probability of infringement litigation is expected.

2021-12-20