Viewpoint | Practical Analysis of the New Measures for the Administration of Corporate Bond Issuance and Trading

为贯彻落实《证券法》和《国务院办公厅关于贯彻实施修订后的证券法有关工作的通知》，规范公司债券的发行、交易或转让行为，保护投资者的合法权益和社会公共利益，加强事前事中事后监管，2021年证监会修订发布《公司债券发行与交易管理办法》（第180号令，2020年8月7日发布征求意见稿）。该文件根据《证券法》的要求（如落实公司债券的注册制、将证券服务机构从事证券服务业务由行政许可调整为备案管理），并结合“取消强制评级要求、严禁结构化发债等自融行为、规范承销机构的承销业务行为,严禁发行人、控股股东、实控人和董监高的逃废债行为、调整普通投资者参与公募公司债券的条件、加强债券持有人权益保护”等新变化，对证监会113号令进行修订。本文拟以上述新变化为切入点并结合本律师已承办的数十支公司债券交易纠纷案件经验，对《公司债券发行与交易管理办法》修订版（以下简称《管理办法》）中的实务难点进行梳理并解析，一窥未来公司债券市场归位尽责的新秩序。     一、弱化外部评级依赖：取消强制评级要求   债券市场出现危机以来，降低外部评级依赖已是市场共识。针对我国信用评级行业存在评级虚高、区分度不强等“重市场份额、轻评级质量”的问题，降低对外部信用评级依赖亦成为政策层面需要考量的因素。其中，2020年11月中旬相继发生的河南永煤、华晨汽车、清华紫光以及河北冀中等多家AAA级国企违约事件亦强化了这一导向。   《管理办法》删除了原第十九条关于公开发行公司债券应当委托资信评级机构进行信用评级的条款内容，同时还删除了普通投资者参与公募公司债券的评级要求（以往普通投资者只能认购AAA级公募公司债券），实际上确立了交易所市场公开发行公司债券将全面取消强制评级的新秩序。   取消强制评级要求有以下好处，首先，可以促进资信评级市场实现有序竞争和良性循环，改变评级机构一味抢市场而忽视评级质量，以级定价、以价定级、评级虚高、评级结果经不起市场检验，评级调整滞后等问题，有助于恢复行业公信力；其次，弱化投资人对外部评级的依赖，增强市场导向也符合国际趋势，将有望促进评级回归揭示风险、市场合理风险定价的本源。   但取消强制评级要求也会带来相应的挑战。从监管层面而言，不排除发行人自身信用良莠不齐导致审核机构的审核压力增加而出现挂一漏万的情形。从投资者角度分析，《管理办法》实施后投资者将会面临外部评级结果缺失的可能性，由此也会导致投资者追偿发行人的诉讼/仲裁案件中丧失可以证明发行人存在违约行为及偿债能力不足的有利证据，这对投资者而言并不十分有利，需要搜集或组织其他证据链予以弥补缺失。无论政策执行效果如何，笔者都建议投资者（尤其机构投资者）从现在开始建立一套弱化外部评级依赖的内部信评标准或咨询专业的律师团队进行风险评估。     二、加强监管力度：严禁结构化发债等自融行为   结构化发债是在去杠杆和强监管的背景下，在部分市场主体通过债券市场融资较为困难的情况下出现的一种诡异现象，其本质是发行人、承销机构等为提高债券发行成功率而自行或通过其他方式认购自身发行的债券。结果上看，结构化发债等自融行为使得债券的票面利率难以真实反映市场定价情况，破坏了融资的“直接”属性及市场秩序，且在后续的债券违约追责过程中，发行人可利用“两张脸”所扮演的不同角色，促使持有人会议陷入困局，造成严重的不良后果。   为此，《管理办法》第四十五规定：“发行人和承销机构不得操纵发行定价、暗箱操作；不得以代持、信托等方式谋取不正当利益或向其他相关利益主体输送利益；不得直接或通过其利益相关方向参与认购的投资者提供财务资助；发行人不得在发行环节直接或间接认购其发行的公司债券。发行人的董事、监事、高级管理人员、持股比例超过百分之五的股东及其他关联方认购或交易、转让其发行的公司债券的，应当披露相关情况”。   笔者认为，上述规定在制度上虽明确了打击结构化发债的态度，但实际执行过程中能否做到，除了靠发行人等主体的自律外，更依赖债券受托管理人在债券存续期内重点监控。持有人可扮演“黄雀”的角色，盯紧债券受托管理人，重点可以从受托管理人是否已勤勉尽责地履行管理人义务和管理人是否已及时履行披露义务与处理利益冲突等方面来进行证据搜集，以压实机构责任的方式来维护自身合法权益，具体可以侵权之诉、违约之诉或证券虚假陈述之诉来进行追责（需根据实际案情及相关证据来具体判断）。但上述追责不同于公司债券违约纠纷中债券持有人直接起诉发行人的债券违约兑付本息责任案件，而是属于由实际出资人向资产管理人、受托管理人等主体主张过错赔偿责任案件，这在资本市场纠纷中鲜有成功案例，究其原因还是因为相关证据收集及因果关系认定方面存在困难，而债券持有人受限于知识、经验和手段等各方面的因素影响，很难发现受托管理人的违规行为，仅依靠持有人自有能力维权，难度较大。     三、归位尽责：规范承销机构的承销业务行为   承销机构为冲击债券市场业绩，做大承销规模，低价投标是近年的常态，该现象严重扰乱了承销市场秩序。为此，《管理办法》重点从两个方面做出了规定：   1.要求建立内部问责机制，规范过度激励与低价竞争等不规范承销行为；   2.要求主承销商承担更高的尽调和复核责任，并按照合理性、必要性和重要性原则，对公司债券发行文件的真实性、准确性和完整性进行审慎核查，并确认发行文件披露的信息不存在虚假记载、误导性陈述或者重大遗漏。   事实上，2020年12月4日，交易商协会便已经发布《非金融企业债务融资工具主承销商尽职调查指引》，与《管理办法》的规定相辅相成。笔者认为，承销机构若可以归位尽责，投资者便可多一份保障，对投资者最长情的告白便是承销商真诚的陪伴。当然，持有人若没有这份陪伴甚至还可能被承销机构伤害，也不用怨天尤人。   近年来，债券违约处置已成为司法部门和监管部门的关注重点，且关注点已不仅局限于发行人，实际已转移至承销商等中介机构。2020年12月31日，杭州市中级人民法院对“五洋债”欺诈发行案作出一审判决，要求债券承销商等中介机构向债券投资者承担连带赔偿责任。由此，不仅醍醐灌顶给承销商等机构好好的上了一课，更为投资者指明了另一条维权之路—向债券承销商等证券服务机构来进行追责。因在证券发行过程中，多数承销商即是该证券的受托管理人，二者存在身份竞合的情形，由此，关于承销商的追责问题，上文已提及，于此不再赘述。只提示一点，持有人如发生相关损失，也可以重点关注会计师事务所、资信评级机构、律师事务所的尽职履责情形，根据《证券法》及《虚假陈述若干规定》中的规定，会计师事务所、资信评级机构、律师事务所都有可能成为欺诈发行、虚假陈述的责任主体，投资者可以通过民事行为、行政手段，甚至通过刑事责任追究等方式来维权。     四、零容忍：严禁发行人、控股股东、实控人和董监高的逃废债行为   2020年11月中旬，河南永煤控股债券违约引发的信用债风暴，注定会成为中国债券违约历史上的一个标志事件，其会逐渐拉开国企债券违约常态化的序幕，亦有望推动国内违约和破产清偿制度的完善。由此，该事件的后续处理，将关乎信用债市场的信用根基。2020年11月21日，中国政府网公告：国务院副总理、国务院金融稳定发展委员会主任刘鹤主持召开金融委第四十三次会议，研究规范债券市场发展、维护债券市场稳定工作。重点提到：秉持态度，维护市场公平和秩序。要依法严肃查处欺诈发行、虚假信息披露、恶意转移资产、挪用发行资金等各类违法违规行为，严厉处罚各种“逃废债”行为，保护投资人合法权益。   还有其他内容，笔者不再一一转述，传达出来的意思很明显，虽是凭本事借出来的钱，但也不能靠厚脸皮赖账，更不能出歪招逃废债。这次要重点整治几家企业，如对华晨集团的立案调查，就是对恶意逃废债的一次正面回击，不是破产就可以逃之夭夭的。关于此，笔者所在团队感触颇深，团队已代理的多支债券案件中，实际已将发行人的主要资产进行了保全（部分案件为全额首封），并通过精细化的庭审准备，获得了胜诉裁决/判决，本可全额拿回应得的财产，但何曾想，发行人总是翻箱倒柜拿出“破产”这道令牌，使得团队多数的努力付之东流。   由此，整治逃废债行为已是迫在眉睫，《管理办法》主要是从“内部人员”法定义务的强化方面来进行治理，如发行人及其控股股东、实际控制人等责任主体存在《管理办法》中所禁止的行为或违反规定的，持有人便不仅可以对发行人进行追责，更可撕破“面纱”，直接追究责任人员的连带侵权责任，要求其赔偿损失。强化措施主要体现在：   1.发行人及其控股股东、实际控制人应当诚实守信，发行人的董监事、高级管理人员应当勤勉尽责，维护债券持有人享有的法定权利和债券募集说明书约定的权利；不得怠于履行偿债义务或者通过财产转移、关联交易等方式逃废债务，蓄意损害债券持有人权益；   2.发行人的董事和高管应当对公司债券发行文件和定期报告签署书面确认意见；   3.监事会应当对公司债券发行文件和定期报告进行审核并提出书面审核意见，监事应当签署书面确认意见。   4.发行人及其控股股东、实际控制人等违反本办法规定，损害债券持有人权益的，中国证监会可以对直接负责的主管人员和其他直接责任人员采取责令改正、监管谈话、出具警示函、责令公开说明、责令定期报告、警告、罚款等相关监管措施，依法应予行政处罚的，依照规定处罚；涉嫌犯罪的，依法移送司法机关，追究其刑事责任；   5.发行人及其控股股东、实际控制人、董监事、高级管理人员有逃废债行为的，中国证监会可以依法限制其市场融资等活动，并将其有关信息纳入证券期货市场诚信档案数据库；   6.发行人的控股股东滥用公司法人独立地位和股东有限责任，损害债券持有人利益的，应当依法对公司债务承担连带责任。   上述治理手段能否有效，有待观瞻，最后说一下什么叫“逃废债”？   逃废债属于民事违约行为，不是所有的欠债不还都是逃废债，它主要强调债务人的主观故意。确切的说，有履行能力而不尽力履行债务的行为就是逃废债。从债务人主观上来看，逃废债有两种表现形式：一种是积极的逃避履行债务，我们通常称之为“恶意逃废债”；另一种是消极的不履行。经笔者所在团队已办理的案件分析，逃废债通常有以下手段：   1.恶意隐匿、转移、无偿或不合理低价转让资产； 2.为逃避债务出逃境外； 3.以虚假破产方式金蝉脱壳； 4.以改制、重组、分立、解散等方式剥离有价值资产； 5.通过关联交易抽逃出资、转移利润、转移资产； 6.通过“换牌子”经营来金蝉脱壳； 7.以虚假租赁阻碍执行； 8.以虚假诉讼阻碍拍卖或参与分配； 9.未经债权人同意，擅自处置、毁损抵押资产； 10.恶意为他人提供担保，影响其自身偿债能力； 11.拒不申报财产或虚假申报； 12.借被吊销营业执照之机逃债。   逃废债手段不止上述12种，但破解方法往往可以通用，具体如何破解，且听下回分解。     五、老生常谈：债券持有人权益保护   笔者对前述《管理办法》中的新变化均持肯定态度，但对于《管理办法》中债券持有人权益保护部分，明显感觉力度不够，甚至有“换汤不换药”之感。先说下新变化，主要体现在两个方面：   1.《管理办法》根据财产状况、金融资产状况、投资知识和经验、专业能力等因素，将公司债券投资者分为普通投资者和专业投资者，落实了《证券法》的相关规定，进行适当性的区分有利于更好的解决日后投资者与证券公司产生纠纷后的举证责任分配问题，具有重要意义；   2.调整了普通投资者可参与认购交易公募债券的要求。新《管理办法》在原《管理办法》基础上，增加了向普通投资者公开发行债券的两项条件—“发行人最近一期末净资产规模不少于250亿元”和“发行人最近36个月内累计公开发行债券不少于3期，发行规模不少于100亿元”，删除了原“债券信用评级达到AAA级”的要求。该变化

2021-12-09

The distribution of leaflets by insurance companies does not constitute the obligation to fulfill the reminder.

[brief case]] Liang and Chen took out campus insurance for their daughter Xiao Liang to an insurance company through the school. During the insurance period, Xiao Liang died of illness, so Liang and Chen asked an insurance company to pay insurance money. An insurance company believes that the medical records show that trabecular has been suffering from illness before the insurance, according to the insurance contract, it does not need to pay insurance money. There is a dispute between the parties as to whether an insurance company has fulfilled its obligation to advise on the exemption clause. An insurance company claimed that it had fulfilled the obligation of prompt explanation by distributing leaflets to parents through the school before underwriting, but Liang and Chen did not confirm this. The people's court held that the main purpose of an insurance company's distribution of leaflets through schools was to attract parents of students to take out insurance. The nature of the leaflets was similar to advertisements and did not belong to the scope of insurance certificates. There was no hint on the leaflets that parents should pay attention to the contents of the exemption clauses, and an insurance company did not explain the exemption clauses in other ways, therefore, the leaflet alone can not prove that an insurance company on the exemption clause to fulfill the obligation to explain the obligation, the judgment of an insurance company to Liang, Chen Mou to pay insurance money. focus of controversy] Whether an insurance company has fulfilled its obligation to clearly explain to the policyholder the exemption clause involved in the case, and whether the policyholder has intentionally or due to gross negligence failed to fulfill the obligation of truthful disclosure. The court of first instance held that] The Court believes that: Liang, Chen as the legal guardian of trabecular to an insurance company to insure students, children safe personal accident insurance, and an insurance company to collect insurance premiums, so the two sides set up a life insurance contract relationship in accordance with the law. Both parties have no objection to the fact that the insured trabecular had a past medical history before the insurance and trabecular spent a total of 117979.99 yuan on medical expenses before his death due to illness, which was confirmed by our hospital. According to the arguments of both parties, the focus of the dispute in this case is whether an insurance company has fulfilled its obligation to clearly explain the exemption clause involved in the case to the insured. In this regard, the court believes that the second paragraph of Article 17 of the the People's Republic of China Insurance Law stipulates that for the clause in the insurance contract that exempts the insurer from liability, the insurer shall make a sufficient statement on the insurance policy, insurance policy or other insurance certificate when concluding the contract. Prompt to attract the attention of the applicant, and make a clear explanation of the content of the clause to the applicant in written or oral form; if there is no prompt or clear explanation, the clause, the clause shall not. Article 11 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Insurance Law stipulates that when an insurance contract is concluded, the insurer shall exempt the insurer from liability in the insurance contract on other insurance documents such as the application form or insurance policy. The clause is prompted by words, fonts, symbols or other obvious signs sufficient to attract the attention of the applicant, the people's court shall determine that it has fulfilled the reminder obligation stipulated in the second paragraph of Article 17 of the Insurance Law. Where the insurer provides an explanation in writing or orally to the insured of the concept, content and legal consequences of the clause in the insurance contract relating to the exemption of the insurer's liability, the people's court shall determine that the insurer has fulfilled the obligation of clear explanation stipulated in the second paragraph of Article 17 of the Insurance Law. In this case, an insurance company claimed that the insurance policy involved in the case made it clear that the insurer would not be liable for the death caused by the disease and its complications that existed before the insured was insured, and that the insurer would not be liable for the payment of insurance benefits. It also indicated in the leaflet issued to the parents of the students that "the diseases, congenital diseases, hereditary diseases and their complications that had been suffered before the initial insurance shall not be liable for insurance", so it has fulfilled. However, according to the "Information Note" provided by a primary school, it can be seen that an insurance company has not directly contacted the parents of the students in the whole process of issuing leaflets, parents' signatures, premium collection and policy delivery. There is no evidence that an insurance company has explained the concept, content and legal consequences of the exemption clauses in the leaflets and insurance policies to the parents of the students in written or oral form. In addition, an insurance company argues that the parent of the student and an insurance brokerage company constitute a principal-agent relationship, so its behavior of exercising the obligation of prompting and explaining to an insurance brokerage company also has effect on the policyholder. This defense obviously confuses the basic principles of the subject status of the parties to the insurance contract and the relativity of the contract, and whether the establishment of the insurance contract has the intervention of the insurance brokerage company, neither does it affect the performance of the insurer's obligation to explicitly state directly to the policyholder on the exemption clause, so this defense claim of an insurance company is not accepted by the Court. In summary, the Court confirmed that an insurance company did not clearly explain the obligation of the exemption clause involved in the case to the policyholder Liang and Chen, and the exemption clause has no effect on Liang and Chen. The insurance policy involved in the case did not agree on the beneficiary. According to the provisions of Article 42 of the the People's Republic of China Insurance Law, Liang and Chen Mou, as the first order heirs of Liang, are now suing to require an insurance company to pay insurance money of 130000 yuan. The rationale is sufficient and the court supports it. In addition, no matter whether Liang and Chen have signed on the leaflet, and whether Liang's cause of death is related to past medical history, it will not affect the above-mentioned determination and handling results of this case. Therefore, it is no longer necessary to obtain evidence from an insurance company and the application for identification, and the court will not allow it. The court of second instance held that] The Court believes that the trial of the second instance case should revolve around the appeal request of the parties. Based on the opinions of both parties, the focus of the dispute in the second instance of this case includes: whether an insurance company in the 1. has fulfilled the obligation to clearly explain the exemption clause to the insured Liang and Chen, 2. whether the insured Liang and Chen have deliberately or due to Gross negligence failed to perform the obligation of truthful notification. Regarding the focus of the dispute, whether an insurance company has clearly stated its obligation to the policyholder Liang and Chen on the exemption clause. The insurer's obligation to explain the exemption clause refers to the insurer's explanation of the concept, content and legal consequences of the exemption clause in the insurance contract to the policyholder in writing or orally. First of all, the main purpose of an insurance company distributing leaflets through schools is to attract parents of students to take out insurance. The nature of the leaflets is similar to advertisements and does not belong to the category of insurance certificates. At the same time, the part of the leaflet that needs to be signed by parents is only the "power of attorney for the insurance broker of" learning accident insurance ", and there is nothing to remind parents to pay attention to the exemption clause. An insurance company also did not explain the exemption clause in other ways. Therefore, the leaflet alone cannot prove that an insurance company has fulfilled its obligation to prompt the exemption clause, let alone that an insurance company has fulfilled its obligation to explain. Secondly, in accordance with the "'Learning Insurance' insurance broker power of attorney" contained, the insurance broker accepts the student's parents entrusted to handle the insurance and claims procedures, but the insurer's reminder to the policyholder that the obligation is not exempted by the policyholder entrusting the insurance broker to handle the insurance procedures. Because the counterparties to the insurance contract are the insurer and the policyholder, the insurance broker only handles the insurance procedures on behalf of the policyholder, not an independent party, the insurance broker handles the insurance procedures in the name of the policyholder rather than in his own name, and the insurer fulfills the obligation to prompt the policyholder rather than the insurance broker. Therefore, an insurance company advocates that the act of exercising the obligation of prompting the insurance broker has the effect on the insured, which is contrary to the connotation of the entrustment agent system, and the court will not adopt it. In summary, an insurance company claims that it has fulfilled its obligation to clearly explain the exemption clause to the policyholder, and the court does not support it on insufficient basis. With regard to the second focus of the dispute, whether the policyholder has intentionally or through gross negligence failed to perform the obligation of truthful disclosure. Article 16, paragraph 1, of the the People's Republic of China Insurance Law stipulates: "If an insurance contract is concluded and the insurer inquires about the subject matter of the insurance or the relevant situation of the insured, the applicant shall truthfully inform it." However, from the ''Statement of Situation'' provided by a primary school, it can be seen that from the entire process of issuing leaflets, parents' signatures, premium collection, and policy delivery, an insurance company has not directly contacted the parents of the students, and there is no formal inquiry procedure for the subject matter of the insurance or the insured. The only evidence available is that the "power of attorney for 'academic insurance' insurance brokers" in the leaflet mentions "whether there is a past illness" in the student information column ". As mentioned above, the leaflet is of an advertising nature and does not constitute a process for the formal conclusion of an insurance contract, and the relevant content on the leaflet is not sufficient to enable the policyholder to pay enough attention to and have a clear understanding of the meaning and consequences of the check. Moreover, from the fact that an insurance company stated that the leaflet was retained by the school, it can be seen that an insurance company did not in fact review the contents of the leaflet at the time of underwriting and used it as the basis for underwriting. To sum up, regardless of whether the applicant has checked "whether there is a past illness" and how to check, it cannot be determined that the applicant has intentionally or failed to fulfill the obligation of truthfully informing due to gross negligence. The relevant claims of an insurance company lack basis and the court will not support them. Whether the applicant signs the leaflet or not does not affect the determination and handling of the case. The court of first instance did not allow the investigation and evidence collection, which is not improper. Lawyer Advice] China's insurance law and judicial interpretation on the insurance company for the insurance contract exemption clause of the prompt explanation obligation has clear provisions, but in practice there are disputes caused by the obligation to fulfill the determination of disputes. In this case, the court held that the leaflet distributed by the insurance company through the school did not belong to the scope of the insurance certificate. The leaflet did not indicate that parents should pay attention to the exemption clause, and the insurance company did not explain the exemption clause through other means. The leaflet alone cannot prove that the insurance company has fulfilled its obligation to explain the exemption clause. Through this case, it is suggested that insurance companies should pay attention to fully fulfilling the statutory responsibilities of the insurer. For the exemption clauses that are prone to disputes, they should adopt appropriate methods to fulfill the obligation of reasonable and sufficient prompts to the insured when accepting insurance, and pay attention to retaining Relevant evidence to avoid mere formality.

2021-12-09

Corporate Litigation Study... The shareholder register of the company's litigation rules records disputes.

Foreword A dispute over the record of the register of shareholders is a dispute arising from the failure to make timely changes to the register of shareholders after the transfer of shares or the error of the record of the register of shareholders due to various other reasons, which in turn leads to the inability of shareholders to claim their rights on the basis of the records in the register of shareholders. In practice, disputes recorded in the register of shareholders are often litigated together with disputes over the confirmation of shareholders' qualifications and disputes over requests to change the registration of the company. By combing the relevant laws, supplemented by monographs and typical cases, this paper tries to clarify the relevant legal provisions and judicial 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. Companies Act of the People's Republic of China Article 23 The establishment of a limited liability company shall meet the following conditions: (1) The number of shareholders meets the quorum; the (II) has the amount of capital contributions subscribed by all shareholders in accordance with the company's articles of association; the (III) shareholders jointly formulate the company's articles of association; the (IV) has a company name, Establish an organization that meets the requirements of a limited liability company; (V) have a company's domicile. Article 24 A limited liability company shall be established by not more than 50 shareholders. Article 25 The articles of association of a limited liability company shall specify the following matters: (1) the name and domicile of the company; the business scope of the (II) company; the registered capital of the (III) company; the name or name of the (IV) shareholder; the mode, amount and time of capital contribution of the (V) shareholder; the organization of the (VI) company and its method of formation, powers and rules of procedure; the legal representative of the (VII) company; (VIII) other matters deemed necessary by the shareholders' meeting. The shareholders shall sign and seal the articles of association. Article 32 A limited liability company shall keep a register of shareholders, which shall record the following matters: (1) the name or names and domicile of the shareholders; the amount of capital contribution of the (II) shareholders; (III) the number of the certificate of capital contribution. Shareholders recorded in the register of shareholders may claim to exercise their rights in accordance with the register of shareholders. The company shall register the names of the shareholders with the company registration authority; if the registration items are changed, the change registration shall be carried out. If the registration is not registered or the registration is changed, it shall not be used against a third party. (II) relevant judicial interpretation 1. (III) of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the the People's Republic of China Company Law Article 22 If there is a dispute between the parties over the ownership of equity, and one party requests the people's court to confirm that it enjoys the equity, it shall prove one of the following facts: (1) it has contributed or subscribed to the company in accordance with the law, and does not violate the mandatory provisions of laws and regulations; the (II) has been transferred or inherited the company's equity in other forms, and does not violate the mandatory provisions of laws and regulations. Article 23 After the parties have fulfilled their capital contribution obligations or acquired equity in accordance with the law, the company has not issued a capital contribution certificate in accordance with the provisions of Articles 31 and 32 of the Company Law, recorded it in the register of shareholders and registered with the company registration authority. If the parties request the company to perform the above obligations, the people's court shall support it. 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. Provisions issued by regional courts in (III) 1. (I) of the Higher People's Court of Shanghai Municipality on Several Issues Concerning the Trial of Cases Involving Company Disputes If the shareholders of a limited liability company transfer their shares to others, they shall obtain the consent of more than half of the shareholders of the company according to the provisions of Article 35 of the Company Law. If the shares are transferred without consent and other shareholders of the company do not approve the shares after the contract is signed, the equity transfer contract shall not be effective for the company, and the transferor shall bear the liability for breach of contract to the transferee, if other shareholders of the company do not approve, the transferor shall not bear the liability for breach of contract. After the equity transfer contract is signed with the consent of other shareholders, the company shall go through the formalities of changing the registration of shareholders, and the transferee shall exercise its rights to the company as a shareholder. If the company fails to go through the relevant formalities, the transferee may bring a right confirmation lawsuit for the defendant and may not claim cancellation of the contract from the transferor. 2. Guidelines of the Guangxi Higher People's Court on Several Issues Concerning the Trial of Company Dispute Cases 19. [The situation where the equity transfer contract clearly stipulates the time point of equity change] Once the equity transfer contract is established and effective, it can bind both parties to the contract. If the parties expressly agree on the point in time of the equity change, generally speaking, the point in time may be the performance of the contract such as the payment of shares or the payment of a certain period of shares, or it may be consistent with the company's confirmation of the transfer of shares, such as the company's change of the register of shareholders and the registration of industrial and commercial changes. If the parties agree that the time point of the change of equity is earlier than the company confirms the transfer of equity, then only a certain transfer of equity effect occurs between the parties to the contract, at which time the specific effect of the equity transferee can obtain includes:(1) the right to request the change procedures. That is, the right to request the company to change the register of shareholders, issue a certificate of capital contribution and register the industrial and commercial change;(2) the right to equity income. That is, a request is made to the equity transferor for payment of the property interest that the transferor has acquired from the company after the point in time at which the interest is transferred. 3. Opinions of Shandong Higher People's Court on Several Issues Concerning the Trial of Company Dispute Cases 41. If the shareholders request the company to issue a certificate of capital contribution, record it in the register of shareholders and the articles of association of the company, and go through the procedures for the change of industrial and commercial registration, the company refuses to do so, and the people's court shall support the shareholder's lawsuit requesting the company to perform its obligations. Related Articles 1. Zhang Shuanggen: "On the Determination of Shareholder Qualification of Limited Liability Company-Centered on the Construction of the Shareholder Register System" The shareholder register system refers to the situation in which there is a dispute over whether the subject recorded in the shareholder register is a true shareholder. Such disputes are in the category of litigation and belong to the confirmation of shareholder qualification. As mentioned above, in the internal operation of the company, shareholder qualification is a prerequisite for shareholders to claim their rights and the operation of the corporate governance structure, to a large extent belongs to the scope of the company's program, so based on the above principle, can be solved by using the formal shareholder roster standard. However, in the dispute over shareholder qualification, shareholder qualification is the core and focus of the dispute, and what is questioned is precisely the record of the shareholder roster, so at this time the consideration is the probative force of the evidence cited by the parties. However, there are no more than two kinds of disputes: either the evidence presented by the doubters is not sufficient to prove that there is an error in the record of the register of shareholders, the record of the register of shareholders is still maintained; or the evidence has proved that there is an error in the record of the register of shareholders, the record of the register of shareholders is overturned, thus initiating the correction procedure of the register of shareholders and correcting the error. 2. Xu Hao: Discussion on the Relationship between Equity Transfer of Company Law and Shareholder Qualification-Based on Judgment No. 0011 of Wan Min Er Zhong Zi (2009) After the transfer of shares occurs, the transferee of shares notifies the company of the fact of the transfer of shares, and the company is obliged to change the register of shareholders and the industrial and commercial registration. The register of shareholders has the effect of confrontation, and the shareholders recorded in the register of shareholders may claim to exercise the rights of shareholders in accordance with the register of shareholders. 3. Song Limei: Study on the Register of Shareholders of Limited Liability Companies in China The register of shareholders, as a statutory and necessary book of a limited liability company (hereinafter referred to as a "limited liability company"), is an internal document of the company. The shareholder register system plays a very important role in the field of corporate law system. In the case of a company, the company may determine the members of the company through the register of shareholders and maintain the status of a limited company as an independent legal person, and in the case of shareholders, shareholders may claim shareholders' rights by virtue of the presumptive role of the register of shareholders. Summary of Litigation [plaintiff]: shareholder Defendant: Company Third person: Other interested parties [jurisdiction]: under the jurisdiction of the people's court of the company's domicile [Claim]]: 1. Order the defendant to record the name and address of the plaintiff, the amount of capital contribution and the number of the capital contribution certificate in the register of shareholders and to register the name of the plaintiff (shareholder) with the company registration authority; 2. The costs of litigation in this case shall be borne by the defendant. Related Cases and Judgment Rules [Case 1: Chen Weixian and Guangxi Zhuang Autonomous Region Guigang Food Co., Ltd. Register of Shareholders Record Dispute No. (2019) Gui 0802 Minchu No. 447]] The People's Court of Gangbei District, Guigang City, Guangxi Zhuang Autonomous Region held that: Article 32 of the Company Law stipulates that a limited liability company shall keep a register of shareholders, which shall record the following matters: (1) the name or domicile of the shareholders; the amount of capital contribution of the (II) shareholders; (III) the number of the capital contribution certificate; shareholders who record the register of shareholders may claim to exercise their rights in accordance with the register of shareholders. The company shall register the names of the shareholders with the company registration authority; if the registration items are changed, the change registration shall be carried out. If the registration is not registered or the registration is changed, it shall not be used against a third party. This case is a food company in the government-led restructuring, due to the confirmation of the company's shareholder qualifications and disputes. In this case, in order to confirm the shareholder qualification of the limited liability company, in addition to the relevant provisions of the company law, it is also necessary to comprehensively consider the relevant policies and regulations of government departments on the restructuring of state-owned enterprises. According to the approval of Guigang Municipal People's Government, Chen Weixian subscribed for 3000 yuan of state-owned assets of Guigang Food Corporation. After Guigang Food Corporation was restructured and renamed as a food company, Chen Weixian should be recognized as the actual investor and shareholder of the food company. As the law stipulates that the registered shareholders of a limited liability company are less than 50 and the provisions of food companies, only those with a capital contribution of more than 30000 yuan are registered as shareholders of the company. When the food company was established, the actual funder reached 286, Chen Weixian's capital contribution was 3000 yuan, according to the internal regulations of the food company, Chen Weixian failed to register as a nominal shareholder of the food company, but the food company should record Chen Weixian as a shareholder of the company in the register of shareholders. According to the industrial and commercial registration information, the nominal shareholders registered by the food company are Ning Yuanming and Guigang Bandung Building Materials Trading Co., Ltd. In the case of no more than 50 nominal shareholders, the food company shall apply to the industrial and commercial registration department for registration of Chen Weixian as a shareholder of the company. Therefore, Chen Weixian's request is supported. [Summary of the Referee]]: In the process of restructuring a state-owned enterprise into a limited company, it should be affirmed that the shareholders who contribute less have the status of actual investors. In the event that the number of shareholders of a limited liability company exceeds the quorum, the shareholder representatives may be elected on the basis of the autonomy of the company, but the relevant information of other shareholders who are not representatives of shareholders shall still be fully recorded in the internal register of shareholders. Where the number of shareholders of a limited liability company does not exceed a quorum, the claim of other shareholders who are not representatives of shareholders to register their names with the company registration authority should be supported. [Case 2: Changchun Friendship Store Co., Ltd. and Chi Yang and Zhang Xifang's Shareholder Register Record Dispute No. (2017) Ji 0104 Min Chu No. 4108]] The People's Court of Chaoyang District, Changchun City, Jilin Province held: 1. The original shareholders of Changchun Friendship Department Store Co., Ltd. were 166. When the company was changed from a joint-stock cooperative company to a limited company, a general meeting of shareholders should be held in accordance with the provisions of the Company Law, but the defendant failed to show the resolution of the general meeting of shareholders, and the change in the form of the company was flawed. During the period, although the majority of shareholders entrusted 11 shareholders' representatives to hold the shares on their behalf, and the board of directors of the company decided to handle the remaining shareholders who did not sign the power of attorney as holding on behalf of the decision, but in the case of the two plaintiffs without the consent of the majority of shareholders or in the name of the board of directors, the shareholders who did not have the intention to be anonymous cannot be changed into anonymous shareholders. Afterwards, the board of the two plaintiffs, therefore, the decision made by the board of directors on behalf of the plaintiff is invalid, and Changchun Friendship Store Co., Ltd. shall restore the shareholder qualification of the two plaintiffs. 2. Because there is no share holding agreement between the two plaintiffs and the share holder Yang Chunguang, Changchun Friendship Store Co., Ltd. claims to apply the provisions of Article 24, paragraph 2, of the "Interpretation III of the Company Law", and other shareholders of the existing company do not agree. For the reason, the shareholder qualification of the two plaintiffs is not recognized. Since the shareholders of the present limited company knew from the beginning that the two plaintiffs were the actual contributors of the company, in the absence of a proxy agreement, the actual contributors should enjoy the status of shareholders in accordance with the law, and the defendant's justification could not be established. [Summary of the Referee]]: 1. When the company is restructured, the general meeting of shareholders shall be held in accordance with the relevant provisions of the Company Law. If the general meeting of shareholders is not held, there are procedural defects in the change of the form of the company. 2. Without the knowledge or consent of the shareholders, a shareholder who has no hidden will cannot be forced to become a hidden shareholder with the consent of a majority of other shareholders or in the name of the board of directors. 3. There is no agreement on the holding of shares between the shareholders and the holders of shares, and the actual contributors shall enjoy the status of shareholders in accordance with the law. In the absence of a valid proxy agreement and in the case that the shareholders of an existing limited company know from the beginning that a shareholder is the actual investor of the company, they shall not, in accordance with the provisions of Article 24, paragraph 2, of the Judicial Interpretation III of the Company Law, on the grounds that other shareholders of the existing company do not agree, do not recognize their shareholder qualifications. [Case 3: Shanghai Lintongyan Li Guohao Civil Engineering Consulting Co., Ltd. and Tongji Engineering Group Co., Ltd. recorded dispute case No. (2018) Shanghai 02 Minzong No. 82]] The court of first instance, Shanghai Chongming District Court, held that Lin Li Company recognized that the company had a register of shareholders and issued a certificate of capital contribution to the four shareholders registered in industry and commerce. The equity transfer contractual relationship between Tongji Engineering Company and Tongji Innovation Company is legal and valid. Tongji Engineering Company has acquired 30% of the shares of Lin Li Company originally held by Tongji Innovation Company through bidding for a fee, and has paid off all the shares transfer funds, which has replaced Tongji Innovation Company as a shareholder of Lin Li Company. According to the law, a limited liability company shall issue a certificate of capital contribution to its shareholders, which shall state the name of the company, the date of establishment, the registered capital of the company, the name or name of the shareholder, the amount of capital contribution paid and the date of capital contribution, the number of the capital contribution certificate and the date of issuance. The company shall keep a register of shareholders, recording the names and domiciles of the shareholders, the amount of capital contribution of the shareholders and the number of the certificate of capital contribution. The company shall register the names of the shareholders with the company registration authority, and shall register the change in the registration matters. Now Tongji Engineering Company requires Lin Li Company to record Tongji Engineering Company in the register of shareholders and handle the application for change registration, which is in line with the law and supported by the court of first instance. Lin Li company once to equity transferor Tongji Chuang

2021-12-09

Viewpoint... A brief analysis of the responsibility of law firms in the securities market -- take the "Five Foreign Bonds Case" as an example.

1. Introduction In 2015, Wuyang Construction Group Co., Ltd. (hereinafter referred to as Wuyang Construction) issued a bond of 1.36 billion yuan to the public, which was materially defaulted due to its failure to pay the principal and interest as scheduled. After investigation by the CSRC, Wuyang Construction has false records in the issuance application documents. After the investor claims to the issuer and the intermediary to pursue its liability. In September 2021, the Zhejiang Provincial High Court made a final judgment on the case, rejecting the appeals of various intermediary agencies, and ruled that all intermediary agencies in this case were jointly and severally liable. Among them, the court held that Shanghai Jintiancheng Law Firm issued a legal opinion for the bond issue, did not work diligently and dutifully, there was a certain fault, and decided that Jintiancheng Law Institute should be responsible for 5% of the scope of joint and several liability. This case is the first case of the application of the representative litigation system in the field of securities in China, and it is also the first time that a law firm has been included in the scope of joint and several liability, thus causing a lot of waves in the industry. 2. case analysis 1. Inadequacy of the reasoning part of the court decision In the first instance judgment of this case, the Hangzhou Intermediate Court's reasoning part of the responsibility of Jintiancheng Law Firm is as follows: Under the circumstances that Dagong International's 2015 Corporate Bond Credit Rating Report has prompted Wuyang Construction Holding Subsidiary to sell investment real estate, Jintiancheng Law Firm has not paid attention to the verification of the major contract and the major asset changes involved, has not conducted due diligence on the ownership of real estate, and has not found the legal risks to Wuyang Construction's solvency caused by the relatively high reduction of major assets. Therefore, Jintiancheng Law Firm has not worked diligently and is at fault. It is not difficult to see that the court believes that the law firm's fault lies in the failure to find that Wuyang Construction has a relatively high proportion of significant asset reductions, but what is the basis for this fault? What is the scope of the law firm's due investigation? Is the law firm capable of having an obligation to investigate asset changes? Is there a causal relationship between the law firm's fault and the bond default? The court did not elaborate further. In fact, the law firm does not have much power to conduct a comprehensive investigation of the issuer in the process of issuing bonds. In other words, as an intermediary, the due diligence ability and authority of law firms are completely different from those of administrative agencies. It is undoubtedly a harsh criticism to impose requirements on intermediary agencies with the verification ability of administrative agencies and exchanges as a general standard. It would be far-fetched for the court to decide that the firm was liable on this point alone, especially since it is estimated that Jintiancheng's liability is about 500 times as much as the service fee it charges. 2. Intersection of commercial and legal risks The supervision of the securities market by law firms is mainly reflected in the control of legal risks, but the rating report in this case shows that the company sells investment properties. It is questionable whether this should be included in the scope of legal risk review. The sale of real estate in exchange for the purchase of a house is a price exchange, even if the final reduction of assets, is also a normal business risk faced by the company, such a decision may be based on the future development of the company's various considerations, if the regulatory authorities only engage in the results of the determination of violations, it is not a cause of suspicion. The law's regulation of commercial risk is more procedural than substantive, which also requires the law to focus on the static ownership of assets rather than dynamic asset changes in the reality of the investigation, in fact, lawyers do not have the ability to fully estimate and predict the risk of the commercial field. Of course, commercial risk and legal risk are by no means distinct, and the outcome of the case also suggests that legal practitioners should pay attention to the investigation of such two related situations. 3. Law Firm Liability Boundaries 1. The basis for the joint and several liability of the law firm. According to Article 163 of the Securities Law, if the documents produced or issued by a securities service institution contain false records, misleading statements or material omissions, causing losses to others, it shall be jointly and severally liable with the principal, except where it can prove that it is not at fault. It follows that this is a presumption of fault liability, the problem is how to determine the fault of the law firm, and the determination of whether there is fault involves the law's obligations in the securities market. The Securities Law does not clearly stipulate this. According to Article 14 of the "Administrative Measures for Law Firms Engaging in Securities Legal Business" (hereinafter referred to as the "Administrative Measures") issued by the Ministry of Justice and the China Securities Regulatory Commission, when lawyers issue legal opinions, they are related to the law. The business matters of China shall perform the special duty of care of legal professionals, and perform the general duty of care of ordinary people for other business matters. This provision distinguishes between two different types of duty of care. Article 15 of the Administrative Measures stipulates that documents directly obtained by lawyers from state agencies, organizations with the function of managing public affairs, accounting firms, asset appraisal agencies, credit rating agencies, and notary agencies may be used as the basis for issuing legal opinions, but Lawyers shall perform the duty of care stipulated in Article 14 of these Measures and explain them. The question about this article is to what extent of the duty of care does the law firm review the materials issued by other intermediaries? What is the difference between the special duty of care and the general duty of care? These are not clearly defined, which gives the court more room for discretion. 2. Understanding within the framework of existing rules The process of issuing legal opinions by law firms often involves the review of a large number of materials issued by other institutions, so when these materials are falsely recorded, is the law firm necessarily liable? The answer is no. The court in this case also did not point out that the law firm should bear full responsibility for the untruthfulness of the materials, but the key lies in whether the law firm is diligent and conscientious in the investigation process, that is, whether it has fulfilled the relevant duty of care. Therefore, according to Article 14 of the Administrative Measures, it is particularly important to distinguish between legal and non-legal matters. The author believes that in the absence of clear legal rules and guidelines, the "Rules for the Reporting of Information Disclosure of Publicly Issued Securities Companies" No. 12 issued by the China Securities Regulatory Commission has certain reference value. The specification makes more detailed provisions on the contents of legal opinions and lawyers' work reports, which is an important basis for clarifying lawyers' duty of care in the securities market. In practical work, it is worth noting that matters that meet the duty of special attention should be shown through a clear carrier, and in the process of making legal opinions, attention should be paid to the process of collecting and fixing relevant evidence. keep relevant examination records and working papers, in order to reduce the risk of liability. 3. A brief outlook for the future of the responsibility of intermediaries. Accurate data-based trial mode is the general trend of judicial reform in the future, and it is no exception in the highly digital securities market. The author thinks that the judicial organ can at least consider the responsibility determination in the following aspects: first, distinguish the size of the fault according to subjective factors, such as intentional, knowing that it should be known and laissez faire or gross negligence, general and minor negligence; second, it pays attention to the argument of causality, focusing on the extent to which the behavior of intermediary institutions leads to the final loss of investors; finally, the unity of power and responsibility, liability should be adapted to the fees charged by the intermediary. 4. epilogue After the implementation of the new "Securities Law", my country's protection of the rights of small and medium investors in the securities market has reached a new level, but judicial practice has also brought doubts about the excessive crackdown on intermediaries and "overcorrection. As legal workers, we should clearly understand the risks of the work of lawyers in the securities market, improve the level of understanding of relevant laws and regulations, and constantly promote the development and improvement of various systems in China's securities market.

2021-12-08

Viewpoint | A brief description of the design and advantages and disadvantages of the "poison pill plan"

Equity dilution anti-acquisition measures, or poison pill plan, refers to a company in the event of a hostile acquisition, through the issuance of new shares to increase the cost of the acquirer, or increase the risk of dilution of the shares held by the original shareholders of the acquirer after the successful acquisition, to resist the acquisition of a defensive measure. The poison pill plan has the characteristics of immediacy, pertinence and diversity. Since the start of Martin Lipton in 1982, the design has become the most popular anti-takeover measure for listed companies in the United States. In 2005, in the face of Shanda's acquisition, Sina introduced the poison pill plan as a powerful tool into China for the first time. This article will introduce the design ideas and advantages and disadvantages of several common poison pill programs. Prerequisites for the application of the 1. poison pill program The (I) poison pill program needs to be supported by the authorized capital system. The authorized capital system refers to the establishment of the company, although the total amount of registered capital should be determined in the articles of association, but the promoter only needs to subscribe for part of the shares, the company can be formally established, the rest of the shares, authorized the board of directors according to the company's production and operation situation and the securities market market at any time to issue the company's capital system. Although after the revision of the Company Law in 2013, China fully applied the payment system and played down the decisive role of the three principles of capital, it still adopted the statutory capital system. As a result, domestically listed companies are unable to adopt the poison pill program, while companies listed in common law countries and regions have no such concerns. (II) POISON PILLS PLAN REQUIRES CIRCULATION OF WARRANTIES A warrant is a call option issued by a company limited by shares to subscribe to its shares. It gives the holder the right to purchase certain shares of the issuing company at a pre-agreed price within a certain period of time. The types of securities stipulated in China's Securities Law are enumerated and do not allow the circulation of warrants. However, in the Hong Kong and US stock markets, such securities are quite popular. (III) poison pill program is an extension of boardroom centrism Board centralism means that the board of directors is at the core of corporate governance. In the design of the poison pill program, the board of directors is required to evaluate, make decisions and make corresponding plans and measures on the acquirer's offer in a timely manner. On the other hand, this is also an integral requirement of the authorized capital system. General Design Idea of 2. Poison Pill Program (I) valgus poison pill 1. Distribution of subscription rights The company distributes a special stock subscription right to common shareholders on a one-to-one basis. The subscription right is essentially a contract between the company and its shareholders. The Subscription Rights shall not be exercised until the conditions of activation have been met. Once activated, the subscription right can be separated from the common stock, and the acquirer must acquire the common stock and the special share subscription right separately, making it more difficult to acquire. 2. Activation Conditions There are two activation conditions for subscription rights. First, the acquisition direction of a certain proportion of the holders of shares issued a takeover offer, at this time the activation is designed to warn the acquirer, to prevent the acquisition effect. Second, without the consent of the acquired company institutions or individuals to achieve a certain percentage of the acquired company's shareholding, at this time the hostile takeover has begun, the company will take more drastic measures. 3. Content of subscription rights As a result of the merger, the surviving company will inherit all the rights and obligations of the acquired company, including, naturally, the company's contractual obligations to its shareholders. Therefore, after the activation condition is fulfilled, the holder of each special stock subscription right has the right to purchase the common stock of the surviving company one to two. The exercise price, which is only half of the market price of the stock, is clearly attractive to subscription rights holders. In this way, after the completion of the acquisition, the proportion of shares held by the original acquirer shareholders in the surviving company will be greatly diluted, which is the "toxicity" of the poison pill. And it is precisely because the plan allows the acquirer's shareholders to buy the acquirer's stock that it is known as an outward-turning poison pill. 4. Redemption clause The poison pill program designed two different redemption clauses for two different activation conditions. If the poison pill is activated because of the first condition, the company has the right to redeem the subscription right at a low price before the right is exercised. However, if the poison pill program is activated for the second reason, it can no longer be redeemed. This clause is aimed at a two-tier tender offer (I. e., the acquirer promises to acquire a certain percentage of the shares at a high price and then the remaining shares at a low price) to prevent the acquirer from controlling the board of directors with its shareholding ratio and then making a second round of acquisitions. (II) varus poison pill The design idea of the inverted poison pill is roughly the same as that of the inverted poison pill. The main difference is the content of the subscription right and the extension of the foreclosure right. Once the inverted poison pill is activated, shareholders of the acquired company other than the acquirer can purchase the target company's own stock at half price. At this point the acquirer's stake in the target company is greatly diluted, thereby increasing the cost of the acquisition and even losing the possibility of seizing control. The inward-turning poison pill often generally provides for foreclosure. Since the acquirer did not yet have control of the acquired company when the inverted poison pill took effect, the influence on the board of directors was not deep enough. So the board has the flexibility to respond to the takeover offer. There was a third generation of the poison pill program, but it was not recognized by the Delaware courts. Therefore, most of the current listed companies are using a combination of outward and inward poison pill plan, that is, when the acquirer occupies a certain proportion of the company's shares, the acquired shareholders have the right to exercise the inward-turning poison pill, after the completion of the acquisition, the right to exercise the outward-turning poison pill. Advantages and Disadvantages of the 3. Poison Pill Program The poison pill program first has the advantage of immediacy. In the U.S. corporate law system of authorized capital, the board of directors is able to make and implement a plan based on the actual situation immediately after the acquirer initiates the acquisition, and in the absence of a hostile takeover, the preparation of the plan is not harmful to the company's equity structure. Secondly, as the redemption clause can be flexibly used after the optimization of the poison pill plan, the board of directors has more room for negotiation with the acquirer, which is more conducive to fighting for the interests of the company, shareholders and even themselves. Finally, the poison pill program poses a very significant threat to the acquirer relative to other anti-takeover measures. In the absence of a lawsuit to deny the poison pill program itself, most acquirers are repulsed by the poison pill program. At the same time, there is a downside to the poison pill program. Once the poison pill plan is implemented, it will have a huge impact on the equity structure of both companies. Since the companies implementing the poison pill plan are basically listed companies, major changes in the shareholding structure will cause severe fluctuations in the company's market value, which will undoubtedly harm the interests of shareholders, especially public investors. It is precisely because of this that many countries and regions are cautious about the poison pill program. In addition to the support of the United States, Japan chose to approve it after several iterations. Britain and Singapore banned the poison pill program in principle, but left room. Hong Kong law, which has the same origin, has a rather ambiguous attitude towards this. Chow Tai Fook's New World Development successfully resisted the malicious acquisition of the Naughty Child Fund through the poison pill program. Of course, the existence of the poison pill program is itself a deterrent to the acquirer without having to put it into practice. In practice, it is rare to see the activated poison pill plan, and the cases of "toxicity" completely distributed and the two sides breaking the net are even rarer. 4. epilogue The poison pill program, one of the most powerful tools in anti-takeover measures, has been hugely popular and controversial. For companies interested in cross-border mergers and acquisitions or overseas listings, the poison pill program is a weapon they must master and deal. At present, China's listed sectors, only allow the same shares of different rights of the board, with the application of the first generation of priority poison pill space. However, with the establishment of the Science and Technology Innovation Board and the Beijing Stock Exchange, and the successive amendments to the Securities Law and the Company Law, the increasingly relaxed business environment is bound to require increasingly diversified anti-acquisition tools. With the principle of foresight and prevention, domestic enterprises should also be aware of anti-acquisition tools such as poison pill programs.

2021-12-08

If the insurance company fails to inquire about the relevant situation of the insured, the insured shall not have the obligation to inform.

[brief case]] Zu took out personal insurance with an insurance company, and later Zu was diagnosed with "right breast cancer" and was rejected from an insurance company, so he filed a lawsuit. An insurance company argued that Zu did not fulfill the obligation of truthful notification when he was insured. He deliberately concealed that he had suffered from diabetes, solid liver nodules, abnormal liver function and other diseases, and confirmed the major diseases listed in the contract during the waiting period. According to the insurance contract, the insurance company has the right not to pay the insurance premium. After review, the "Health Notice" in the "Insurance Contract" signed by an insurance company and Zu did not mention the inquiries about gestational diabetes, solid liver nodules, and abnormal liver function, and an insurance company did not provide evidence to prove it When applying for insurance, he explained to Zu that the "diabetes" included gestational diabetes, and did not ask Zu whether he had abnormal liver function or solid liver nodules. The People's Court held that the insurance company did not provide evidence to prove that it had asked Zu whether he had suffered from gestational diabetes, abnormal liver function, and solid liver nodules when applying for insurance. Therefore, Zu did not ask questions that the insurance company did not ask. There is no obligation to inform, and the insurance company should pay insurance money to Zu. focus of controversy] Whether Zu has fulfilled the obligation of truthful notification at the time of insurance, and whether the insurance company should bear the responsibility of paying the insurance premium. The court of first instance held that] The Court considers that this case is a dispute over a life insurance contract. The insurance contract signed by Zu and an insurance company is the true intention of both parties. The content does not violate the prohibitive provisions of laws and regulations. It is a valid contract. Both parties should strictly perform their respective obligations in accordance with the contract. The focus of the dispute in this case is: whether an insurance company should pay 350000 yuan to Zu. In this dispute, first of all, an insurance company claimed that Zu did not fulfill the obligation to tell the truth. In combination with Zumou's medical history of "liver nodules" and the requirements of "Health Notification", Zumou has truthfully replied. An insurance company did not submit evidence that Zu had diabetes when he was insured. Secondly, an insurance company claims that Zu has developed symptoms related to the major illness agreed upon in the insurance contract during the waiting period of the insurance contract. According to the existing evidence, Zu found a right breast nodule on October 20, 2019, and underwent medical treatment and examination in November 2019, and was finally diagnosed with breast cancer after re-examination and treatment in March 2020. Although the time of Zu's first visit is within the waiting period of the insurance contract, it belongs to normal examination and treatment. The symptoms of the examination result are the same or similar to the early symptoms of breast cancer. Patients with the above symptoms are only likely to be diagnosed with breast cancer and other cancer diseases, but it is not inevitable. It can not be determined that Zu has breast cancer during this period. Zumou was diagnosed with the first illness for more than the waiting period for the insurance contract. The circumstances of this case are in line with the relevant provisions of the major disease insurance in the insurance contract involved in the case. "The insured shall be diagnosed by a Junior College doctor in a medical institution designated or approved by the company for non-accidental reasons within 180 days from the effective date of the contract." One or more major diseases listed "is obviously inconsistent. The relevant defense of an insurance company lacks factual basis and is not supported by this court. Third, an insurance company argued that Zu should report the deterioration of his health to him during the waiting period of the insurance contract in accordance with Article 52 of the the People's Republic of China Insurance Law. This clause is in response to the provisions of the property insurance contract on the "obligation to notify of increased risk", and the insurance contract in question is a life insurance contract. An insurance company invoking this provision to claim exemption is an error in the application of the law, which is not adopted by the Court in accordance with the law. In summary, the Court does not support the relevant defenses of an insurance company. The court of second instance held that] The Court held that the case was a dispute over a life insurance contract. According to Article 323 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law, the people's court of second instance shall hear the appeal request of the party concerned. If the party concerned fails to appeal, the case shall not be heard. Combined with the arguments of both parties, the focus of the dispute in the second instance of this case is: whether the 1. Zu has fulfilled the obligation of truthful notification when applying for insurance; whether the 2. Zu has been diagnosed with breast cancer during the waiting period of the insurance contract. With regard to the first focus of the dispute, the question of whether Zu had fulfilled his obligation to tell the truth when he was insured. Article 16, paragraph 1, of the the People's Republic of China Insurance Law stipulates: "If an insurance contract is concluded and the insurer inquires about the subject matter of the insurance or the relevant situation of the insured, the applicant shall truthfully inform it." Paragraph 1 of Article 6 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Insurance Law stipulates: "The obligation of the policyholder to inform is limited to the scope and content of the insurer's inquiry. If the parties dispute the scope and content of the inquiry, the insurer shall bear the burden of proof." According to the provisions of the above-mentioned laws and judicial interpretations, the current law of our country adopts the mode of inquiry and notification, that is, the insurer asks about the subject matter of the insurance or the relevant situation of the insured, and the policyholder truthfully informs the questions asked, and the scope of the policyholder's notification is limited to the questions asked by the insurer. In this case, an insurance company claimed that Zu did not truthfully inform gestational diabetes, abnormal liver function and solid liver nodules at the time of insurance. Therefore, an insurance company should prove that it has asked Zu whether he has or has suffered from the above three diseases at the time of insurance. Only on the premise of an insurance company's inquiry, Zu has the corresponding obligation to inform. About whether gestational diabetes falls within the scope of what should be told truthfully. An insurance company inquires about Zu at the time of insurance through the Health Notice. Among them, the Health Notice asks "Do you have or have suffered from the following diseases or symptoms, or have been examined or treated for the following diseases?... (4) Endocrine or immune system diseases (diabetes mellitus...)". It can be seen that an insurance company only asked whether Zu had or had had diabetes, but did not ask whether Zu had or had had gestational diabetes. An insurance company did not prove that the meaning and type of "diabetes" included gestational diabetes, nor did it prove that the expanded interpretation of "diabetes" included gestational diabetes at the time of the conclusion of the contract. Moreover, in the gestational glucose tolerance test, the index of the 1-hour blood glucose test result in only one prenatal examination slightly exceeded the normal value range, and the 2-hour test result was within the normal value range. The other blood glucose tests conducted by the prenatal examination and the blood glucose test results during the subsequent hospitalization due to illness were all normal. An insurance company had no evidence that Zu had diabetes. Therefore, an insurance company did not ask whether Zu had gestational diabetes when applying for insurance, and Zu did not have the obligation to truthfully inform gestational diabetes. Whether abnormal liver function and liver solid nodules belong to the scope that should be truthfully informed. An insurance company asks through the Health Notice, "Do you have or have ever had the following diseases or symptoms, or have you been examined or treated for the following diseases?... (5) Digestive system diseases (×× virus infection or carrying, liver cirrhosis, severe ××...)". It can be seen that at the time of insurance, an insurance company asked Zu whether he suffered from or had suffered from XXX virus infection or carrying, liver cirrhosis and severe XXX diseases. An insurance company did not ask Zu whether there was any "abnormal liver function" in the examination report, did not explain which liver diseases "abnormal liver function" included, and did not ask Zu whether he had solid liver nodules. Regarding the solid nodules of the liver, Zumou was diagnosed as hepatic hemangioma by examination. Zumou had voluntarily and truthfully informed him that he had suffered from hepatic hemangioma and the diameter of the hemangioma was not more than 5cm. Therefore, because an insurance company did not ask whether Zu had abnormal liver function or solid liver nodules when applying for insurance, Zu did not have the obligation to tell the truth. To sum up, an insurance company did not ask Zu whether he had gestational diabetes or whether he had abnormal liver function or solid liver nodules. Zu did not have the obligation to tell the truth about the questions that the insurance company did not ask. An insurance company claimed that Zu did not fulfill the obligation of truthfully informing when applying for insurance, lacking factual basis and legal basis, and the court did not support it. On the second focus of the dispute, whether Zumou was diagnosed with breast cancer during the waiting period of the insurance contract. The critical illness insurance clause of the insurance contract involved in the case states that the insured shall be diagnosed by a Junior College doctor in a medical institution designated or approved by the company for non-accidental reasons within 180 days from the effective date of the contract. For one or more major diseases, the company shall pay the basic critical illness insurance premium according to the accumulated insurance premium (without interest) paid by the insured in this contract, and this contract shall be terminated at the same time. According to the provisions of the above-mentioned insurance terms, if the insured is diagnosed with a major illness listed in the contract within 180 days of the waiting period, the insurer shall only pay the basic major illness insurance premium in accordance with the amount of the insurance premium paid by the policyholder, and the contract shall be terminated. The first paragraph of Article 64 of the the People's Republic of China Civil Procedure Law stipulates that the parties have the responsibility to provide evidence for their claims. An insurance company claims that Zu was confirmed to have breast cancer within 180 days of the waiting period, and an insurance company bears the burden of proof. The waiting period for the insurance contract involved is 180 days from June 16, 2019 to December 12, 2019. On October 20, 2019, the physical examination showed a right breast nodule. On November 10 and 26, 2019, Zu went to hospital for B- ultrasound examination and was diagnosed as right breast nodule grade BI-RADS3. An insurance company has no proof to prove that the BI-RADS3 level of breast nodules is the standard for the diagnosis of breast cancer. Therefore, the examination conclusion "BI-RADS3 level of right breast nodules" cannot prove that Zu has been diagnosed with breast cancer. An insurance company has no proof that Zu has been diagnosed with breast cancer as of December 12, 2019, and an insurance company claims that Zu was diagnosed with breast cancer during the waiting period, which lacks factual basis. According to the existing evidence, the court of first instance found that Zu had exceeded the waiting period of the insurance contract involved in the case when he was diagnosed with breast cancer. Based on the above analysis, the evidence submitted by an insurance company is not enough to prove that Zu did not fulfill the obligation of truthful notification when applying for insurance, and there is no evidence to prove that Zu was diagnosed with breast cancer during the waiting period. Breast cancer belongs to the scope of claims stipulated in the insurance contract involved in the case, Zu is in the insurance contract waiting for the expiration of the diagnosis of the above-mentioned disease, an insurance company also has no evidence to prove that there is an exemption from insurance liability in this case, so an insurance company should pay Zu a full amount of insurance compensation agreed in the insurance contract. Lawyer Advice] According to the provisions of the Insurance Law and other relevant laws and regulations, the policyholder's obligation to inform is limited to the scope and content of the insurance company's inquiry. For questions that the insurance company has not asked, the policyholder does not have the obligation to inform, and if both parties dispute the scope and content of the inquiry, The insurance company shall bear the burden of proof. Through this case, it is suggested that the insurance company should strictly fulfill the corresponding obligation of inquiry and notification when carrying out insurance business, and make the scope and content of the inquiry as specific and clear as possible to avoid ambiguity.

2021-12-08

Viewpoint... A brief analysis of the rights and obligations of the parties in the family trust.

A trust, in short, is a special property management system and legal act in which the principal entrusts his property rights to the trustee based on his trust in the trustee, and the trustee manages and disposes of the property in his own name for the benefit of the beneficiary or for a specific purpose in accordance with the wishes of the principal. Trust should have been used as a specific legal structure to manage and pass on wealth, but in real life, due to the imperfection of the trust structure, a large number of disputes have been brought to court. How to make reasonable use of the trust structure to manage wealth and reduce the generation of disputes, this paper analyzes the rights and obligations of the three parties in the trust structure as the starting point. In a trust, three parties are generally involved, namely, the principal who invests the credit, the trustee who is trusted, and the beneficiary who benefits from the person. 1. the rights and obligations of the principal The settlor shall have the right to know the management, use, disposition and income and expenditure of his trust property, and shall have the right to request explanations from the trustee. At the same time, when the trustee disposes of the trust property in violation of the purpose of the trust, or is grossly negligent in managing the use or disposition of the trust property, the settlor shall have the right to remove the trustee in accordance with the provisions of the trust documents. 2. the rights and obligations of the trustee The trustee has more stringent obligations than the principal. The trustee shall abide by the provisions of the trust documents, handle the trust affairs with due diligence, manage the trust property, and perform the obligations of honesty, credibility, prudence and effective management. At the same time, the trustee shall not use the trust property for his own benefit, except to obtain remuneration in accordance with the provisions of the law or the agreement of the parties, nor shall the trust property under his management be confused with his own inherent property. Trustees play an extremely important role in family trusts. It can be said that the trustee is equivalent to the housekeeper of family wealth, and undertakes the important task of helping to maintain and increase the value of huge wealth. Therefore, the strength in asset management should not be underestimated. Under different legal circumstances, the trustee may have the ownership and disposal rights of the trust property at the same time or separately, and the security, increase or decrease and income of the trust property are directly related to it. Trustees in family trusts are broadly divided into natural persons and trusts. Choosing a natural person as a trustee is often not suitable for the design of a family trust. Because a family trust is a long-term wealth investment, a natural person may be unable to perform the duties of a trustee due to his physical condition, and a natural or accidental death may result in the absence of a trustee. It may also be unable to properly manage trust affairs due to limited ability, and may even cause moral risks of infringing trust property and harming the interests of beneficiaries due to lack of supervision, the occurrence of any of the above-mentioned situations will cause the management service of the family trust to a deadlock and affect the realization of its objectives; on the other hand, the trust company, as a statutory business trustee, is fully integrated into the country's financial supervision and has the advantage of institutional protection. At present, China implements a monopoly system for the operation of trust business, except for trust companies, banking, securities, insurance and other financial industries are not allowed to operate trust business, and other legal entities are not allowed to operate trust business unless they are licensed by law. Legal entities other than trust companies can only act as non-business trustees and cannot provide trustee services as their profit-making activities, which not only affects their overall understanding of trustee responsibilities, but also limits their professional investment in trustee capabilities, and cannot be included in the country's financial supervision like trust companies. 3. the rights and obligations of the beneficiaries The beneficiary is the person who has the right to benefit from the trust in the trust relationship. The rights of the beneficiaries mainly include the following aspects, such as: the various rights enjoyed by the trustee, the transfer and inheritance of the beneficial rights of the trust in accordance with the law, the use of the beneficial rights of the trust to pay off the debts that cannot be repaid at maturity, the trust documents do not provide for the attribution of the trust property, the priority of obtaining the trust property, etc. As far as the obligation of the beneficiary is concerned, it is generally accepted that when the trustee suffers a loss through no fault of his own in the course of handling the trust business, the beneficiary is obliged to accept the trustee's request for fees and deduct them from the trust income. When the legitimate rights and interests of the beneficiaries are infringed, the following remedies can be taken to circumvent the damage. First of all, when the trustee fails to hand over the trust property to the right owner in accordance with the provisions of the trust documents, the right owner has the right to claim the return of the trust property. The trust property here can be movable property, real estate, or marketable securities, debt, intellectual property, and equity. Secondly, after the termination of the trust, when the trust property is occupied by someone other than the trustee, the owner of the right has the right of recourse to that person, and Article 22 of China's Trust Law stipulates that if the trustee disposes of the trust property in violation of the purpose of the trust, and the transferee of the trust property knowingly accepts the property in violation of the purpose of the trust, it shall be returned. In addition, under section 49 of the Trust Act, after the termination of the trust, the beneficiary, if he is the owner of the trust rights, also has the right to claim damages and the right to remove the trustee. As the owner of the trust property, when the transferred trust property is lost due to the trustee's breach of the purpose of the trust, breach of management duties, improper handling of trust affairs, the right owner also has the right to claim compensation within a reasonable range for the portion of the loss caused by the trustee. Rights and obligations of 4. protectors In the general trust structure, in addition to the three basic trust subjects of the principal, trustee and beneficiary, it is often possible to establish a trust role called the protector (protector). In China's Trust Law, the duties of the supervisor focus on the protection of the interests of beneficiaries and the realization of public welfare purposes, while the main purpose of setting up a protector in a family trust is to implement the wishes of the principal and protect the beneficiaries. In general, common protectors' rights include:(1) appointment and removal of trustees;(2) request/consent of trustees to change the jurisdiction of the trust;(3) request/consent to increase or decrease beneficiaries;(4) request/consent to distribution of the trust;(5) request/consent to early termination of the trust; and (6) appointment of successor protectors. The above-mentioned rights are all important conditions for effective supervision of the trustee in the process of trust survival. The above-mentioned rights enjoyed by the trustworthy protector can better ensure that the trust survival and operation meet the wishes of the establishment, and the use and distribution of trust assets are more in line with the maximization of the interests of the beneficiaries, but at the same time, it must be noted that the rights of the protector should not be too large, otherwise it may lead to serious adverse consequences. Therefore, when setting up protectors, in addition to fully considering the general rules of the regular, the protectors, their scope of duties, and selection rules should also be designed in individual cases, such as "adapting measures to local conditions and varying from person to person", so that the "protectors" can be named and real, better perform their duties, and escort the inheritance of family wealth from generation to generation. George Soros once said, "There is no reproach for taking risks, but at the same time remember that you must not put all your eggs in one basket." This article analyzes the rights and obligations of the parties in the family trust, so that more people can understand this "slightly unfamiliar" field, and avoid the situation of losing both sides in the "Lunan Pharmaceutical Family Trust Equity Dispute.

2021-12-06

Real estate perspective: the effectiveness of the "housing debt" agreement signed by real estate enterprises.

Foreword In the past year since the implementation of the "three red lines" policy, the underlying logic of the real estate industry has undergone fundamental changes. Affected by the increase in control rules, coupled with the impact of the epidemic, the narrowing of loan policy and other reasons, some real estate enterprises in the face of financial pressure, commercial housing may be delayed delivery and other conditions, will take a variety of coping strategies, including "housing debt" way to finance or pay off the project and other debts. By studying the relevant judgments of "house-to-house debt" in recent years, the author found that the court has no uniform rules for determining the legal nature and validity of the "house-to-house debt" agreement, and the appeal rate of cases is high and there are often subversive judgments between different trial-level courts. Therefore, real estate companies need to further clarify its legal effect when signing the "house-to-debt" agreement, in order to better play the role of the "house-to-debt" agreement as a debt alternative performance plan or financing method, and help real estate companies solve the root cause. problem. problem focus The "house-to-house" agreement belongs to the category of debt-to-property, debt-to-property is an agreement between the parties on the debt and debt relationship that has been or will be established, when the agreed conditions are achieved or the agreed period expires, the creditor receives other kinds of payment to replace the original payment, and then the original debt and debt relationship is eliminated. This paper will explore the legal effect of the "house-to-house debt" agreement signed between the housing enterprise and other creditors such as the buyer or construction unit in different circumstances through case and legal analysis. Case Study A house-to-house debt-to-debt agreement signed after the expiration of the (I)'s debt performance period. 1. Case No.:(2019) Yuemin Zhong No. 2730 Case introduction: Guo Shengcui once bought room 3-Cx3 in Tao X residential area developed by Yihai Company at the price of 4.7 million yuan. For some reason, both parties reached a "check-out agreement" through negotiation. Both parties agreed to terminate the "commercial housing sales contract". Yihai Company returned Guo Shengcui's purchase price of 4.7 million yuan and compensated Guo Shengcui for the loss of 500000 yuan. Subsequently, both parties signed a loan contract, and the above-mentioned check-out payment of 5.2 million yuan was converted into a loan. Guo Shengcui lent RMB 1.8 million yuan to Yihai Company, with a total loan amount of RMB 7 million yuan for a period of one year until July 4, 2013. On October 1, 2013 after the expiration of the performance period, Guo Shengcui and Yihai Company signed two "Guangdong Province Commercial Housing Sales Contracts", agreeing that Guo Shengcui would purchase houses 5-Ax7 and 5-Bx7 in Tao X Community of Yihai Company for 3 million yuan and 4 million yuan respectively. Yihai Company should deliver the above two commercial houses to Guo Shengcui for use before December 31, 2014, and went through the real estate presale registration with the government department on May 15, 2014, however, Yihai Company has never been able to complete the delivery of the house, so Guo Shengcui filed a lawsuit with the court to confirm that the two "Guangdong Province Commercial Housing Sales Contracts" signed with Yihai Company were legal and valid, and ordered Yihai Company to continue to perform the commercial housing sales contract. The court held that there was a loan contract relationship between the plaintiff Guo Shengcui and Yihai Company. After the expiration of the loan period, the "Commercial Housing Sales Contract" was signed through negotiation, and the original loan principal of 7 million yuan was paid off as the purchase price of the commercial housing. After the two sides to the real estate management department for the presale registration procedures. With reference to the trial guidelines of the Supreme People's Court guiding case No. 72, the parties in this case transformed the loan contract relationship into a commercial housing sales contract relationship, and converted the principal and interest of the loan into the paid purchase price. The basic conditions of the commercial housing, the total price of the commercial housing, unit price, payment method and time, delivery conditions and date, etc. stipulated in the signed "Commercial Housing Sales Contract" have the necessary terms of the commercial housing sales contract. The "Commercial Housing Sales Contract" is the true intention of both parties. The content does not violate the mandatory provisions of laws and administrative regulations and should be deemed legal and effective. Therefore, the basic legal relationship between the parties in this case is the contract relationship for the sale of commercial housing. Yihai Company claims that the basic legal relationship in this case is the loan contract relationship, which is inconsistent with the facts. And the "loan contract" and "commercial housing sales contract" on the two sets of real estate mortgage guarantee, does not conform to the "the People's Republic of China Guarantee Law" on the "liquid contract prohibition" situation. Therefore, Yihai's above claims lack legal basis. The basic legal relationship between the plaintiff Guo Shengcui and Yihai Company is the relationship between the sale and purchase of commercial housing, which is based on sufficient evidence and is not improper. The Court supports the continued performance of the contract for the sale and purchase of commercial housing. 2. Case No.:(2021) Lu 02 Min Zhong No. 3021 The court held that this case involved three debt-for-property agreements reached after the expiration of the performance period, namely, the "Project Payment Agreement" signed between Boyang Real Estate Company and CCCC No. 1 Aviation Bureau No. 2 Company, the "Agreement" signed between CCCC No. 1 Aviation Bureau No. 2 Company Jian'an Branch and Zhonglian Concrete Company, and the "Housing Payment Agreement" signed between Zhonglian Concrete Company and Jiao Mingzhi. The three debt-for-property agreements were agreed by the parties, and the meaning was true. The content of the agreement did not violate the mandatory provisions of laws and administrative regulations, and was established and valid in accordance with the law. An agreement reached by the parties after the expiration of the debt settlement period may constitute a change of debt, I .e. the creation of a new debt and the elimination of the old debt, or it may be a new debt settlement, I .e. the creation of a new debt, which coexists with the old debt. Based on the concept of protecting claims, the change of debt generally requires the parties' clear agreement to eliminate the old debt, otherwise, the nature of the debt settlement agreement reached by the parties after the expiration of the debt settlement period should generally be the new debt settlement. In other words, after the expiration of the debt settlement period, the creditor and the debtor signed a debt-to-debt agreement, if not agreed to eliminate the original money payment debt, should be found to be the parties to add a separate way of performance of the debt, rather than the original money payment of the debt. In the new debt settlement, the new debt as a method of performance of the old debt, the creditor in principle should first request the performance of the new debt. If the debtor fails to perform the new debt, the creditor may either continue to perform and default on the basis of the new debt claim, or resume the performance of the old debt. In this case, although Boyang Real Estate Company signed the "Paris No.1 Subscription Agreement" with Jiao Mingzhi on the house involved in the case and delivered the house involved to Jiao Mingzhi, the law of debt repayment in property was taken as the promise contract. "Delivery of property" does not mean "transfer of ownership". As the house involved in the case is real estate, Boyang Real Estate Company only delivered the house involved to Jiao Mingzhi is not enough to realize the purpose of settlement, this purpose can only be achieved after the transfer of the house involved is registered in the name of Jiao Mingzhi. By the same token, Jiao Mingzhi is fundamentally different from the expectation right of property rights arising from the purchase and sale based on the agreement of debt in rem, and his enjoyment as a creditor is still essentially a debt of money and should not take precedence over another debt of money, so the trial court ruled in accordance with the law to reject his objection to enforcement. At present, the new debt arising from the debt-for-property agreement cannot be implemented due to the fact that Boyang Real Estate Company was enforced by the original court to enforce the house involved. Jiao Mingzhi is also unable to realize the purpose of the debt-for-property agreement. He requests to cancel the "debt-for-property agreement" signed with Zhonglian Concrete Company, which contains the payment for xx households in Unit xx, Building xx, Paris 1, Chengyang District, Qingdao City. The reason is justified and should be supported. Based on the relativity of the contract and the principle of settlement of the new debt, Jiao Mingzhi has the right to resume the performance of the old debt, which requires Zhonglian Concrete Company to return 1443978.9 yuan to support it, but it needs to be clear that the nature of the money is not the purchase of the house but the material money. The (II) debt settlement agreement signed before the expiration of the debt performance period. Case No.:(2021) Liao 01 min zong No. 2393 The court held that article 45 of the minutes of the national court's civil and commercial trial work conference stipulates that if the parties reach an agreement on debt relief before the expiration of the debt performance period, the debt relief has not yet been delivered to the creditor, and the creditor requests the debtor to deliver it, the people's court shall explain to it that it shall bring a lawsuit according to the original creditor's right and debt relationship. If the parties still refuse to change their claims after the interpretation, they shall reject their claims, but this shall not affect their filing of separate proceedings based on the original creditor's rights and debts. Liaoning construction group co., ltd. admitted in the second instance that as of August 3, 2013, Liaoning fulespu real estate development co., ltd. had not settled with Liaoning fulespu real estate development co., ltd. and the amount of project funds still owed by Liaoning fulespu real estate development co., ltd. was not clear. at this time, the debt performance period for Liaoning fulespu real estate development co., ltd. to pay Liaoning construction group co, therefore, there is only a credit and debt relationship between Liaoning Construction Engineering Group Co., Ltd. and Liaoning Fulespu Real Estate Development Co., Ltd., and Liaoning Construction Engineering Group Co., Ltd. has no right to require Liaoning Fulespu Real Estate Development Co., Ltd. to deliver the house involved in the case. The court of first instance confirmed that Liaoning Construction Engineering Group Co., Ltd. does not have ownership of the house involved in the case. (III) the nature of the mortgage agreement is a non-contract or a practical contract. 1. Practical Contract-(2021) Liao 01 Min Zhong No. 12130 The court held that: to the housing debt contract as a practical contract, so the housing debt must be completed to complete the housing change registration procedures. Thus, the original claim between the creditor and the debtor is not extinguished by the agreement to settle the debt with the house, and in the debt with the house only the property is registered and the debtor is extinguished. Only the consent of the house to pay the debt, but not the transfer of property rights to the debt-relief house, the original claim has not been eliminated, the purpose of the debt can not be achieved. After verification by our hospital, the two houses involved in the case are still registered in the name of the defendant Xinyijiang Company (construction unit). Although the plaintiff Li Dengfu signed an offset agreement with the partner of the defendant Metallurgical Company (construction unit) and issued a receipt, the plaintiff did not actually possess or transfer the house involved in the case to the plaintiff's name, so the creditor's rights enjoyed by the plaintiff have not been eliminated, the court does not support the defendant's metallurgical company's defense of 6074475 yuan in debt with housing. The court of second instance on the issue of whether the agreement to settle the debt with the house has actually been fulfilled. The appellant's 12th Metallurgical Company believed that the two houses had been priced at 6074475 yuan to cover the project price. However, the two houses involved in the case have now been sold to outsiders and occupied by outsiders. Li Dengfu has not actually received or controlled the houses, and the appellant has not provided evidence to prove that Li Dengfu had received the houses involved and occupied them. The appellant, as the party who used the house to offset the debt, has the obligation to track, understand and control the situation of the house to offset the top of the project, and ensure the implementation of the agreement on the top of the house. The current house has not been registered in Li Dengfu's name, nor has it actually delivered to Li Dengfu. The conditions for Li Dengfu to obtain the ownership of the house are not available now, so the agreement on the actual implementation, the appellant's 12th Metallurgical Company claimed that the two houses had been priced at 6074475 yuan to cover the project price, which had no factual basis and was not supported by the court. 2. Nuocheng Sex Contract-(2021) Yu 10 Min Zhong No. 787 The court held that after Wang Gaofeng, Wang Xiaoyan, Hao Shuai Bing and Volkswagen Company reached the "Liquidation Agreement for the Withdrawing of Fairview Jiayuan Commercial Building Project", Hao Shuai Bing failed to pay part of the project payment obligations as agreed. However, after negotiation, Hao Shuai Bing, Wang Gaofeng and Wang Xiaoyan reached a separate agreement to settle debts with houses. Wang Xiaoyan has signed a commercial housing sales contract with Kaixiang Company, the seller of real estate and parking space, and paid a housing maintenance fund. The agreement on the settlement of the house debt is a non-contract, except for the express agreement of the parties, the agreement on the settlement of the house debt signed by the parties after the expiration of the settlement period of the project does not take the creditor's realistic receipt of the debt, or the acquisition of property rights such as the ownership and use of the debt, as an element of establishment or entry into force. The contract is valid as long as the parties' intentions are true and the contents of the contract do not violate the mandatory provisions of laws and administrative regulations. Therefore, Hao Shuaibing and Wang Gaofeng and Wang Xiaoyan reached a valid agreement to repay debts with houses, and Wang Xiaoyan signed a commercial housing sales contract with Kaixiang Company and paid a residential maintenance fund. The purpose of the contract can basically be realized. Therefore, it is not improper for the court of first instance not to support 1133952 yuan in Wang Gaofeng and Wang Xiaoyan's litigation request. On the question of whether Hao Shuaibing should support the overdue payment liquidated damages, although the Liquidation Agreement for the Project of Jinxiu Jiayuan Commercial Building stipulates the overdue payment liquidated damages, Wang Gaofeng, Wang Xiaoyan and Hao Shuaibing later reached an agreement on the payment of unpaid project funds. The agreement on the payment of overdue payment did not clearly stipulate whether the liquidated damages agreed in the previous agreement still need to be paid. Therefore, the court of first instance determined that both parties had formed new debts, it is not improper not to support the late payment liquidated damages agreed upon in the performance of the new debt. For the remaining amount of 288648 yuan because Hao Shuaibing did not pay on time, so he should bear the liability for breach of contract, the court of first instance to the National Interbank Lending Center announced the same period four times the one-year loan market quotation rate as the calculation standard. legal analysis The effect of the above-mentioned illustration divides the court's rules for determining the validity of a home-to-home debt agreement in accordance with the conclusion of a home-to-home debt agreement before/after the expiration of the period of performance of the debt. The internal logic is that if the debtor is eager to repay the debt before the expiration of the debt performance period, there may be a certain cognitive deviation between the amount of house price and the actual amount of debt. Therefore, the court will consider the legal effect of the agreement in combination with laws and regulations and the actual situation when determining the agreement signed before the expiration of the performance period. After the expiration of the period of performance of the debt, the conclusion of the debt-to-debt agreement is the agreement reached by both parties in the case of the value of the debt and the amount of the debt to be determined, as long as there is no malicious harm to the interests of third parties and other reasons, the court will support the delivery of the debt. The following is a description of the common principles of "house-to-house debt" treatment under existing laws: A house-to-house debt-to-debt agreement signed after the expiration of the (I)'s debt performance period. Article 410 of the Civil Code stipulates the conditions, methods and procedures for the realization of the mortgage right, that is, if the debtor fails to perform the debt due or the realization of the mortgage right agreed by the parties, the mortgagee may agree with the mortgagor to pay the mortgaged property at a discount or at the price of the proceeds from the auction or sale of the mortgaged property. If the agreement harms the interests of other creditors, the other creditors may request the people's court to revoke the agreement. If the mortgagee and the mortgagor fail to reach an agreement on the manner in which the mortgage is realized, the mortgagee may request the people's court to auction or sell the mortgaged property. In addition, the "Minutes of the National Court Civil and Commercial Trial Work Conference" (Law [2019] No. 254, hereinafter referred to as the "Ninth People's Conference Minutes") 44 stipulates: "The parties reach an agreement to offset the debt with property after the expiration of the debt performance period. If the creditor has not yet delivered to the creditor, and the creditor requests the debtor to deliver it, the people's court should focus on examining whether the debt-in-property agreement maliciously damages the legitimate rights of the third party. After examination, if the above circumstances do not exist and there are no other invalid reasons, the people's court shall support it in accordance with the law." After the expiration of the debt term, the two parties carried out reconciliation, liquidation, and reached an agreement on the transformation of the loan contract relationship into a housing sales contract relationship, the parties signed a housing debt agreement to eliminate the original debt and debt relationship, the establishment of a new sales contract relationship,

2021-12-06

Point of View...............................................................................................

Foreword At present, most of the cases of franchise contract disputes contacted by judicial practice are caused by dishonest franchise enterprises. In the agency activities, the author participated in several cases of franchise contract disputes, for franchising and franchise contract disputes, the author based on practical experience and reading related articles and books, organized as follows, with a view to enlightening readers. Text The Historical Development of 1. Franchising 1. On November 14, 1997, the former Ministry of Domestic Trade of China issued the Measures for the Administration of Commercial Franchising (for Trial Implementation), which stipulates that franchising refers to the franchisee's granting of his own trademarks (including service trademarks), trade names, products, patents, proprietary technologies and business models to the franchisee in the form of contracts, and the franchisee engages in business activities under the unified business model of the franchisor in accordance with the provisions of the contract, and pay the corresponding fees to the franchisor. 2. On December 31, 2004, the Ministry of Commerce issued the Measures for the Administration of Commercial Franchising, which was formally implemented on February 1, 2005. The Measures stipulate that commercial franchising means that through signing a contract, the franchisor will have the right to grant trademarks, trade names, business models and other business resources to others for use by the franchisee. The franchisee shall engage in business activities under a unified business system in accordance with the contract and pay franchise fees to the franchisee. 3. On January 31, 2007, the 167th executive meeting of the State Council passed the Regulations on the Administration of Commercial Franchising. Franchising refers to enterprises (hereinafter referred to as franchisees) that have registered trademarks, enterprise logos, patents, patents and other operating resources. The franchisees license their operating resources to other operators (hereinafter referred to as franchisees) in the form of contracts, and the franchisees operate under a unified operating model in accordance with the contract, and to the franchisor to pay franchise fees for business activities. In the same year, the Ministry of Commerce promulgated the Measures for the Administration of Information Disclosure of Commercial Franchises and the Measures for the Administration of the Filing of Commercial Franchises. 4. On November 7, 2011, the Ministry of Commerce revised the Administrative Measures for the Filing of Commercial Franchises. On January 18, 2012, the Ministry of Commerce revised the Measures for the Administration of Information Disclosure of Commercial Franchises. Characteristics of 2. franchising The basic characteristics of franchising are: (1) the franchisor owns the business resources such as registered trademarks, enterprise logos and patents; (II) the franchisee to use the franchisor's business resources under a specific business model according to the authorization of the franchisor; (III) the franchisee to pay the franchisor's franchise fees in accordance with the agreement. (I) academic perspective It is generally believed that franchising has five essential characteristics: (1) Franchising is a business model that uses one's own know-how to combine with the capital of others to expand the scale of operations. Thus, franchising is an expansion of technology and brand value, not capital. (2) Franchising is an organization in which the right of management controls ownership, in which the franchisee invests in the franchise and has the right to own and manage the store, but does not have the right to make management decisions. (3) Franchising is a win-win business model. The franchise relationship can only be effectively maintained if the franchisor is allowed to develop more efficiently than the direct business, and if the franchisee is allowed to gain more benefits than the business alone. (4) Franchising is a special kind of transaction. A special commodity is traded in a franchise, which includes a series of tangible or intangible commodities such as products, patents, business models, etc. Unlike a general transaction, the franchisor and the franchisee sign a franchise contract, which means the beginning of a longer-term transaction between the two parties. During the term of the contract, the franchisor and the franchisee shall maintain close and continuous mutual support and cooperation. (5) Franchising is an intelligent form of business organization. Franchising enables the franchisee to make the most of the combination, the use of their own advantages, and maximize the absorption of a wide range of social resources, the franchisee to reduce the risk of entrepreneurship and time, capital and other entrepreneurial costs. (Cite: See Hu Xiaosong, ed., Introduction to Franchising, Renmin University of China Press, 2011, p. 17. Chen Axing, Wu Yunliang, ed., Franchising, China Business Press, 2006, p. 6.) Views of (II) practitioners In practice, it has been argued that, starting from the definition of the Regulations, franchising consists of three basic elements: One is a resource, that is, the franchisor must have a registered trademark, corporate logo, patents, know-how and other operating resources; The second is a way, that is, a contractual relationship between the franchisor and the franchisee; the third is a model in which the franchisee operates under a unified business model. This unified model is reflected in all aspects, ranging from management, promotion, quality control, etc. to the decoration design of the store and even the setting of signs. In general, this model has the characteristics of unification, standardization and standardization. The core of franchising is the paid output of intangible assets. (Cited: Tu Zhi, Editor-in-Chief, Li Guangxing, and Yang Fan, Deputy Editor-in-Chief: "Application of Commercial Franchising Law", Kyushu Publishing House, 2010, p. 2.) The difference between (III) franchise and other business models. 1, the difference between franchising and chain management. Compared with franchising, chain management is a superior concept. The scope of chain management is far greater than franchising. The definition of chain operation by China Chain Management Association [35] is: "generally refers to a number of stores operating similar goods or services, combined into a consortium in a certain form, specialized division of labor under the overall planning, and centralized management is implemented on the basis of division of labor to simplify complex business activities in order to obtain economies of scale". According to the Opinions on the Operation and Management of Chain Stores issued by the former Ministry of Internal Trade on March 27, 1997, chain stores refer to a number of stores that operate similar commodities and use a unified trade name, and under the management of the same headquarters, adopt unified procurement or grant concessions, etc., to achieve economies of scale. Article 4 of the opinion stipulates that chain stores include the following three forms:(1) direct chain stores. The stores of the chain are all wholly owned or controlled by the headquarters and are operated under the direct leadership of the headquarters;(2) voluntary chain. The stores of the chain store are all independent legal persons, the ownership relationship of their respective assets remains unchanged, and they are jointly operated under the guidance of the headquarters;(3) franchise chain (or franchise chain). The stores of the chain store sign a contract with the headquarters to obtain the right to use the trademark, trade name, business technology and sales headquarters to develop goods, and the right to operate is concentrated in the headquarters. 2, the difference between franchising and direct sales. (IV) the "Regulations on the Administration of Direct Selling" promulgated by the State Council in 2005 stipulates: "The direct selling referred to in these regulations refers to the distribution method in which direct selling companies recruit direct sellers, and the direct sellers directly sell products to end consumers outside the fixed business premises". First, the legal relationship is different. Second, direct selling companies are different from franchisors. Third, direct sellers and franchisees are different. Fourth, the purpose of legislation is different. Fifth, the field of application is different. Direct selling is mainly applicable to the retail sector. Sixth, responsibility is different. (Source: Beijing Higher People's Court, Intellectual Property Division, "Interpretation of the Principles of Commercial Franchise Contracts and Trial Practice" Section 1) 3. franchise contract dispute A franchise contract is a continuous contract, and if the cooperation between the franchisor and the franchisee can develop smoothly as expected at the time of the original contract, then each franchise will become a successful franchise system. However, in reality, there are often dishonest franchisors and franchisees, and it is inevitable that the market will change and deviate from the original franchise forecast, and there will be matters that were not expected at the time of the establishment of cooperation and no agreement can be reached. Therefore, the root cause of franchise disputes is that the franchisor and the franchisee are different subjects of interest, and franchise contract disputes will inevitably occur based on conflicts of interest. Lawyer Case: The author helped the above-mentioned licensees to recover the franchise fee and interest in the franchise contract dispute case between Wang Moumou, Liu Moumou, Li Moumou, Lu Moumou and other 6 people and Bright Eyes Biological Company. The six parties signed the "Joining Agency Agreement (Prefecture-level Agency)" with Mingmou Company at different times. The contract respectively stipulated the joining method, expenses, agency period, rights and obligations, etc. The attached table after the contract was the "Equipment Configuration List of Mingmou Lifetime Vision Rehabilitation Project". Several parties remitted money to the franchisor company and its legal person respectively. The latter parties want to terminate the contract with Bright Eye and demand a refund of the franchise fee. The lawyer carefully consulted the "franchise agency agreement" and found the relevant industry norms and effectiveness. Finally, according to the documents issued by the general office of the National Health Commission and other six departments, it was determined that the franchisor's franchise behavior was an act of deceiving consumers and seeking illegitimate interests. It used the "health care cream" without quality inspection to carry out vision rehabilitation physiotherapy, and exaggerated and fabricated the treatment effect, it has disrupted the regulatory order of the myopia treatment and health care products market. After the court heard the judgment, it was found that the franchise agreement violated the public order and good customs of the society and harmed the public interest of the society. The franchise agency agreement was found to be invalid, and the franchise fees of several parties were returned, which achieved good results. Common Types of 4. Franchise Contract Disputes and the Concept of Court Judgment Common Types of (I) Franchise Contract Disputes 1, confirm the franchise contract invalid dispute. 2, the cancellation of the franchise contract dispute. 3, the franchise contract to terminate the dispute. 4, due to the performance of the franchise contract in breach of contract, the request to terminate the contract or bear the liability for breach of contract. The Judgment Idea of (II) Franchise Contract Disputes First, respect for contractual autonomy and appropriate protection of relatively vulnerable franchisees. Second, the reasonable allocation of the burden of proof, reasonable interpretation. When the franchisee proves that the franchisor constitutes fraud, false propaganda and fails to fulfill the obligation of information disclosure, taking into account the actual ability of the franchisee to prove, the burden of proof is reasonably allocated, and the litigation relationship between the two parties is balanced by the transfer of the burden of proof. Many franchisees sue is not clear whether the contract is invalid or cancel the contract or terminate the contract, at this time the judge needs to exercise the right of interpretation in a timely manner, according to the basic case to guide the parties to adjust the claim. For the legal consequences of the contract being confirmed invalid, revoked or terminated, the judge should also explain in time that, with the consent of the parties, it can be dealt with together in one case to reduce the burden of the parties. Third, deal with related cases, and strive to achieve the unity of legal and social effects. (Cited: Beijing Higher People's Court, Intellectual Property Division, "Interpretation of the Principles of Commercial Franchise Contracts and Trial Practice") Relevant laws and regulations 1. Regulations on the Administration of Commercial Franchising, issued by the State Council, 2007 "Competing laws and regulations: Trademark Law of the People's Republic of China (2019 Revision) the People's Republic of China Copyright Law Anti-Unfair Competition Law of the People's Republic of China (2019 Revision) 」 2. Measures for the Administration of Information Disclosure of Commercial Franchises, Ministry of Commerce, 2012 3. Guiding Opinions of Beijing Higher People's Court on Several Issues Concerning the Application of Laws in Hearing Disputes over Commercial Franchise Contracts, issued by: Beijing Higher People's Court, 2011; "The original guiding opinions and management regulations have not been revised, and will still refer to the provisions of the original the People's Republic of China Contract Law, the General Principles of the People's Republic of China Civil Law and other laws and regulations. For example, Article 13," If a party to a franchise contract fails to perform the contract as agreed, making it difficult to achieve the fundamental purpose of the contract, the other party may terminate the contract in accordance with Articles 94 and 96 of the the People's Republic of China Contract Law 」

2021-12-05

Viewpoint | Objection of an outsider to the subject matter of execution-a lawsuit for execution objection

Introduction Today's judicial circles are generally faced with the problem of difficult enforcement, so the state has designed a litigation preservation system to ensure enforcement. However, a new problem arises. What if someone else's property is mistakenly sealed during preservation, or if someone else's property is executed during execution? Since 2007, the civil procedure law of our country has established the lawsuit of execution objection, which is the first time that the legislative provisions of the lawsuit of execution objection appear in our country. The interpretation of several issues in the implementation procedure of the Civil Procedure Law promulgated in 2008 (hereinafter referred to as the interpretation) stipulates the cause, subject of litigation, pre-procedure and other aspects of the lawsuit of execution objection. In 2012, the decision on amending the the People's Republic of China Civil Procedure Law was passed to retain the relevant contents of the lawsuit of execution objection, and only the serial number of the articles was revised until the promulgation of the Judicial Interpretation of the Civil Procedure Law in 2015, we have improved some operational details such as the filing procedures related to the execution of the objection, the gap between the outsider's objection procedure and the service procedure, and with the emergence of each law and regulation related to the execution of the objection, the relevant laws and regulations on the execution of the objection have been continuously improved and developed. The purpose of this paper is to discuss how to provide relief to outsiders in the execution objection suit, with a view to enlightening the reader. Text If an outsider claims ownership of the subject matter of execution or has other substantive rights sufficient to prevent the transfer or delivery of the subject matter of execution, he may object to the enforcement court. In the course of execution, if an outsider raises a written objection to the subject matter of execution, the people's court shall examine it within 15 days from the date of receipt of the written objection, and if the reason is established, it shall rule to suspend the execution of the subject matter; if the reason is not established, it shall rule to reject it. If an outsider or party to the case is not satisfied with the ruling and believes that the original judgment or ruling is wrong, it shall be handled in accordance with the trial supervision procedure; if it has nothing to do with the original judgment or ruling, it may bring a lawsuit in a people's court within 15 days from the date of service of the ruling. During the period of examination of objections by outsiders, the people's court shall not impose sanctions on the subject matter of enforcement. If an outsider files a lawsuit, the execution shall not be suspended during the period of the lawsuit; If an outsider's claim has a reason or provides sufficient and effective guarantee to request the suspension of execution, it may order to stop the disposition of the subject matter of execution; if the applicant for execution provides sufficient and effective guarantee to request the continuation of execution, it shall continue to execute. If an outsider requests to stop execution, requests to cancel the seizure, seizure or freezing, or if the executor requests to continue execution in error, causing losses to the other party, compensation shall be made. Procedure for Objection Subject of objection: outsider Reason for objection: the right of an outsider to claim the subject matter of execution Objection procedure: a written objection to the enforcement court during enforcement Examination of the objection: the court shall conduct the examination within 15 days from the date of receipt of the written objection Results of the review: if the objection is established, the execution of the subject matter shall be suspended; if the objection is not established, the objection of the outsider shall be rejected. Treatment of dissent 1, trial supervision procedures to deal. If an outsider is not satisfied with the execution objection ruling and believes that the original effective judgment or ruling is indeed wrong, he may apply to the people's court that made the original judgment, ruling or mediation statement within 6 months from the date of service of the execution objection ruling. 2, the implementation of the objection to the action. If an outsider or party to the case is not satisfied with the execution objection ruling and considers that it has nothing to do with the original effective judgment or ruling, he may file an execution objection lawsuit with the enforcement court from 15 days from the date of service of the ruling.

2021-12-05