(I) of Vision of Administrative Litigation | Scope of Administrative Litigation

Foreword The scope of administrative litigation is an important theoretical and practical issue in administrative litigation. In short, it refers to which cases the people's court can accept as administrative cases. It determines which administrative actions citizens, legal persons and other organizations in administrative legal relations can bring administrative litigation relief, and also determines the scope of administrative power restricted by judicial power. The Concept and Nature of the Scope of Accepting Cases in 1. Administrative Litigation The scope of accepting cases in administrative litigation refers to the scope of accepting administrative cases by the court, that is, the jurisdiction of the court to accept and try administrative cases. From the point of view of the judicial power of the court, it refers to the judicial review power of the court over which administrative acts of the administrative organ; from the point of view of the administrative organ, it refers to which acts of the administrative organ will be supervised by the people's court; from the point of view of the administrative counterpart, it means that the counterpart can sue the people's court when he is not satisfied with which administrative acts. Not all administrative disputes can bring administrative litigation to the court. Only when the administrative dispute is within the scope of accepting cases stipulated by law, the administrative relative can bring administrative litigation. The scope of accepting cases is an important issue in administrative litigation and an important symbol that distinguishes administrative litigation from other litigation. The scope of administrative litigation cases accepted by the people's courts determines the scope of supervision by judicial organs over the actions of administrative subjects, the scope of administrative litigation brought by citizens, legal persons and other organizations infringed by administrative subjects, and the scope of the power of final administrative adjudication. 2. Legal Provisions on the Scope of Accepting Cases in Administrative Litigation On the whole, China's current legislation uses a combination of generalization, positive and negative enumeration to provide for the scope of administrative litigation. (I) General Provisions The first paragraph of Article 1 of the Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's the People's Republic of China of China (Law Interpretation No. 1 [2018], hereinafter referred to as the "Interpretation of the Administrative Litigation Law") stipulates in a general manner the scope of administrative litigation, that is, "Citizens, legal persons or other organizations that are dissatisfied with the administrative actions of administrative agencies and their staff and file lawsuits in accordance with the law shall fall within the scope of the people's courts". (II) the positive list and cover the bottom. Article 12 of the the People's Republic of China Administrative Procedure Law (amended in 2017, hereinafter referred to as the "Administrative Procedure Law") stipulates the scope of administrative litigation accepted by the people's court in two paragraphs by specifically enumerating and covering the bottom, that is, "the people's court shall accept the following lawsuits brought by citizens, legal persons or other organizations: (1) those who are not satisfied with administrative penalties such as administrative detention, temporary suspension or revocation of permits and licenses, order to suspend production or business, confiscation of illegal gains, confiscation of illegal property, fines, warnings, etc.; (II) those who are not satisfied with administrative compulsory measures such as restriction of personal freedom or the seizure, seizure or freezing of property; (III) the administrative organ refuses or fails to reply within the statutory time limit for the application for administrative license, or refuses to accept other decisions made by the administrative organ on administrative license; (IV) refuses to accept the decision made by the administrative organ on confirming the ownership or right to use of natural resources such as land, mineral deposits, water flows, forests, mountains, grasslands, wastelands, beaches, sea areas, etc.; (V) refuses to accept the decision on expropriation, requisition and compensation; (VI) the administrative organ refuses to perform or fails to reply to the application for the administrative organ to perform its legal duties of protecting personal rights, property rights and other legitimate rights and interests; (VII) believes that the administrative organ infringes on its management autonomy or rural land contractual management right or rural land management right; (VIII) believes that the administrative organ abuses its administrative power to exclude or restrict competition; (IX) believes that the administrative organ illegally raises funds, apportions expenses or illegally requests to perform other obligations; the (X) believes that the administrative agency has not paid pensions, minimum living security benefits, or social insurance benefits in accordance with the law; (11) It believes that the administrative agency has not performed in accordance with the law, failed to perform in accordance with the agreement, or illegally changed, or terminated the government franchise agreement, and the land and house expropriation compensation agreement And other agreements; (12) It is believed that the administrative agency infringes other legal rights and interests such as personal rights and property rights. In addition to the provisions of the preceding paragraph, the people's court shall accept other administrative cases that may be brought by law and regulations." (III) negative provisions Article 13 of the Administrative Litigation Law lists in a negative way the matters that are not accepted in administrative litigation, that is, "the people's court shall not accept lawsuits brought by citizens, legal persons or other organizations on the following matters: (1) national defense, foreign affairs and other state acts; (II) administrative regulations, rules or decisions and orders with general binding force formulated and issued by administrative organs; (III) administrative organs' decisions on rewards and punishments, appointment and removal of staff of administrative organs; an administrative act that is finally decided by an administrative organ as prescribed by (IV) law." The second paragraph of Article 1 of the Judicial Interpretation of the Administrative Procedure Law also lists in a negative way the acts that do not fall within the scope of administrative litigation, that is, the following acts do not fall within the scope of administrative litigation of the people's courts: (1) acts carried out by public security, national security and other organs in accordance with the explicit authorization of the Criminal Procedure Law; acts of (II) mediation and arbitration as prescribed by law; (III) acts of administrative guidance; (IV) the repeated handling acts of rejecting the party's complaint against the administrative act; the act of (V) the administrative organ that does not produce external legal effect; the preparation, demonstration, research, layer reporting, consultation and other procedural acts carried out by the (VI) administrative organ for the purpose of making the administrative act; the execution act made by the (VII) administrative organ in accordance with the effective judgment of the people's court and the notice of assistance in execution, however, except for administrative agencies that expand the scope of enforcement or adopt illegal methods; (VIII) higher-level administrative agencies to listen to reports, law enforcement inspections, and supervise the performance of responsibilities to lower-level administrative agencies based on internal hierarchical supervision relationships; (IX) administrative agencies to register for letters and visits, Acceptance, assignment, transfer, review, review opinions, etc; (X) acts that do not actually affect the rights and obligations of citizens, legal persons or other organizations." Types and Characteristics of 3. Administrative Acts According to the above provisions, the actionable administrative acts can be summarized as: specific administrative acts; administrative factual acts; administrative agreements; other administrative cases that can be sued by laws and regulations. (I) specific administrative acts A specific administrative act is an act of administrative law that is unilaterally made by an administrative agency in response to a specific event, has external effects, and contains administrative inaction. Specific administrative acts have the characteristics of unilateral, individual and legal effect. 1. Unitarity. Refers to the fact that the legal effect is based on the unilateral meaning of the administrative organ. The production of legal effect is determined by the administrative organ unilaterally, which is the embodiment of administrative coercive force and reflects the inequality between the two sides of the administration. This is different from the administrative agreement in which the relative person participates in the meaning. 2. Individuality. Refers to the administrative action is made for a specific person, specific events. Generally binding administrative acts that are not directed at specific persons or specific matters are not specific administrative acts, but abstract administrative acts, which are not actionable. 3. legal effect. Refers to the direct external legal effects of the act. Contains the following points: direct, means that the legal effect must occur directly to the relative, once the administrative act is done, it will lead to the creation, change and elimination of the rights and obligations of the relative. Externally, it refers to the legal effect of administrative acts on persons other than the administrative subject, the exchange of views between administrative organs or within administrative organs, internal supervision and guidance and other administrative internal acts are not justiciable due to lack of external nature (see (2017) Administrative Judgment No. 295 of the Supreme Law). In addition, the act produces a legal effect, is legally binding, and aims to generate, change, and eliminate the rights and obligations of the counterpart (including substantive law and procedural law), such as the rejection of the application of the recipient, and only produce The administrative fact that the result is different. Legal validity also includes the characteristics of binding force and compulsion. Administrative acts that do not have legal binding force on the rights and obligations of the relative person do not have legal validity, such as administrative guidance and administrative mediation. (II) administrative factual acts Administrative factual acts can directly produce factual effects. This kind of behavior objectively has no legal effect, subjectively does not produce legal effect. The act itself cannot produce the creation, change and elimination of legal relations in administrative law, nor does its purpose be to produce, change or terminate the rights and obligations of the relative, but only the actual profit and loss in the result. Such as the act of forced demolition, although the result of the demolition caused losses to the relative person, but the purpose of the demolition act is not to create an obligation to the relative person, but in the case of the relative person does not perform the demolition obligation to make a factual act of the pursuit of the result of the fact. The reason why administrative factual acts are included in the scope of litigation is that the administrative factual acts are only uncertain of the rights and obligations of the parties in terms of content, not that they do not affect the rights and interests of the parties in terms of consequences, and their inclusion in the scope of administrative litigation is conducive to protecting the legitimate rights and interests of administrative counterparts and standardizing the law enforcement behavior of administrative personnel. (III) administrative agreement Article 12, paragraph 1, item 11 of the Administrative procedure Law brings administrative agreements into the scope of accepting cases in the Administrative procedure Law. Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases (Fa Shi [2019] No. 17) stipulates the definition of an administrative agreement, and Article 4 includes all disputes arising from the conclusion, performance, modification and termination of an administrative agreement into the scope of accepting cases. Whether an agreement is an administrative agreement or a civil agreement, from the perspective of court judgments in practice, there are three main criteria for judging: first, one of the parties to the agreement is an administrative agency; second, the content of the agreement involves rights and obligations in administrative law; Third, the purpose of the agreement is to achieve public interest or administrative management goals. Other administrative cases that may be instituted in (IV) with the provisions of laws and regulations 1. The administrative acts stipulated in the Administrative Procedure Law include administrative acts made by organizations authorized by laws, regulations and rules. Therefore, even if the subject of the act is not an administrative agency, as long as the act is authorized by laws, regulations and rules, the act is regarded as an administrative act and is actionable. 2. Government information disclosure behavior. Article 51 of the regulations on the Disclosure of Government Information of the the People's Republic of China gives citizens, legal persons or other organizations the right to bring administrative proceedings against the disclosure of government information by administrative organs. 3. Administrative reconsideration cases. Article 5 of the "the People's Republic of China Administrative Reconsideration Law" stipulates the right of citizens, legal persons or other organizations to initiate administrative litigation against administrative reconsideration decisions, except where the law stipulates that administrative reconsideration decisions are final. 4. Administrative compensation. Administrative compensation refers to the legal exercise of administrative power by the administrative subject, which damages the legitimate rights and interests of the administrative counterpart, or when the administrative counterpart damages his legitimate rights and interests for the public interest, the state makes up for the loss of the administrative counterpart. The "Reply of the Supreme People's Court on Accepting Housing Demolition, Compensation, Resettlement and Other Cases" once stipulated: "Citizens, legal persons, or other organizations are related to housing demolition, compensation, resettlement and other issues made by the people's government or the urban housing administrative agency in accordance with their powers. If the ruling is not satisfied, the people's court shall accept a lawsuit as an administrative case." 5. Administrative compensation. Article 2 of the "the People's Republic of China State Compensation Law" stipulates: "If a state agency or a staff member of a state agency violates the lawful rights and interests of citizens, legal persons, and other organizations in the illegal exercise of powers and causes damage, the victim has the right to obtain state compensation in accordance with this law." Article 2 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Compensation Cases" stipulates: "If the compensation claimant confirms that the specific administrative act is illegal but decides not to compensate, or has objections to the determined amount of compensation, the people's court shall accept the administrative compensation lawsuit." 6. Administrative public interest litigation. In the course of performing its duties, the people's Procuratorate finds that administrative organs responsible for supervision and management in the fields of ecological environment and resource protection, food and drug safety, state-owned property protection, transfer of state-owned land use rights, and protection of heroic memorial facilities have illegally exercised their functions and powers or failed to act, resulting in infringement of national interests or social public interests, Procuratorial recommendations shall be made to the administrative organs to urge them to perform their duties in accordance with the law. If the administrative organ still fails to perform its duties in accordance with the law after being urged by the procuratorial organ, and the national interests or social public interests are in a state of infringement, the people's procuratorate shall file an administrative public interest lawsuit in accordance with the law. Characteristics of non-actionable administrative acts in 4. Not all administrative acts are actionable. Combined with the provisions of laws and judicial interpretations and court decisions, non-actionable administrative acts have the following characteristics: (I) administrative act is not directed at a specific person or event and is not actionable. If an administrative act is aimed at an unspecified person, it cannot be sued, but attention should be paid to the judgment of the administrative act of a specific and determined group of people with a large number of people. This type of administrative act is an actionable administrative act. For example, in the case of Huang Shaohua v. Huixian municipal government to raise the pension standard, the pension standard for more than 1700 migrant workers belongs to this group of specific personnel, which should be a specific administrative act and can be sued. Internal acts of (II) administrative organs are generally not actionable. Behaviors such as listening to reports, law enforcement inspections, supervision and performance of responsibilities between administrative agencies, internal meeting minutes, rewards and punishments, appointments and dismissals, and mediation and guidance that are not legally binding and coercive do not directly have legal effect to the outside world. It is actionable. However, when the revocation or change of the original administrative act by the higher administrative organ has a substantial impact on the rights and obligations of the parties, this kind of internal supervision is external and can be sued. For administrative acts that require the approval of a higher authority and are made by a lower authority in the joint name of a higher authority and a lower authority, the approval of the higher authority has been externalized and is justiciable. (III) administrative acts that do not actually affect the rights and obligations of the administrative counterpart shall not be sued. Such acts include the repeated handling of complaints filed by the parties to the administrative act, the execution of the administrative organ in accordance with the effective judgment of the people's court, the notice of assistance in execution, etc., except for the administrative organ's expansion of the scope of execution or the act of assistance in execution in an illegal manner. If the people's government identifies the community as a shantytown, it does not have a substantial impact on the rights of the administrative counterpart and cannot be sued. The act of the government changing the property right of the relative person's house according to the court's notice of assistance is not actionable. However, at the request of other departments, the administrative organ exercises its administrative functions and powers in accordance with its own will, and makes specific administrative acts independently on specific matters, which have a substantial impact on the rights of the administrative counterpart and are actionable. At this time, the requirements of other departments are only the cause of initiating specific administrative acts and are not actionable. (IV) procedural administrative line, not actionable For example, non-performance of procedural obligations such as the service of notice, non-litigation. However, if a procedural administrative act does have an impact on the legitimate rights and interests of the counterparty, and because the final substantive decision cannot be made, the process cannot be made.

2021-12-14

Viewpoint | A brief analysis of the invalidity of serious flaws in the content of the company's resolution

Abstract: China's law adopts the "three-point method" for company resolutions, including non-establishment, invalid and revocable. The company's resolution is invalid because the content of the resolution is seriously flawed, that is, its content violates laws and administrative regulations. The invalidity of a company resolution is statutory from the beginning and does not apply the statute of limitations. Keywords: company resolution invalid content serious defects The act of corporate resolution is a civil legal act of a certain procedural nature made by the legal person of the company in accordance with the method of discussion and voting procedures stipulated by the law or the articles of association. As a kind of civil legal act, the company resolution must meet the establishment requirements of civil legal act, that is, the resolution must be made by the shareholders' meeting or the board of directors, and the final voting result represents the true intention of the corresponding proportion of shareholders or directors. As the company's intention, the company's resolution can only have legal effect if the procedure and content of the resolution are legal and fair. Our law adopts the "trichotomy" for corporate resolutions, which includes three categories: non-establishment, invalidity and revocability. The company's resolution is invalid because the content of the resolution is seriously flawed, that is, its content violates laws and administrative regulations. 1. relevant mandatory legal provisions Article 4 of the Company Law "Inherent Rights of Shareholders of a Company (Income from Assets, Participation in Major Decisions, Selection of Managers)." Article 16 "The provisions of the company's guarantee (the guarantee for others shall be resolved by the board of directors or the shareholders' meeting or the general meeting of shareholders in accordance with the provisions of the articles of association, and the guarantee for shareholders or the actual controller shall be avoided by the resolution of the shareholders' meeting or the general meeting of shareholders, and the voting of the shareholders controlled by the above-mentioned shareholders and the actual controller shall be passed by more than half of the voting rights of other shareholders present at the meeting)." Article 20 "The shareholders of the company shall not abuse the provisions of the rights of shareholders. (The rights of shareholders shall not be abused to the detriment of the interests of the company, other shareholders and creditors)", Article 21 "The related relationship to the detriment of the interests of the company." Article 34 "The provisions on the distribution of dividends and the subscription of capital contributions. (Shareholders shall share dividends and subscribe for additional capital contributions in proportion to their actual contributions, unless otherwise agreed by all shareholders.)" Article 16 of the (III) for Judicial Interpretation of the Company Law "Provisions on Reasonable Limitation of Shareholders' Rights. (Failure to fulfill or fully fulfill the obligation of capital contribution or withdrawal of capital contribution, the right to request profit distribution, the right to subscribe for new shares, the right to distribute surplus property, etc. may be restricted in accordance with the Articles of Association or the resolution of the shareholders' meeting)", Article 17 "The provision of disqualification of shareholders. (Failure to fulfill the obligation to contribute or to withdraw all the capital contribution, and failure to make up for it within a reasonable period of time after being urged may disqualify the shareholder.)" Article 59 of the "Civil Servants Law" stipulates that "civil servants shall not take shares and hold posts concurrently." The statute of limitations is not applicable to the lawsuit that the 2. confirms the invalidity of the company's resolution. It is generally believed that the statute of limitations applies to claims and primarily to claims, I .e., the statute of limitations may apply only if the right holder requests a particular act or not for a particular act. The exorcism period applies to the right of formation, the application of the exorcism period is usually expressly provided by law, the law only provides for the application of the exorcism period for the revocation of the resolution, and for the invalidity of the company's resolution. The invalidity of the company's resolution is invalid from the beginning and is not subject to the limitation period. In the second instance of Dong Fangdi v. Zhu Hong Company's resolution dispute ((2018) Hu 01 Min Zhong No. 6946), the court held that the original application of Zhu Hong, Sha Yan and Chen Xiaoying confirmed that the resolution of the shareholders' meeting was invalid, and the object of the application was not the right to claim creditor's rights. Therefore, the limitation of action was not applicable to the original application of Zhu Hong, Sha Yan and Chen Xiaoying. In the second instance of the dispute over the resolution of Yin Yongqiang and Gu Yalin Company ((2020) Ji 01 Min Zhong No. 626), the court held that Gu Yalin's lawsuit in this case was to confirm that the company's resolution was invalid. The court of first instance held that the claim was a right of formation, and the statute of limitations was not applicable and there was nothing improper. Determination of the Eligible Plaintiff 3. to Initiate the Invalidation of the Confirmation Resolution Company resolutions, as internal resolutions, have internal effect only, not external effect. The creditors of the company, as outsiders of the company, are generally not bound by internal resolutions of the company. Under normal circumstances, the company's resolution does not have a direct legal relationship with the creditor, unless the creditor and the company signed a contract with the relevant express agreement, otherwise, the creditor has no practical legal interest in intervening in the dispute over the validity of the company's resolution. A shareholder in the legal sense refers to a shareholder recorded in the company's register of shareholders and registered by the company's registration authority, and an anonymous shareholder is not a shareholder in the sense of the company law, and generally has no right to independently claim that the company's resolution is invalid until the company confirms its shareholder status. In the civil ruling case of the second instance of the dispute over the confirmation of the validity of the resolution of Anhui Longzhi Construction Investment Co., Ltd. and Anhui Outlets Investment Co., Ltd. ((2020) Wan 01 Min Zhong No. 3867), the court held that although Longzhi Construction Company was no longer a shareholder of Outlets Company in terms of industrial and commercial registration when the resolution of the shareholders' meeting involved in the case was made, Longzhi Construction Company was an industrial and commercial registered shareholder of Outlets Company, and the resolution of the shareholders' meeting also contains the opinions on the transfer of equity of Longzhi Construction Company and the corresponding changes in the equity structure of the company. As a shareholder at the time of the formation of the resolution of the shareholders' meeting, Longzhi Construction Company is an internal member of the company, and its interest in the resolution of the shareholders' meeting is not only in the maintenance of individual rights and interests, but also in the supervision of the legality of the company's actions. Therefore, there is no need to determine the relationship between the resolution of the shareholders' meeting involved in the case and the result of the equity transfer. Even if the existence of the resolution of the shareholders' meeting is not the fundamental reason why the equity of Outlets Company enjoyed by Longzhi Construction Company was transferred to Nikpu Company, which is an outsider, it cannot be used to push Longzhi Construction Company not to have any litigation interest in confirming the invalidity of the resolution of the shareholders' meeting. In the first instance of the dispute over the validity confirmation of the resolution between you zhuofan and Shenzhen huate city construction and development co., ltd. ((2018) yue 0303 min Chu no 12310), the court held that: except shareholders, directors and supervisors, other personnel need to prove that they have a direct interest in the content of the company's resolution before they can be qualified plaintiffs. In this case, the plaintiff was only a general creditor of the defendant, not an insider of the company, nor a bondholder or creditor who may have a voting arrangement, and there was no direct interest between it and the defendant's corporate resolution, but only a contract of debt and debt type with the company as the subject. The contract between the plaintiff and the defendant belongs to the contract between two independent subjects, and the protection can be realized by applying the existing legal system such as contract law or the right of avoidance. The company resolution made by the defendant is only the internal behavior of the defendant, which belongs to the formation process of the will and even the expression of the will of the unilateral subject of the company, and the plaintiff, as a creditor, has no right of action to negate the effectiveness of the defendant's internal behavior. The determination of the qualified plaintiff in the case of the 4. to confirm the validity of the resolution. According to the provisions of relevant laws and judicial interpretations, the litigation of the validity of corporate resolutions in China only includes three types of litigation: the invalidity of the resolution, the revocation of the resolution and the non-establishment of the resolution, and does not include the confirmation of the validity of the resolution. The three kinds of corporate resolution validity litigation stipulated in relevant laws and judicial interpretations are designed to give shareholders who may be harmed by defective resolutions to exercise statutory shareholder relief rights to protect their legitimate interests. However, if the shareholder does not take the initiative to bring a lawsuit in accordance with the above-mentioned provisions of the company law and judicial interpretation, the court shall not directly intervene in the affairs of the company's autonomy through the coercive force of the state. The trial of a lawsuit confirming the validity of a company's resolution requires both formal and substantive examination. When conducting a substantive review, it is necessary to make an empirical judgment from the perspective of the commercial subject, and the result is likely to deviate from the spirit of corporate autonomy. The company law and judicial interpretation do not provide for the confirmation of the validity of the company's resolution, which reflects the careful measurement of the relationship between corporate autonomy and judicial intervention. A court that confirms the validity of a resolution is generally inadmissible. The plaintiff who confirms the validity of the resolution should generally take the interest of the lawsuit as the prerequisite, and the determination of whether the interest of the lawsuit is not only based on the existence of a dispute in the legal relationship of the civil entity, but also on whether the legal relationship in dispute constitutes a dispute or the core legal relationship of the lawsuit. In other words, a contested legal relationship cannot be a prerequisite for other disputes or litigation, but only in this way can it have a confirmed interest and can be sued for confirmation. In the second instance of the civil dispute over the resolution of Guangdong Xinhui Bioenergy Co., Ltd., Beijing Xinhui Bioenergy Technology Co., Ltd., Beijing Qing 'an Hongda Bioengineering Technology Co., Ltd., Dongguan Zhongchang Environmental Protection Investment Co., Ltd., and Guangdong Qingda Venture Capital Co., Ltd. ((2020) Yue 19 Min Zhong No. 2622), the court held that the company law and its judicial interpretation did not explicitly exclude the lawsuit confirming the validity of the relevant agreement. Therefore, whether the parties exercise the right of action has the interest of litigation, it should be distinguished according to the specific objective circumstances of different cases, that is, if the validity of the resolution involved in the case is not confirmed, it will affect the legitimate interests of the parties to the lawsuit to confirm the validity of the agreement, resulting in the unstable relationship between the rights and obligations of the parties. In this case, it has the interest of litigation. In this case, the content of the resolution of the board of directors involved in the case involves the change of the legal representative, which is different from the general business and management resolutions of the company. Because the legal representative is in the special status of the company, if the validity of the resolution involved is not confirmed in time, it may cause confusion or obstacles to the operation of the company. Therefore, the two directors in this case filed a lawsuit to confirm the validity of the agreement involved, which has the interest of litigation and falls within the scope of the people's court. In the civil second instance case ((2020) Yue 19 Min Zhong No. 3269) of the dispute over the validity of the resolution of Dongguan Jiahong Education Technology Co., Ltd. and Huang Dongnan and He Zhipeng Company, the court held that: having the interest of litigation should meet the following requirements at the same time: 1. There is sufficient evidence to prove that the validity of the resolution of the shareholders' meeting is not clear, so there are disputes among shareholders; 2. The right or legal status of the shareholder who brought the lawsuit is in real danger or anxiety due to the unclear effect of the resolution of the shareholders' meeting; 3. The interest of the shareholder's lawsuit for confirmation cannot be covered by other claims for payment. In this case, Huang Dongnan claimed that the resolution of the shareholders' meeting formed by the interim shareholders' meeting on March 1, 2019 was valid, while Jiahong Company and He Zhipeng claimed that the resolution was not valid, and there was a dispute between the two parties over the validity of the resolution. Due to the unclear validity of the resolution of the shareholders' meeting, Huang Dongnan was unable to change to the executive director, supervisor and legal representative of Jiahong Company, and went through the corresponding company change registration, which objectively led to Jiahong Company's chaotic operation and management. Therefore, the Court considers that Huang Dongnan has an interest in litigation for the request to confirm the validity of the resolution, and his lawsuit for the validity of the resolution of the shareholders' meeting falls within the scope of the court's case. The resolution on the removal of 5. shareholders shall meet the requirements of procedural and substantive elements. According to the provisions of Article 17 of the Judicial Interpretation (III) of the Company Law, the company may disqualify a shareholder by resolution of the shareholders' meeting, but the following conditions must be met: 1. The shareholder fails to fulfill the obligation of capital contribution or withdraw all capital contribution; 2. The company has fulfilled the pre-procedure of reminder and given shareholders a reasonable time limit to make up for it; 3. The company made a resolution to delist in the form of a resolution of a shareholders' meeting. In addition, the provisions of this article grant the right of delisting of shareholders who fail to fulfill their capital contribution obligations or withdraw all their capital contributions, and on the basis that the actions of the defaulting party have seriously harmed the interests of the company and the rights and interests of shareholders, the defaulting party should not be granted the right of delisting of shareholders who fail to fulfill their capital contribution obligations or withdraw all their capital contributions. In the second instance of the dispute over the validity confirmation of the resolution of Guanling lingnan driving school co., ltd. and Lu rongzhi company ((2017) Qian 04 min zong no 750), the court held that Lu rongzhi, Lu rongtao, tan chenglin, Luo xingju and Wang kaixian should urge Wang changmei to pay and pay the capital within a certain reasonable period of time even if they believed that Wang changmei had failed to fulfill his capital contribution obligation. However, the appellant has no evidence to prove that he has fulfilled the above-mentioned reminder obligation, and Wang Changmei can prove that he has fulfilled the obligation of capital contribution, which does not meet the substantive elements of the shareholder's removal. In the second instance of the dispute over the validity confirmation of the resolution between Huai 'an Ye Chen Real Estate Co., Ltd. and He Bing Company ((2019) Su 08 Min Zhong No. 1434), the court held that in this case, Ye Chen Company made a shareholders' meeting resolution to disqualify He Bing as a shareholder on the grounds that He Bing had withdrawn more than its capital contribution of 20 million yuan and was not returned by the company. Now both parties agree that the dispute in this case is whether the appellee He Bing constitutes withdrawal of all, if the entire list is not withdrawn, the resolution of the shareholders' meeting to remove the list shall be invalid for violating the above-mentioned legal provisions. The evidence available to the appellant is not sufficient to prove that the appellee He Bing has withdrawn all the capital contributions of Ye Chen Company, so his resolution of the shareholders' meeting to remove He Bing is invalid due to violation of the provisions of the above-mentioned company law. In the second instance of the dispute over the confirmation of the validity of the resolution between Yu Hanying, Wu Wenbiao and Guangdong Yuehui Environmental Protection Co., Ltd. ((2020) Yue 19 Min Zhong No. 11525), the court held that in this case, Wu Mou 1 also had the situation of withdrawing all capital contributions. According to the legal principles of consistency of rights and obligations, fairness and integrity, that is, Wu Mou 1 had no right to hold a shareholders' meeting, the resolution disqualified Yu Hanying as a shareholder, so the resolution of the shareholders' meeting made by Guangdong Hui Company on May 25, 2020 was invalid, and the trial court made an error in this handling, which was corrected by this court. The resolution of the 6. shareholders' meeting to impose a fine on a shareholder shall be based on the standard and range of the fine clearly stated in the articles of association of the company. After the shareholders fulfill the obligation of capital contribution, they and the company are equal civil subjects, have independent personality between each other, there is no relationship between management and management, the company's shareholders' meeting in principle has no right to impose any punishment on the shareholders. The provisions of the articles of association on the imposition of fines on shareholders at the shareholders' meeting are a sanction measure preset by all shareholders of the company for violating the articles of association, which is in line with the overall interests of the company, reflects the human characteristics of the limited company, does not violate the prohibitions of the company law, and should be legal and effective. However, when the articles of association give the shareholders' meeting the power to impose fines on shareholders, the standard and range of fines shall be clearly defined. In the case of Nanjing AXA Financial Consulting Co., Ltd. v. Zhu Juan's shareholders' meeting resolution fine dispute (Bulletin of the Supreme People's Court, No. 10 (General No. 192), 2012), the court held that in this case, when AXA revised its articles of association, although it stipulated that the shareholders' meeting had the right to impose a fine on the shareholders in the eight circumstances of the first paragraph of Article 36, however, the standard and range of the fine are not clearly recorded in the articles of association of the company, so that Zhu Wei can not make a prior prediction of the consequences of the violation of the articles of association of the company, so the resolution of the interim shareholders' meeting of AXA Company to impose a fine on Zhu Wei is obviously insufficient legal basis and should be considered invalid. Invalidity of 7. violation of voting recusal Voting rights avoidance system refers to the system in which a shareholder or agent may not exercise voting rights in respect of the shares held by him or her when he or she has a special interest in the resolution discussed at the general meeting of shareholders. The "Company Law" only provides for three types of voting rights avoidance situations. Article 16 stipulates that if a company provides guarantees for shareholders or actual controllers, shareholders controlled by the guaranteed shareholders or actual controllers shall not participate in voting; Article 17 The shareholder delisting rules established are only applicable to two types of shareholders who have completely failed to fulfill their capital contribution obligations or evaded all capital contributions; article 124 stipulates that if the directors of a listed company are related to the enterprise involved in the resolution of the board of directors, they shall not participate in the voting.

2021-12-13

Point of view | The determination of "toxic and harmful" in the crime of producing and selling toxic and harmful food.

Abstract: The crime of producing and selling toxic and harmful food is an important crime of food safety. The key to the identification of this crime lies in the subjective and objective determination of "toxic and harmful. The objective level requires that the non-food raw materials must be able to cause harm after human consumption in quality, and must reach a certain degree of impact on human health in quantity. The subjective level requires that the perpetrator be aware of the toxicity. Keywords: toxic and harmful knowingly identified The "Criminal Law Amendment (VIII)" has revised and improved the crime of producing and selling toxic and harmful food, increased the penalty, and strengthened the protection of food safety. However, there are still many uncertainties in how to determine "toxic and harmful" in judicial practice. The place. Based on the actual experience of handling cases, this paper makes a detailed analysis of the criteria of "toxic and harmful" from the perspective of criminal law hermeneutics, with a view to benefiting the application of this crime. Objective Level of 1. -- Definition of Toxic and Harmful The key to the identification of the crime of producing and selling toxic and harmful food is "toxic and harmful". If the mixed non-food raw materials are non-toxic and harmless, then it does not constitute a crime. If the mixed non-food raw materials do not meet the safety standards, then it constitutes the crime of producing and selling food that does not meet the safety standards. In the provisions of the crime of producing and selling toxic and harmful food stipulated in Article 144 of the Criminal Law, there is no clear definition of the toxic and harmful nature of food, so it is necessary to carefully interpret "toxic and harmful". So as to correctly delineate the boundaries between crime and non-crime, this crime and the other crime. According to the provisions of the Food Safety Law, food safety means that food is non-toxic and harmless, meets the due nutritional requirements, and does not cause any acute, subacute or chronic harm to human health. From this article, we can conclude that toxic and harmful means that it does not meet the nutritional requirements and causes any acute, subacute or chronic harm to human health. Some scholars also pointed out that "food safety refers to the situation that will not cause any damage to consumers when used by consumers in accordance with the intended use." Therefore, toxic and harmful should be understood as food that causes harm to human health and does not meet the standards for human consumption or drinking. Does this mean that as long as non-food raw materials contain toxic and harmful ingredients can be identified as a crime? In real life, food contains certain toxic and harmful substances is completely normal. At present, there are about three thousand kinds of food additives, and most of them are toxic and harmful, but the country has not banned the addition of additives to food because of these toxicities, because appropriate additives can make food more delicious and more beautiful., The preservation time is longer. Obviously, we cannot think that as long as there are toxic and harmful ingredients in food, we must be recognized as a crime, and we must also clarify the degree of toxicity and harm required. (I) toxic and harmful judgment data Non-food raw materials themselves are toxic and harmful, and they also bring harm to the human body after eating. For those non-food raw materials that are toxic and harmful and will cause harm to the human body after eating, they should naturally be regarded as toxic and harmful. This is not controversial. Non-food raw materials themselves are toxic and harmful, but they will not cause harm to the human body after eating. Do non-food ingredients that are inherently toxic but do not cause harm to the human body after consumption fall within the scope of this crime? The author believes that although this crime is a crime, it does not mean that it does not require any degree of requirement. In this case, because it will not produce results that harm the society, it does not have social harm, and it does not meet the toxic and harmful standards in the crime of producing and selling toxic and harmful food. 3, non-food raw materials itself non-toxic, harmless, but after eating to bring harm to the human body This situation needs to be discussed on a case-by-case. The first is to eat or drink food caused by their own reasons. There are two kinds of situations, one is that consumers eat or drink too large a dose and lead to poisoning. The second is that for those who have a special constitution, their consumption of food containing certain non-food raw materials has caused damage to health, and ordinary people will not cause harmful results after eating. We believe that the above two cases of non-food raw materials do not meet the toxic and harmful standards. The reasons are as follows: first of all, the health problems of the eaters who do not eat or drink food according to the dose are caused by their personal reasons, not by the behavior of the perpetrator. According to the responsibility doctrine, this harmful result can not be attributed to the perpetrator, so it can not be regarded as a crime. Secondly, everyone's physical condition is different. If the eaters have health problems due to their own physical fitness, we naturally cannot pursue the criminal responsibility of the perpetrator. The second is that the non-food raw materials themselves are not toxic but react after compounding, resulting in the production of toxic and harmful substances. This situation needs to be based on the premise that the perpetrator knows that chemical changes will occur and produce toxic and harmful elements. If the perpetrator does not know that it will react to generate toxic substances, it should be regarded as an accident and should not be regarded as a crime. Contrary to this situation, non-food raw materials are inherently toxic, but when non-food raw materials are mixed into food, chemical changes occur between non-food raw materials and food or in the case of compound addition, making food non-toxic. This situation also requires the perpetrator to know that non-food raw materials will produce chemical changes after the addition of food non-toxic, otherwise it is purely accidental coincidence and lead to non-toxic, but the perpetrator's understanding of the error, still constitute the crime, but in this case may be established is the attempted form of this crime. Defining Standard of (II) Toxic and Harmful Through the above discussion of toxic and harmful judgment data, we think that we should grasp the standard of toxic and harmful identification from the two levels of quality and quantity. Qualitative requirements. The non-food material must be capable of causing harm after human consumption. Here to exclude the consumption of personal reasons for the harm caused by the situation. In addition, this crime is a crime does not require the actual harm results, but requires toxic, harmful to be highly closely related to the harm to human health, for those who are toxic but will not cause any harm can not be identified as this crime. amount of requirements. Poisonous ingredients must reach a certain degree of impact on human health. Food should not contain factors that cause harm to human health, but this does not mean that food cannot contain any harmful ingredients, but that the content of harmful ingredients cannot reach the level that can cause harm to human health. Some non-food raw materials themselves are indeed harmful, but their quantity is not enough to cause damage or threat to human health, so this non-food raw material does not meet the requirements of toxicity and harm, and cannot be used as a prerequisite for conviction. 2. the subjective level-the actor should know that it is toxic and harmful. Is toxic and harmful a knowingly content? Some scholars believe that in determining the subjective aspect of the crime of producing and selling toxic and harmful food, the perpetrator can only be required to have knowledge of the incorporation of non-food raw materials, not knowledge of the toxic and harmful nature. If the producers and sellers are required to know the toxicity, it will undoubtedly put forward extremely high requirements for the subjective cognition of the criminal subject, which will bring great difficulties to the identification of the crime. The nature of raw materials, on the other hand, is the basis of the rationality and cognitive rationality of the behavior of producers and sellers. Some scholars have even pointed out that when judging the subjective aspect of the perpetrator, the perpetrator only needs to have a general understanding of the harmful consequences of his own behavior, and does not require the perpetrator to have a detailed understanding of the chemical properties and toxicity of the added substances. According to the general theory of criminal law, whether directly or indirectly intentionally, its "knowingly" is the understanding of the harmful result. Knowing should contain two levels of content: the factual level and the value level. The so-called factual level is that the behavior has an understanding of the facts of its own behavior, including the understanding of the nature of the behavior, the way of behavior, the object of the behavior, the time and place of the behavior, the result of the behavior, etc. Specific to this crime, on the factual level, the actor realizes that he is mixing toxic and harmful non-food raw materials into food or selling toxic and harmful non-food raw materials. On the value level, the actor realizes that the behavior of mixing or selling toxic and harmful non-food raw materials will harm the society. In fact, at the factual level, it can be subdivided into the knowledge of "non-food raw materials" and the knowledge of "toxic and harmful", and it is based on the knowledge of "toxic and harmful" that can identify the actor's knowledge at the value level, that is, the actor can come to the conclusion that it may cause harm to the health of others when he recognizes the toxicity, however, the mere understanding of "non-food raw materials" cannot be established as a result of the harm. This crime, as a criminal act, does not require the reality of the harmful results, as long as the perpetrator has carried out the constituent elements of the act can be identified as a crime, and the criminal law can be separated from the harmful results of the actor's behavior to evaluate, it is precisely because of the high degree of closeness of the act and the harmful results and early intervention. Only the behavior can reflect and harm the results of the close correlation can be identified as a crime. If it is only recognized that the incorporation of "non-food raw materials" does not reflect the high correlation between behavior and harmful results, only by recognizing that the incorporation of non-food raw materials is "toxic and harmful" can the behavior and results be demonstrated. High degree of tightness. It should be noted here that the fact that the elements of the act do not contain the harmful result does not mean that the perpetrator is unaware of the result of his act and the nature of the result. If the crime of invading a house is a typical behavior offender, as long as the perpetrator implements the act of invading another person's house, it should be considered a crime, without asking whether the reality has caused damage to the right of tranquility of another person's house, but the perpetrator has obviously realized that what he implements is the act of invading another person's house and this act will affect the tranquility of another person's house. If it does not include knowing the result of the harm, the perpetrator should also be considered a crime if he only visits the owner's home. The main reason why some people question whether "toxic and harmful" should be known as the content of this crime is that if the perpetrator is required to have an understanding of the harmfulness of the result, he will often use this as an excuse to defend himself. I did not realize that my actions would cause consequences harmful to society, which caused difficulties in intentional identification. The author believes that it is difficult to identify in judicial practice as a reason to deny that "toxic and harmful" is not the known content of this crime. First of all, there are many difficulties in the identification of criminal law. For example, what is a dangerous state is still a question of wisdom, and practice and theory cannot be confused. Secondly, intentional identification is a process of unity of subjectivity and objectivity. It is necessary to listen to the perpetrator's justification, but also to judge objectively. The perpetrator's one-sided statement should not be considered to be subjectively intentional, but also to grasp his subjective guilt through the objective aspect. Secondly, it has been discussed in the previous article that only knowing that "non-food raw materials" does not reflect people's understanding of the harmful results of their behavior. Only when they have an understanding of "toxic and harmful" can they be considered to have recognized the social harmfulness of their behavior. Finally, only by recognizing the "toxic harmfulness" can it reflect the greater subjective malignancy of human beings. Knowing that "non-food raw materials" and knowing that "toxic and harmful" is actually a layered relationship. Only when the perpetrator has a second knowing, can his subjective malignancy reach the level of conviction. As for the view put forward by some people, only the actor needs to have a general understanding of the harmful consequences of his own behavior, and does not require the actor to have a detailed understanding of the chemical properties and toxicity of the added substances. If the perpetrator has already been aware of the harmful consequences of his actions, how can he not be aware of the "toxic and harmful" nature of the non-food ingredients he is mixed with? Since it is admitted that the perpetrator should be aware of the harmful results, it is necessary to admit that he knows "toxic and harmful".

2021-12-11

Real estate perspective: the application of the extended period of overdue delivery in the context of the Civil Code.

Presentation of 1. issues In practice, the developer and the buyer signed the "commercial housing sales contract", in the agreed housing delivery period at the same time, in order to avoid the late delivery of the liability for breach of contract, agreed on a fixed period of extension, the developer does not bear the responsibility for late delivery of breach of contract. Before the implementation of the the People's Republic of China Civil Code (hereinafter referred to as the Civil Code), the Intermediate People's Court of Jinan City and the courts under its jurisdiction mostly cited the relevant provisions of the the People's Republic of China Contract Law (abolished, hereinafter referred to as the Contract Law), and tended to think that the agreement on "late delivery of extended period" was legal and effective. The terms on extended period were the agreement of both parties and did not obviously infringe the interests of the buyer, it also does not violate the mandatory provisions of laws and administrative regulations. Both parties shall perform in accordance with the agreement. The starting time for the developer to bear the liquidated damages for overdue house delivery shall be calculated after the expiration of the grace period. However, the Civil Code has made more stringent provisions on the format clause, and will there be a change in the determination of the validity of the late delivery extension period? New Rules on Form Clauses in the Civil Code of 2. Article 496, paragraphs 1 and 2, of the Civil Code Contract Code, respectively, states: "A format clause is a clause that the parties have prepared in advance for reuse and has not negotiated with the other party at the time of the conclusion of the contract." "Where a contract is concluded by standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to remind the other party to pay attention to the terms that have a significant interest in the other party, such as the exemption or reduction of its responsibilities, and explain the terms in accordance with the requirements of the other party. If the party providing the form clause fails to perform its obligation to prompt or explain, resulting in the other party failing to pay attention to or understand the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract." This provision provides for the format clause and the obligation of the party providing the format clause. Compared with Article 39 of the original Contract Law, the following major amendments have been made: 1. After "taking reasonable measures to remind the other party to pay attention to exemption or reduction of its responsibilities", the content of "clauses with significant interests with the other party" is added. This means that the clauses that exempt or reduce the responsibilities of the party providing standard clauses are not the only clauses that need to be reminded of the other party, and other clauses that have significant interests with the other party also need to be reminded. This obviously expands the scope of drawing the attention of the other party, and all clauses that have a major interest in the other party are within the scope of prompting attention. 2, increase the consequences of not fulfilling the duty of care to remind the other party. Article 39 of the original "Contract Law" does not provide for the legal consequences of not fulfilling the obligation to prompt the other party to pay attention, so it is called "soft obligation". This article supplements this by providing the legal consequences of "if the party providing the standard clause fails to perform its obligation to prompt or explain, resulting in the other party failing to pay attention to or understand the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract. To advocate that "clauses that have a significant interest relationship with the other party" do not become an integral part of the contract is tantamount to declaring that it does not exist and has no effect. Such legal consequences are sufficient to warn the party providing the standard clauses to exercise utmost care and protect the other party's rights and interests., Also protect your own rights and interests. 3. This article also adds the "unreasonably" restriction language, increasing the circumstances of mitigation of liability, in other words, must achieve unreasonable exemption or reduction of its liability, increase the other party's liability, in order to make the format clause invalid. On the other hand, "excluding the main rights of the other party" is revised to "restricting the main rights of the other party", and the qualification of "unreasonable" is added. In this way, the limitation of the other party's rights and the exemption or reduction of its liability, increase the other party's liability side by side, constitute the same exemption, that is, any unreasonable exemption or reduction of its liability, increase the other party's liability, limit the other party's main rights, will lead to the invalidity of the format clause. In addition, the Civil Code has also adjusted the reasons for the invalidity of the format clause, mainly reflected in: the party providing the format clause unreasonably exempts or reduces its liability, increases the liability of the other party, and restricts the other party's main rights. These circumstances are not expected by the parties to the contract when they conclude the contract, are contrary to the purpose of the parties to conclude the contract, seriously damage the legitimate rights and interests of the other party, and obviously violate the basic principles of civil law, such as the principle of fairness. Therefore, they are all legal causes that lead to the invalidity of the standard clause. As long as one of the circumstances occurs, the standard clause is invalid. 3. related cases (I) 2021 Lu Minshen 974 Commercial Housing Sales Contract Dispute Judgment of Shandong Higher People's Court: After review, this court believes that the "Qingdao Commercial Housing presale Contract" signed by the buyer and the seller is legal and valid, and both parties should perform their contractual obligations. The "Qingdao Commercial Housing presale Contract" clearly stipulates that the delivery date is before March 31, 2019. The supplementary terms of the contract stipulate that the seller fails to deliver the house to the buyer within the time limit stipulated in this contract due to its own reasons, the buyer shall give the seller A 30-day extension period, during which the contract continues to be performed, and the seller does not need to bear the liability for breach of contract to the buyer. The buyer shall exercise prudent care over the contents of the supplementary clause, and the buyer, as a person with full civil capacity, shall be aware of the legal consequences of its signature on the contract, and the buyer shall not support the claim that the clause is a standard clause and that the seller has not fulfilled its obligation of clear notification and presentation. (II) 2021 Lu 01 Min Zhong 6181 Commercial Housing presale Contract Dispute The judgment of Jinan Intermediate People's Court: The commercial housing sales contract and supplementary agreement signed by the original and the defendant are the true intentions of the parties, and do not violate the mandatory provisions of laws and regulations, and are legal and effective. Both parties should fully perform the contract. In this case, the first item of Article 3, paragraph 8, of Annex 5 to the contract signed by the plaintiff and the defendant stipulated a grace period of 60 days for the seller's specific delivery time. This clause is an agreement between the parties, which does not obviously infringe on the interests of the buyer, nor does it violate the mandatory provisions of laws and administrative regulations, and both parties shall perform in accordance with the agreement. Therefore, the starting time for the seller to bear the liquidated damages for overdue delivery shall be calculated after the expiration of the 60-day grace period. (III) 2021 Lu 0102 Minchu 1295 Commercial Housing presale Contract Dispute The People's Court of Lixia District of Jinan City ruled: The "Jinan City Commercial Housing Sales Contract", "Supplementary Agreement", and "Compensation Confirmation Form" signed by the buyer and the seller are the true intentions of both parties and do not violate the effectiveness of laws and administrative regulations. The mandatory provisions do not violate public order and good customs, and are legal and effective. As a person with full capacity for civil conduct, the buyer is punishing his own rights, and he has not submitted evidence to prove that the seller is in a situation of coercion or taking advantage of the danger of others, so the buyer requires the seller to pay another 90-day penalty, which has no factual and legal basis, and this court does not support it. 4. Lawyer's View The author is inclined to believe that, on the premise that the developer fulfills the obligation to prompt or explain the grace period, the "late delivery extension period" should be considered valid for the following reasons: First of all, before the entry into force of the Civil Code, the Contract Law and its related judicial interpretations contained relevant provisions on standard clauses. Combined with the search of cases before the entry into force of the Civil Code, the determination of "standard clauses" in judicial practice was still With a cautious and conservative attitude, it is determined that the agreement of "late delivery extension period" is legal and valid. The current Civil Code retains some of the provisions of the original Contract Law and related judicial interpretations on "format clauses", and the cases before the entry into force of the Civil Code have certain reference value. For example, in (2021) Lu 01 min zong No. 6177 civil judgment, Jinan intermediate people's court, following the principle of the same case and the same judgment, directly quoted the contents of the judgment of the same court: "regarding the liquidated damages for overdue house delivery, the effect of article 3, paragraph 8, of the supplementary agreement, the civil judgments (2020) Lu 01 min zong No. 9658 and No. 9661 made by Jinan intermediate people's court are as follows: the Supplementary Agreement signed by both parties stipulates a grace period of 60 days for the seller's specific delivery time. This clause is an agreement between the parties, which does not obviously infringe on the interests of the buyer, nor does it violate the mandatory provisions of laws and administrative regulations, and both parties shall perform in accordance with the agreement. Therefore, the starting time for the seller to bear the liquidated damages for overdue delivery shall be calculated after the expiration of the 60-day grace period." Secondly, on the one hand, the Civil Code makes stricter provisions on the standard clauses, but on the other hand, the provisions also add expressions such as "significant interests" and "unreasonable exemption or mitigation". There is no relevant judicial interpretation to clarify how to define "significant" and "unreasonable", which belongs to the discretion of judges in the process of hearing cases. The author believes that the "significant", "unreasonable" and other qualifiers, to a certain extent, can avoid the risk of "exemption is the format clause. Although the "Supplementary Agreement on Commercial Housing Sales Contract" will exempt the developer from the responsibility for breach of contract for overdue delivery of the house to a certain extent, it should not constitute a situation of "unreasonably exempting or reducing its responsibility and increasing the responsibility of the other party. Finally, as far as both parties are concerned, the main contractual obligation of the buyer is to pay the purchase price on time, and the main contractual right is to accept the house according to the contract; as a developer, its main contractual obligation is to deliver the commercial housing that meets the conditions stipulated by laws and regulations according to the contract. The agreement on the leniency period does not invalidate the contract or clause in Chapter 6, Section 3 and Article 506 of Title I of the Civil Code, nor does it increase the buyer's contractual obligations. It only conditionally exempts the developer from part of the responsibility as the seller, rather than completely or indefinitely exempting the developer from the responsibility of handing over the house. At the same time, the clause still stipulates that if the developer fails to hand over the house within the leniency period, the buyer may still be held liable for breach of contract in accordance with the contract and does not exclude the buyer's contractual rights. Therefore, the agreement of the late delivery grace period should not be recognized as the category of the buyer's "main rights", let alone the buyer's "main rights are restricted or excluded". To sum up, the terms of the extension period are the agreement of both parties, which does not obviously infringe on the interests of the buyers. The agreement of the extension period only delays the time for the developer to assume the responsibility of overdue delivery or exempts the developer from the responsibility of overdue delivery. Part of the responsibility, it does not fall under any of the circumstances of "unreasonably exempting or reducing its liability, increasing the liability of the other party, limiting or excluding the main rights of the other party" as stipulated in article 496 of the Civil Code.

2021-12-11

The conclusion that the vehicle inspection after the accident is not qualified is not a cause of exemption from insurance liability.

[brief case]] Zhu Moujia and other three people are the first legal heirs of the deceased in a traffic accident, the insured and driver of an accident vehicle, and the Shanghai branch of a property insurance company is the insurer of the accident vehicle. The traffic police department issued the ''Road Traffic Accident Recognition Letter'', which determined that a vehicle with a certain driving braking performance that did not meet the safety technical conditions and had a safety hazard encountered a pedestrian passing the crosswalk and did not stop to give way; Hou Mouyi did not follow the traffic signal lights. Passing (running a red light), both parties in the accident violated the Road Traffic Safety Law. According to the cause of the accident, it, it, it is determined that both parties bear the equal responsibility for the accident. The plaintiff Zhu Moujia and three others sued to the court, demanding that the Shanghai branch of a certain property insurance company bear the corresponding compensation liability. During the trial, the parties had no objection to the accident and the determination of the responsibility for the accident. The Shanghai branch of a property insurance company argued that it had already delivered the insurance clause to a certain company, and had given this clause a bold and black prompt, and informed the specific content of the exemption clause of a commercial three-way insurance by telephone. According to the aforementioned exemption clause, this case of traffic accident belongs to the situation of "the vehicle is not inspected in accordance with the regulations or the inspection is unqualified". The so-called unqualified inspection includes the unqualified annual inspection of the vehicle and the unqualified inspection after the accident. Therefore, the insurer refuses to bear the commercial insurance limit. Liability. Yu argued that although he had received the insurance clause, the accident vehicle had been inspected annually in accordance with the regulations and passed the annual inspection. There was no problem with the braking of the vehicle before the accident, which was not a case of exemption from insurance liability. He was willing to bear the compensation liability beyond the insurance limit. focus of controversy] Whether this traffic accident is an applicable situation of the commercial three-party insurance exemption clause. The court considered] After hearing, the court held that according to the legal nature of the exemption clause, following the meaning and spirit of Article 15 of the regulations on the implementation of the road traffic safety law, and comprehensively considering other factors such as the legitimate expectation of the insured, the degree of fault of the driver, and the general cognition of the public, the accident in this case does not belong to the case of exemption from insurance liability. The court ruled that the Shanghai branch of a property insurance company should pay the plaintiff 299522.8 yuan for compulsory insurance and commercial insurance. For the insurer's refusal to claim based on the exemption clause of the insurance contract, the trial idea of "from form to reality" and "combination of form and reality" should generally be followed. First of all, in form, it is necessary to examine whether the insurer has fulfilled the obligation of service, prompt and notification of the insurance terms. In this case, the Shanghai branch of a property insurance company has served the insurance terms to the policyholder, in which the exemption clause is also bolded and blackened, and the terms are read out to the policyholder in the form of telephone recording. Therefore, in terms of form, the insurer has fulfilled the corresponding legal obligations. Secondly, in terms of content, the meaning of the contract needs to be interpreted in a manner consistent with the nature of the exemption clause and the legislative intent. According to the insurance clause involved in the case: "When the insured motor vehicle driving license or number plate is canceled in the event of an insurance accident, or fails to inspect or fail to pass the inspection as required" is one of the items exempted from insurance liability. First, as far as the nature of the insurance clause is concerned, it is a form clause provided by the insurer to exempt the insurer from its own obligations, and the understanding of this clause is disputed between the insurer and the policyholder. According to the provisions of the the People's Republic of China Civil Code: if there is a dispute over the understanding of the format clause, it shall be interpreted in accordance with the usual understanding. If there are two or more interpretations of the form clause, an interpretation that is not conducive to the party providing the form clause shall be made. The exemption clause should be interpreted against the insurer. Secondly, in terms of legislative intent, Article 15 of the regulations on the implementation of the Road Traffic Safety Law clearly stipulates that motor vehicle safety technical inspection shall be carried out by motor vehicle safety technical inspection institutions. Based on the meaning of this administrative regulation, the exemption clause refers to "failure to inspect or fail to pass the inspection in accordance with the regulations", which is generally understood to mean that the vehicle is not inspected regularly and in accordance with the regulations to the motor vehicle safety technical inspection institution or the vehicle is inspected by the motor vehicle safety technical inspection institution. The insurer should not make an expansive interpretation of this exemption from its liability after the accident. Third, the insurer should make a substantive and specific detailed description of the content of the insurance exemption clause. Although the insurer orally read out the exemption clause to the policyholder, it did not clearly explain to the policyholder the specific content of the category, subject, method, and time limit of the "inspection according to regulations" referred to in the exemption clause. The insurer shall bear the adverse legal consequences arising from the unclear notification. Finally, in the result, the application of the exemption clause should be consistent with the legitimate expectations of the policyholder and the degree of fault of the actor. In this case, Yu has submitted the accident vehicle for inspection according to regulations and schedule, and passed the inspection. When the accident occurred, it also took the necessary braking measures to actively prevent the occurrence of the accident involved. Although it is recorded in the "Road Traffic Accident Identification Letter" that the braking performance of the accident vehicle does not meet the safety technical conditions and has potential safety hazards, the accident occurred suddenly. It is difficult for a certain vehicle to make accurate self-inspection, evaluation and complete elimination of potential safety hazards in advance. The psychological expectation of taking out commercial triple insurance is also to replace or reduce its own liability for compensation in the event of a traffic accident. Therefore, the exclusion of the aforementioned insurance exemption clause is more in line with the general perception and legitimate expectations of the public. Lawyer Advice] In practice, insurance companies often encounter the need to deal with the customer's vehicle out of danger due to traffic accidents. When making an insurance claim, if it is found that the claim may be "strange" and refused to settle the claim, it is difficult to be identified only on the basis of the "road traffic accident identification" issued by the traffic police department in the lawsuit. Although the ''Road Traffic Accident Recognition Letter'' determines that the accident vehicle does not meet the safety technical conditions and has safety hazards, due to the lack of other evidence to strengthen it, the inspection conclusion after such an accident is usually determined in judicial practice as not belonging to the insurance exemption clause. The situation of "the vehicle is not inspected in accordance with the regulations or the inspection is unqualified. Therefore, in the process of informing the insurer of the relevant exemption clause, the insurance company needs to inform the insurer in detail and comprehensively, and should make a substantive and specific detailed explanation to the policyholder on the content of the exemption clause, and fix and retain the relevant evidence to prevent claims and litigation risks.

2021-12-11

Company Litigation Study... The request of the company's litigation rules for the acquisition of shares disputes.

Foreword Company shares are the shares held by shareholders in the company after the establishment of the company, which play an important role in proving the identity of shareholders. The dispute over requesting the company to acquire shares is a common dispute between the company and its shareholders (especially small and medium-sized shareholders) in practice. It occurs when the shareholders disapprove of the specific resolution of the shareholders' meeting. The purpose is to make the company evaluate the value of the shares held by the dissenting shareholders and purchase them at a fair price. Through this lawsuit, the dissenting shareholders are guaranteed to withdraw from the company in a reasonable and fair way of share compensation, while the withdrawal of dissenting shareholders also improves the efficiency of the company's decision-making and ensures the effectiveness of management. This article will analyze the dispute over the acquisition of shares by the requesting company from the aspects of legal provisions, litigation overview, dispute issues and decision rules for reference. Relevant provisions (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 74 Under any of the following circumstances, a shareholder who votes against the resolution of the shareholders' meeting may request the company to purchase its equity at a reasonable price: (I) the company has not distributed profits to its shareholders for five consecutive years, and the company has made profits for the five consecutive years and meets the conditions for distribution of profits as stipulated in this Law; Merger, division or transfer of main property of the (II) company; (III) the term of business as stipulated in the articles of association expires or other reasons for dissolution as stipulated in the articles of association arise, the shareholders' meeting passes a resolution to amend the articles of association so that the company continues to exist. Within 60 days from the date of adoption of the resolution of the shareholders' meeting, if the shareholders and the company cannot reach an equity purchase agreement, the shareholders may bring a lawsuit to the people's court within 90 days from the date of adoption of the resolution of the shareholders' meeting. Article 142 A company may not purchase its own shares. However, any of the following circumstances shall be excluded: (I) reduction of the company's registered capital; (II) merger with other companies holding shares in the Company; (III) use of shares for employee stock ownership plans or equity incentives; (IV) shareholders request the company to purchase its shares due to their objections to the merger or division resolution made by the general meeting of shareholders; (V) the use of shares for the conversion of convertible corporate bonds issued by listed companies; (VI) listed companies is necessary to safeguard the value of the company and shareholders' rights and interests. Where a company purchases its own shares under the circumstances specified in items (I) and (II) of the preceding paragraph, it shall be subject to a resolution of the general meeting of shareholders; where a company purchases its own shares under the circumstances specified in items (III), (V) and (VI) of the preceding paragraph, it may, in accordance with the provisions of the articles of association or the authorization of the general meeting of shareholders, be resolved by a meeting of the board of directors attended by more than 2/3 directors. After the company acquires the company's shares in accordance with the provisions of the first paragraph of this article, it shall be canceled within ten days from the date of acquisition if it falls under the circumstances of item (I); if it falls under the circumstances of items (II) and (IV), it shall be transferred or canceled within six months; if it falls under the circumstances of items (III), (V) and (VI), the total number of shares of the company held by the company shall not exceed 10% of the total issued shares of the company, and shall be transferred or canceled within three years. Where a listed company purchases its own shares, it shall perform its information disclosure obligations in accordance with the provisions of the the People's Republic of China Securities Law. Where a listed company acquires its own shares due to the circumstances specified in Items (III), (V) and (VI) of the first paragraph of this Article, it shall proceed through public centralized trading. (II) relevant 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 21. Disputes related to the company 268, request the company to acquire shares 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. (I) 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 3 When the plaintiff brings a lawsuit to the people's court on the grounds stipulated in Article 22, paragraph 2, and Article 74, paragraph 2 of the Company Law, if the time limit stipulated in the Company Law is exceeded, the people's court shall not accept it. Provisions issued by regional courts in (III) 1. Opinions of the Higher People's Court of Shandong Province on Several Issues concerning the Trial of Company Dispute Cases (for Trial Implementation) 81. In the case of item (I) of paragraph 1 of Article 75 of the Company Law, if the company has not held a shareholders' meeting for five consecutive years to make a resolution on the distribution of profits, shareholders holding less than one-tenth of the voting rights of the company may request the company to purchase its shares at a reasonable price. 82. If a shareholder files a lawsuit within the time limit specified in the second paragraph of Article 75 of the Company Law, the people's court shall not accept it. 83. If the shareholders require the company to acquire the equity in accordance with the provisions of Article 75 of the Company Law, but there is no consensus on the purchase price of the equity, the people's court shall support the shareholders' claim to determine the purchase price of the equity by way of evaluation. 2. (II) of Opinions of Shanghai Higher People's Court on Several Issues Concerning the Trial of Litigation Cases Involving Companies Issues related to the handling of disputes over shareholders' rights and interests in 3. 3. If the shareholders' meeting of a limited liability company forms a resolution on the merger, division or amendment of the articles of association of the company, and it is difficult to transfer the shares held by the shareholders after the resolution, the shareholders who vote against the resolution at the shareholders' meeting shall have the right to request the company to acquire its shares. If the company has been profitable for many years and meets the conditions for the distribution of shareholders' surplus as stipulated in the Company Law, but the company does not distribute profits, the shareholders who meet the shares of the company as stipulated in the Company Law shall have the right to request the company to convene a shareholders' meeting to make a resolution; shareholders who vote against the resolution at the shareholders' meeting shall have the right to request the company to acquire their shares. 3. Guiding Opinions of the Higher People's Court of Jiangxi Province on Several Issues concerning the Trial of Company Dispute Cases (V) limited liability company share repurchase dispute 66. Under the circumstances of Item (I) of the first paragraph of Article 75 of the Company Law, if the company has not convened a shareholders' meeting for five consecutive years to make a resolution on the distribution of profits, shareholders holding less than one-tenth of the company's voting rights may request The company acquires its equity at a reasonable price. 67. If a shareholder files a lawsuit within the time limit specified in the second paragraph of Article 75 of the Company Law, the people's court shall not accept it. 68. If the shareholders require the company to acquire the equity in accordance with the provisions of Article 75 of the Company Law, but there is no consensus on the purchase price of the equity, the people's court shall support the shareholders' claim to determine the purchase price of the equity by way of evaluation. Other relevant provisions of the (IV) China Securities Regulatory Commission, Guidelines on the Articles of Association of Listed Companies Article 23 A company may purchase its shares in accordance with the provisions of laws, administrative regulations, departmental rules and these Articles of Association under the following circumstances: (I) reduction of the company's registered capital; (II) merger with other companies holding shares in the Company; (III) use of shares for employee stock ownership plans or equity incentives; (IV) shareholders request the company to purchase its shares due to their objections to the merger or division resolution made by the general meeting of shareholders; (V) the use of shares for the conversion of convertible corporate bonds issued by listed companies; (VI) listed companies are necessary to safeguard the value of the company and shareholders' rights and interests. Except in the above circumstances, the company shall not purchase the shares of the company. A company issuing preferred shares shall also specify in its articles of association that the option to repurchase the preferred shares shall be exercised by the issuer or shareholders, and the conditions, price and proportion of the repurchase shall be specified. If the issuer requires the repurchase of preferred shares in accordance with the provisions of the articles of association, it must pay the dividends owed in full, except for the issuance of preferred shares by commercial banks to supplement capital. Summary of Litigation Plaintiff: Shareholder Defendant: Company Jurisdiction: by the people's court of the company's domicile Litigation request: 1. The defendant was ordered to purchase the defendant's shares held by the plaintiff at a reasonable price (subject to the assessed price, tentatively xx yuan). 2, the case acceptance fee, preservation fee and other litigation costs are borne by the defendant. Dispute Issues and Judgment Rules (I) Dispute Question 1: How is the price of the acquisition shares determined? Summary of the problem: According to Article 74 of the Company Law, shareholders should adopt a "reasonable price" when requesting a company to acquire shares, and according to the opposition interpretation of this provision, if shareholders do not adopt a "reasonable price" when requesting a company to acquire shares, the company has the right to refuse the acquisition. However, Article 74 of the Company Law does not further specify how to determine the "reasonable price", from the interpretation of the meaning of this provision, the "reasonable price" should be the price agreed by both parties, but not necessarily the price expressly agreed in the articles of association. For the company and its shareholders, the acquisition price can be called "reasonable" only if it does not harm the legitimate interests of the company or the shareholders, so it is necessary to make a certain balance between the interests of the company and the shareholders. Case: Zhao Zaiyue and Hailisheng Group Co., Ltd. requested the company to retry the civil judgment on the dispute over the acquisition of shares (case No.:(2017) Zhejiang Minzai No. 89; Trial court: Zhejiang Higher People's Court) First of all, Zhao Zaiyue advocates that determining the equity purchase price through third-party financial audit and asset evaluation is not the only way to judge the "reasonable price. If it is sufficient to determine a fair market price based on the circumstances of the case, there is no need to determine the purchase price of the equity by entrusting a third party to conduct an appraisal. Secondly, the reasonable price for the company to acquire the shares of the dissenting shareholders shall refer to the equity value calculated on the basis of the net assets of the company. Under the standard of the company's financial accounting system, the owner's equity in the balance sheet of the enterprise can reflect the real net assets of the company, even if the articles of association of the company do not agree on the purchase price of equity, there is nothing wrong with calculating the purchase price of equity on the basis of the owner's equity at the end of the year. Thirdly, at present, 21 natural person shareholders and 191 members of the shareholding association have accepted the price to transfer their shares, which to a certain extent confirms the true share price of the acquired shares in market transactions. (II) Disputed Question 2: What is the main reference to the transfer of main property under Article 74, paragraph 2, of the Company Law? Problem overview: What is the main property, the company law does not make clear. This leads to the need for judges to judge and identify the "main property" at their discretion in the process of handling specific cases. The discretion of the judge has led to the ambiguity of the criteria for the identification of the main property in judicial practice, and does the transfer of the main property simply refer to the sale? Is it a transfer to set up a company with another person in the form of in-kind capital contribution? It can be seen that Article 74 of the Company Law covers a narrow scope and cannot cover the problems that arise in the real process, such as asset restructuring, asset mortgage and other matters, in which case the interests of small and medium-sized shareholders are harmed, and there are doubts as to whether the provisions on share repurchase apply. In current practice, the court adopts two situations to determine the "main property": one is based on the "quantity" of the transferred property, and the other is based on the "quality" of the transferred property. Case: Zhongshan jielong kitchenware co., ltd. and Peng antao's request for the company to acquire shares (case no:(2016) yue 20 min zong no 4064; Trial Court: Zhongshan Intermediate People's Court of Guangdong Province) The court of second instance held that, first of all, the issue of whether the content of the resolution of the meeting belonged to the "transfer of major property" of Jielong Company. China's company law does not make a clear legal definition of the scope of the "transfer of the main property" of a limited liability company, the Court believes that whether the property transferred by the company is the main property, depending on whether the property transferred by the company affects the normal operation and profitability of the company, resulting in fundamental changes in the company. The business scope of Jielong Company is: production, processing, and sales of kitchenware and sanitary ware, and the content of the meeting resolution shows that Jielong Company "sold the equipment involved in the case to Zhang Hongmei at a price of 170518.46 yuan" and transferred bending machines, Shears, punches, argon arc welding machines, air compressors, wire drawing machines and other main production and operation equipment, not the products in its business scope, the transfer also did not involve the upgrading of the company's production equipment; and, in the second instance, Jielong confirmed that after the equipment involved was sold to Zhang Hongmei in May 2015, Jielong had ceased normal operations. Obviously, the property transferred by Jielong Company has affected the normal operation and profitability of the company, resulting in fundamental changes in the company, which has constituted the "transfer of main property" of the company in Article 75 of the Company Law of China. comment and analysis In practice, the determination of "reasonable price" is generally determined by reference to the fair market price of the acquired shares; when there is no fair market price for the acquired shares, it should be determined by reference to the fair market price of the shares of similar companies; when there is no fair market price for the shares of similar companies, it can be determined by reference to the company's establishment, operating conditions, the market value of the company's realizable assets, the market value of the company's net assets and other factors; in addition, in the absence of relevant factors to refer to, you can apply to an independent third-party audit institution for audit confirmation or apply to the court for judicial confirmation to determine. In addition, for the determination of "transfer of main property", it is more reasonable to take the "quality" of the transferred property as the criterion, that is, a comprehensive examination should be made of the extent to which the assets involved affect the operation, survival and interests of the company and shareholders.

2021-12-11

Viewpoint | A Brief Analysis of the Application of the Right of Residence in Social Life

Since the implementation of the Civil Code this year, the right of residence has been more and more applied to social life. Compared with other systems, the right of residence has strong personal attributes, and the addition of the right of residence system also provides more legal support for people to make rational use of other people's real estate. 1. the Legal Evolution of China's Right of Residence System In 2001, the Supreme People's Court on the application.<中华人民共和国婚姻法>Article 27 of the (I) for the Interpretation of Certain Issues stipulates that "in the event of divorce, one party uses the housing in his personal property to help the person in difficulty, which can be the right of residence or the ownership of the house", and the right of residence was proposed for the first time. In order to solve the housing problem of the party suffering in life; in 2002, the housing right system appeared for the first time in the the People's Republic of China Property Law (Draft for Soliciting Opinions), however, the content of the right of residence was deleted in the subsequent draft review. The Civil Code of 2018 (Exposure Draft) set up the right of residence system, and the Civil Code, which came into effect on January 1, 2021, formally established the right of residence in the form of a code, so that the right of residence system was officially implemented in China. Application Scenarios of 2. Right of Residence After the implementation of the Civil Code, the first residence registration dispute in each province was reported. In social life, the right of residence is increasingly favored by the masses, mainly applicable: 1. In the event of divorce, one party should not only obtain the property right of the house, but also consider giving the other party residence security, so that the right of residence can be established on the house. However, considering that if the right of residence is established as a permanent right of residence, it will inevitably hinder the rights and interests of the owner of the house in possession, use, income and disposition of the house, it is suggested that the actual situation of both parties should be fully considered when establishing the right of residence, a limited term of the right of residence should be agreed, and the agreed conditions for the elimination of the right of residence should be increased, such as the elimination of the right of the right of residence after the other party's remarriage and the child. 2. For the remarried elderly, the establishment of the right of residence can provide protection for the remarried spouse's residence in the real estate, and will not bring about disputes over the ownership of the house, which not only avoids the anxiety of the remarried spouse living without a house, but also realizes the harmony between the remarried spouse and the children. 3. For the elderly without children, by establishing the right of residence, on the one hand, they can ensure their own right of residence, on the other hand, they can obtain certain financial security after the transfer of real estate. The applicable scenarios of the right of residence are diverse and limited to space and are not listed here. The flexibility, exclusiveness and publicity of the right of residence will bring new changes to the life of the masses. The Establishment of 3. Residence Right in Social Life Although the Civil Code provides for the establishment of the right of residence by contract and will, in practice, the right of residence established in the form of legal instruments in force also abounds. The Civil Code provides that the parties to the establishment of a right of residence shall conclude a contract of right of residence in writing. The right of residence is established free of charge and may not be transferred or inherited. The residence with the right of residence shall not be rented out. If the right of residence is established, it shall apply to the registration authority for registration of the right of residence; if the right of residence is extinguished, the cancellation of registration shall be carried out in a timely manner. 1, the establishment of the right of residence by contract. People can establish the right of residence through negotiation in social life. The specific performance is as follows: after the housing property right party determines the ownership of the residence right, it signs the residence right contract with the residence right holder, submits the materials according to the requirements of the real estate registration center, and waits for the examination and approval to issue the certificate. 2, the establishment of the right of residence by will. The Civil Code clearly stipulates that the right of residence can be established by will. However, the narrow sense of testamentary succession only includes legal heirs, and the "Shanghai Real Estate Registration Several Provisions", Jinan City, "on the development of residence registration work notice (trial)" all refer to "the relevant information of the bequest", therefore, the will here should be understood in a broad sense, that is, should include bequests. 3. Establishment of the right of residence by legal instrument in force In practice, the effective legal documents made by the people's courts and arbitration institutions are mainly mediation documents involving the content of the right of residence or the two parties have reached an agreement on the right of residence, and the judgment confirmed by the people's court after one party refuses to perform. The effective legal documents are enforceable. Therefore, it is possible to apply to the real estate registration center for the right of residence registration in the form of effective legal documents. The Significance of the Establishment of 4. Residence Right The establishment of the right of residence fully combines ethics and law, protects the living rights and interests of vulnerable groups, makes the weak have a place to live, and plays an important role in adjusting marriage and family relations and balancing the interests of all parties. The residence right system not only satisfies the subject will of both parties, but also gives full play to the use value of the house, providing a new scheme for effective property distribution. Tips The application for the establishment of the right of residence in Jinan shall be submitted: 1. to set up residence rights on other people's real estate, they can submit an application to the nearby district and county real estate registration centers, or they can apply online through Shandong government service network, love Shandong quancheng mobile phone app, etc; Materials to be submitted for the first registration of 2. residence: 1. If the right of residence is established by contract, it shall be jointly applied by both parties to the contract and shall submit: application for real estate registration (automatically generated by the system), residence contract (with model window), real estate ownership certificate and applicant's identity certificate; 2. If the right of residence is established by will, the parties shall apply unilaterally: it can be handled together with the registration of the transfer of real estate, and the notarized information and identification information such as the notarized certificate of inheritance right and the notarized certificate of acceptance of bequest; 3. If the right of residence is established by the effective legal documents of the people's court and the arbitration institution, the parties shall apply unilaterally and submit: the application for real estate registration (automatically generated by the system), the legal documents made by the arbitration institution of the people's court, and the applicant's identity certification materials; After the 3. residence right is examined and registered, an electronic license will be issued. If you need a paper certificate, you can get it at the window of the nearest real estate registration hall or mail it by the real estate registration center; 4. residence registration is temporarily free of charge.</中华人民共和国婚姻法>

2021-12-10

Point of view... The realization of the priority compensation right of accounts receivable.

Introduction As an important financing method, accounts receivable pledge is widely used in judicial practice and has become a financial innovation tool, which plays an important role in invigorating the stock assets and future assets of enterprises and effectively expanding financing channels. However, the Civil Code does not clearly stipulate the realization of the pledge of accounts receivable, the subject matter of the pledge of accounts receivable is the right to request the payment of a certain amount of money, and it is not easy to convert the auction and sale of accounts receivable into money according to the general realization of the pledge of movable property. As a result, how to realize the priority of the right of payment of accounts receivable has become an unavoidable topic. This paper combs such cases in the light of the Supreme People's Court's adjudication cases, and makes a preliminary discussion on the realization of the pledge of accounts receivable from the perspective of maximizing the interests of creditors. What is Accounts Receivable Article 2 of the Measures for the Administration of Pledge Registration of Accounts Receivable stipulates that accounts receivable refer to the right of the obligee to require payment from the obligor due to the provision of certain goods, services or facilities and other payment claims enjoyed according to law, including existing and future monetary claims, but excluding payment claims arising from bills or other securities, as well as payment claims prohibited by laws and administrative regulations. Thus, for the first time at the departmental regulatory level, accounts receivable include existing accounts receivable and future accounts receivable. Article 440 of the Civil Code stipulates that the following rights that the debtor or a third party has the right to dispose of may be pledged: (1) bills of exchange, promissory notes and cheques; (II) bonds and deposit slips; (III) warehouse receipts and bills of lading; (IV) transferable fund shares and equity; (V) transferable property rights in intellectual property rights such as registered trademark exclusive rights, patent rights and copyrights; (VI) existing and future accounts receivable; other property rights that may be pledged in (VII) with the provisions of laws and administrative regulations. Thus, for the first time, the Civil Code provides at the legal level that accounts receivable include existing and future accounts receivable. The fourth paragraph of Article 61 of the Interpretation of the Guarantee System of the Civil Code stipulates that the people's court shall support the pledgee's request for priority payment of the funds in the specific account when the parties set up a specific account for the accounts receivable and the legal or agreed reasons for the realization of the pledge occur, if the right holder requests priority payment of the funds in the specific account; if the amount in a specific account is not sufficient to pay off the debt or a specific account has not been established, and the pledgee requests a discount or auction or sale of the project proceeds, etc., and the accounts receivable will be paid in priority with the proceeds, the people's court shall support it in accordance with the law. Thus, the Civil Code Interpretation of the Guarantee System will have accounts receivable that include rights to the proceeds of infrastructure and public utility projects, claims arising from the provision of services or services, and other accounts receivable that will be available. The realization of the right of priority compensation of accounts receivable. The Civil Code does not clearly stipulate the way to realize the pledge of accounts receivable, but because the pledge of accounts receivable is a kind of pledge of rights, according to the provisions of Article 446 of the Civil Code, the way to realize the pledge of accounts receivable is applicable to the way to realize the pledge of movable property as stipulated in the second paragraph of Article 436 of the Civil Code, that is, the pledgee and the pledgee agree to discount the pledged property, or priority payment for the price of the proceeds from the auction or sale of the pledged property. This paper is based on the classification of existing accounts receivable and future accounts receivable, and the analysis is as follows: (I) existing receivables At the time of the creation and realization of the existing pledge of accounts receivable, the debtor of the accounts receivable and the subject matter of the pledge have been determined, so the pledgee's right to exercise usually advocates the most advantageous way for it, I .e. to claim priority payment of the accounts receivable and to request the debtor of the accounts receivable to perform the debt directly to it. In judicial practice, the conditions for the exercise of the pledge of accounts receivable have been achieved, and there is no doubt that the pledgee has the right of priority in the payment of the accounts receivable when the period of performance of the debtor of the accounts receivable expires, but there are two main different views on whether the pledgee has the right to directly request the debtor of the accounts receivable to pay the accounts receivable directly to itself: Viewpoint 1: The right holder has the right to require the accounts receivable debtor to pay the accounts receivable to himself (the current mainstream view of judicial practice) (2019) Supreme Law Civil Final No. 1023 Qingdao Qinlu Hailian International Trade Co., Ltd., China Development Bank quality dispute second instance civil ruling on the quality of the right of the right to exercise the right of accounts receivable can require the debtor of accounts receivable to pay the corresponding amount. Our law does not provide for the specific realization of the right of accounts receivable. Since the subject matter of the pledge of accounts receivable is limited to monetary debts, the pledgee has the right to directly require the debtor of the accounts receivable to pay the corresponding amount when exercising the pledge, without the need for a discount, auction or sale. Viewpoint 2: The pledgee has no right to require the accounts receivable debtor to pay the accounts receivable to itself (2017) Supreme Famin Shen No. 1572 Overseas Chinese Yongheng Bank (China) Co., Ltd. Guangzhou Zhujiang New Town Sub-branch, Yantai Fengcai Packaging Co., Ltd. (formerly Yantai Haierfengcai Packaging Co., Ltd.) Financial Loan Contract Dispute Retrial Review and Trial Supervision Civil Ruling Letter Civil Judgment Letter The legal relationship between the pledgee and the creditors of accounts receivable pledge is formed, because the accounts receivable creditor did not assign its claim to the accounts receivable debtor to the pledgee, and there was no direct debt and debt relationship between the pledgee and the accounts receivable debtor, the pledgee did not have the right to request the accounts receivable debtor to pay the accounts receivable directly to it. Lawyer's point of view: based on the monetary creditor's right attribute of accounts receivable, the pledgee notifies the accounts receivable debtor of the establishment of the pledge of accounts receivable, and after obtaining the confirmation of the authenticity of the accounts receivable debtor, once the exercise conditions of the pledge of accounts receivable are fulfilled, the pledgee has the right to require the accounts receivable debtor to directly pay the accounts receivable to itself and enjoy the priority of compensation for the accounts receivable. This not only avoids the cumbersome procedures of discount or auction and sale required to realize the pledge of accounts receivable, reduces the exercise cost of the right holder, but also helps to speed up the settlement of disputes between the parties. (II) will have a way of realizing accounts receivable Supreme People's Court Guidance Case No. 53 The right to the proceeds of the sewage treatment project belongs to the future monetary claim, and the right holder may request the court to order it to collect the money directly from the debtor of the quality person and exercise the right of priority compensation for the money, so there is no need to take the way of discount or auction or sale. Moreover, the right of income is accompanied by a certain burden, and its business entity has a specific nature, so according to its nature, it is not appropriate to auction, sell. Therefore, the pledgee has the right to collect sewage treatment fees directly from the franchisee in accordance with the agreement, and to exercise the right of priority compensation for the sewage treatment service fees collected. After the publication of Guidance Case 53, it was widely interpreted as the pledgee of accounts receivable could claim rights directly against the debtor of the accounts receivable. A different view is that the subject matter of the pledge in Guidance 53 is the right to the proceeds of the franchise, which is different from the accounts receivable, and that there is no basis for extending the use of such cases to all accounts receivable pledge cases. Lawyer's point of view: In view of the franchise revenue rights involved in the 53 guidance case, the court in the reasons for the decision on the "franchise pledge guarantee agreement" agreed to the pledge subject matter as follows: "the sewage treatment project franchise is the right to operate and maintain the sewage treatment plant, and to obtain the corresponding income. The operation and maintenance of the sewage treatment plant is the obligation of the operator, and its right of income is the right of the operator. Since the operation and maintenance of the sewage treatment plant is not a transferable property right, the pledge of the sewage treatment project franchise right in dispute is essentially the pledge of the sewage treatment project income right." After clarifying the pledge target, the court compared the franchise income right involved in the case with the highway toll right, and held that "although the laws, administrative regulations and relevant judicial interpretations at that time did not stipulate that the sewage treatment project income right can be pledged, however, the right to income from sewage treatment projects is similar in nature to the right to income from roads.... the highway income right belongs to other rights that can be pledged according to law, and the similar sewage treatment income right should also be allowed to be pledged". therefore, although the enterprise management right and various franchises can also generate expected income, they do not have the nature of accounts receivable and cannot be pledged as accounts receivable, but the resulting toll right, that is, its exercise period and the amount of income can be determined, it is a defined property right ...... by its nature can also be included in the category of "accounts receivable" that can be pledged by law. Thus, the franchise proceeds rights involved in Guidance Case 53 are in the nature of accounts receivable, and the rules for the realization of their rights may be applied to other accounts receivable pledge cases by reference. Lawyer Advice 1. It is recommended that priority be given to pledging accounts receivable whose amounts have now been determined and whose liquidation period has expired, and that the pledgee and the sub-debtor jointly confirm them. If only future accounts receivable can be pledged, a pledge of rights not expressly provided for by law should be prudently established in accordance with the principle of property law. 2. The parties set up a specific account for accounts receivable The parties shall set up a specific account for the stolen money receivable. According to the fourth paragraph of Article 61 of the Guarantee Interpretation of the Civil Code, when a party sets up a specific account for accounts receivable and a legal or agreed reason for the realization of the pledge right occurs, the pledgee has the right to request priority compensation for the funds in the specific account. If the funds in the specific account are not enough to pay off the debts or no specific account has been set up, the pledgee has the right to request for discount or auction or sell the future accounts receivable, and to be paid in priority at the price received. 3. When the pledgee files a lawsuit to realize the pledge, the debtor of the accounts receivable may be listed as the defendant to sue, and the debtor of the stolen money receivable shall be required to pay the relevant amount directly to the pledgee shall be clearly listed as the claim. 4. The court decided to confirm that the pledgee has the right to receive priority compensation after the auction, sale price or discount of the accounts receivable. It is difficult for the pledgee to apply to the court for direct enforcement of the accounts receivable debtor. Usually, the pledgee needs to file a separate suit of subrogation against the accounts receivable debtor, thus requiring the accounts receivable debtor to perform its debts.

2021-12-10

Viewpoint | Research on the practice of adjusting workers' jobs in units

Job changes include changes in job content and workplace. Changes in job content and workplace are sensitive to both employers and employees and must be treated with caution. 1. employers to change their jobs should comply with the law. If the employer proposes to change the work content and location due to work needs or personal reasons, both parties shall fully communicate and negotiate. If it is difficult to reach an agreement, the labor contract may be terminated or terminated according to law. The adjustment of work positions must be negotiated amicably between the two parties in terms of procedures, and the labor remuneration of workers should not be reduced under the same or optimized working conditions. However, in practice, in order to force the laborer to propose to terminate the labor contract, some employers unilaterally change the laborer's work location or work content, or change their jobs on the grounds that the so-called laborer is unqualified. Illegal behavior. In practice, there are not many disputes about the changes in the work content, mainly the changes in the work place. According to Article 17 of the Labor Contract Law, the place of work is one of the necessary provisions of the labor contract. How to negotiate and agree on the "work place" in the labor contract, there are roughly three situations in practice: one is the precise agreement, such as a certain street in a certain district, a certain building and a certain room. The precise workplace agreement is in line with the legislative purpose of the Labor Contract Law on the necessary provisions of the workplace; the second is the general agreement, such as a city, a district, the whole country. The broad agreement is obviously an unclear agreement. In this case, it is generally believed that if the employee has worked at an actual work place after the labor contract is signed, the actual work place shall be regarded as the specific work place determined by both parties. The enterprise shall not change the employee's workplace at will on the grounds of such broad workplace agreement. Three is the authorization of the agreement. There are two types of authorization agreements:(1) conditional obedience type, that is, the enterprise can adjust the work place and post of employees according to the needs of production or operation, and the employees should obey:(2) unconditional obedience type, that is, the enterprise can adjust the work place and post of employees according to the needs of production or operation, and the employees should obey unconditionally. The conditional obedience agreement has a certain rationality, but it does not mean that the enterprise can abuse the authorization of the labor contract and arbitrarily adjust the employee's workplace. In other words, when an enterprise adjusts or changes the employee's workplace according to the authorization of the labor contract, it needs to prove that the change of workplace is reasonable, and only a simple "production and operation needs" is not a reasonable reason. In addition, if an enterprise adjusts or changes an employee's workplace, it also needs to consider whether it increases the difficulty or burden of the employee's performance of the labor contract, whether it affects the employee's life, and whether the enterprise has taken reasonable remedial measures. For the unconditional obedience type of agreement, it is precisely in line with the labor contract terms invalid situation. According to the provisions of Article 26 of the labor contract law, the labor contract that the employer exempts itself from its legal responsibility and excludes the rights of workers is invalid or partially invalid. 2. workers should have a correct understanding of the employer's job changes Article 29 of the "Labor Contract Law" stipulates that the employer and the employee shall fully perform their respective obligations in accordance with the labor contract. The employer exercises the autonomy of operation and management due to the adjustment of production structure and business scope or changes in the external market, and makes appropriate adjustments to the positions of workers under the premise of legality and reasonableness. Workers should cooperate with this. If workers have objections to the adjustment of their jobs, they should be resolved through consultation, and should not resist or confront them in a passive manner. Even if there are some differences between the new post and the original post, as long as there are no major differences, workers should adapt to the new post through learning and training, and should not resist on the grounds that they are not competent. In practice, employers exercise their operational autonomy to adjust the organizational structure. As long as they do not maliciously transfer posts against individuals, do not unilaterally designate adjusted jobs, and do not explicitly reduce wages, it should be regarded as a reasonable adjustment of jobs by employers. At this time, workers know that they should but insist on not going to work at the place designated by the company, which obviously violates the duty of diligence and loyalty that a worker should perform to the employer, it also violates the bottom line of professional ethics as a worker. It is the duty of the laborer to follow the basic work discipline of the employer. Although the law protects the legitimate rights and interests of the laborer, it does not condone the laborer to do whatever he wants.

2021-12-09

Viewpoint | Gambling Agreement "Past and Present"

Foreword According to the definition of the "Jiumin Minutes", a gambling agreement refers to an agreement designed to solve the uncertainty, information asymmetry and agency cost of the target company's future development between the investor and the financier when they reach an equity financing agreement. It includes equity repurchase, monetary compensation and other adjustments to the valuation of the target company in the future. It is essentially an option. Since Mengniu Dairy signed the first domestic gambling agreement with investment institutions such as Morgan Stanley in 2003, this equity financing method has become a popular method of financing for Chinese companies, but there are frequent debates about the origin of the gambling agreement. The purpose of this paper is to trace the gambling agreement and briefly analyze its localization rules. The origin of the 1.-to-gambling agreement. China's commonly known as the gambling agreement, also known as the valuation adjustment agreement (Valuation Adjustment Mechanism, "VAM"). Perhaps because the domestic first seen in the investment agreements of foreign investment institutions such as Morgan Stanley, the domestic view of gambling agreements is a common means of financing overseas. However, in the overseas literature database, there are few related articles and cases Valuation Adjustment Mechanism, and most of them are created by domestic scholars and law firms. At the same time, as cross-border investment and financing become more mature, many people recognize that gambling agreements are localized innovations made by foreign investment institutions for domestic companies based on profitability payment plan clauses, anti-ratchet clauses, etc. The offshore financing provisions related to this, while similar in appearance, are quite different in nature. (I) Profitability Payment Plan Terms Profitability payment plan, that is, the earn out clause, refers to the process of financing mergers and acquisitions, the transaction price reached by both parties according to the seller's enterprise's profitability and other ability to float, that is, in the process of mergers and acquisitions, the target company's future earnings, cash flow and other financial indicators as the premise, set up a phased, hierarchical capital injection. A simple model is: The parties enter into a financing or merger agreement, 1. Pay 1 million yuan in cash when the agreement is reached; 2. Within 1 year after the agreement is reached, if the seller's revenue exceeds 700000 yuan, the buyer will pay 1 million yuan for the second payment, and if it does not exceed 700000 yuan, the buyer will pay 500000 yuan; 3. In the second year of the agreement, if the seller's revenue exceeds 1 million yuan, the buyer will pay 500000 yuan for the third payment, and if it does not exceed 1 million yuan, the buyer will not pay the third financing. The profitability payment plan is significantly different from the gambling agreement. Profitability payment plans are where the buyer delays payment to the seller, so they are mostly used for corporate mergers and acquisitions, while gambling agreements are where the investor provides financing to the founder and then requires the founder to buy back the shares or return the financing after the agreed conditions are fulfilled. Types of domestic gambling agreements in (II) 1. Compensatory gambling Compensation is the requirement that the founder compensate the investor for the expected return on investment according to a certain formula after the conditions of the bet have been fulfilled, but the investor's share in the business itself will not be reduced. Compensation can be in the form of cash or equity. The former reduces the investor's risk exposure to the business and realizes part of the investment income when you get cash, while the latter increases the investor's risk exposure to the business, and the volatility of investor returns is more closely linked to the business performance of the business. Although the investor in the compensatory gambling agreement does not withdraw from the financier's company, the cash compensation clause will affect the company's cash flow and damage the partnership between the investor and the financier. The investor's legacy equity may not work, so cash compensation often appears with exit redemption clauses. 2. Redemption gambling. The founder redeems the shares to the investor at a certain price after the conditions of the bet are fulfilled. This is also the most common domestic gambling agreement. Equity redemption is a mature path for PE exit, and most of the domestic equity redemption requires the founder to redeem at a premium, which undoubtedly increases the expected return of investors. Redemption rights are regulated in all countries and are gradually opening up, provided that the capital of the enterprise is maintained. 3. Other types of gambling agreements In addition to the two common types of bets mentioned above, there are equity dilution and equity priority. The former requires that when the conditions of the bet are fulfilled, the financier issues a portion of the shares to the investor at a very low price, while the latter requires that when the conditions of the bet are fulfilled, the financier acquires specific rights such as the right to preferential distribution of the remaining property. In contrast, there are also, but rarely, situations in which the investor rewards the financier additionally when the gambling conditions are fulfilled. 2. the rules of the gambling agreement. (I) the main body of our gambling agreement. One of the parties to the gambling agreement is the investor. This investor is mostly a financial investor, I .e., for the purpose of financial gain and generally does not interfere with the company's operations. The other party may be the target company, the target company's shareholders or actual controllers, and the target company's management. However, because China is still under the statutory capital system of shareholder centralism, management can not properly handle the company's equity affairs in a timely manner, so the gamblers are mostly the first two situations. However, in cross-border investment and financing mergers and acquisitions, the management of foreign companies is very independent. On the one hand, they are the people who best understand the actual value and potential of the company, and on the other hand, the interests of management and shareholders are often not aligned. Although the management of domestic enterprises is still in the stage of subsidiary to shareholders, with the increasing maturity of the business environment, its independence will be greatly enhanced. Therefore, both investors and shareholders must not ignore management's views on the gambling agreement. (II) the validity of our gambling agreement. According to the relevant provisions of the Ninth Minute, the validity of the gambling agreement varies depending on the subject of the gambling party. The gambling agreement signed between the investor and the shareholder or actual controller of the target company shall be deemed valid and support the actual performance if there is no other invalid cause. In the case of a gambling agreement between the investor and the target company, the shareholders, who are required to comply with Article 35 of the Companies Act, may not withdraw their capital contributions. For monetary compensation-type gambling agreements, the order of profit distribution shall be in accordance with Article 166 of the Company Law, and for equity repurchase-type gambling agreements, the procedures of Article 142 of the Company Law shall be followed to complete the capital reduction procedures. In addition, foreign-related gambling agreements often require the approval of foreign investment departments, and those without approval also have the legal risk of invalidity. (III) the legal risk of China's gambling agreement. The first is the listing risk. In September this year, the CSRC called for the listing of many enterprises with gambling agreements to be suspended. The move is intended to further regulate the disclosure requirements of gambling agreements. Generally speaking, the issuer is required to clean up the gambling agreement before filing, and the conditions for exemption from liquidation are very stringent, so it is best to set up the subject of the gambling agreement as the shareholder or actual controller of the target company, so as not to affect the operating ability of the target company's equity structure. The second is the risk of the company's ability to operate. China's high pressure on gambling agreements often requires the company's shareholders and management to have a very clear understanding of the company's ability to operate and future business strategy, otherwise there may be a company's cash flow fracture, loss of control and even inability to repay and other major risks. Therefore, it is very important to set up a reasonable gambling structure and determine the rights and obligations of both parties, so as to prevent angel investors from turning into "barbarians" at the door ". Conclusion Financing has always been an important issue that enterprises cannot avoid. The original intention of venture capital should be to help start-ups turn ideas into products, quickly put them on the market, and then iterate and upgrade products based on user feedback, which is a process of constant "trial and error. As a form of financing, the cost of failure is too harsh to make the gambling agreement quite unfriendly to the financier, but in China's current buyer-led capital market system, the gambling agreement is so popular there is a reason. Therefore, it is necessary to pay attention to its legal risks, use the financing function of the gambling agreement for development and innovation, use its exit mechanism as a driving force, and make good use of this double-edged sword.

2021-12-09