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Presentation of 1. issues Article 19 of the Enterprise Bankruptcy Law stipulates that "after the people's court accepts the bankruptcy application, the preservation measures relating to the debtor's property shall be lifted and the enforcement procedure shall be suspended." The administrator may, in accordance with the foregoing provisions, apply for the lifting of all protective measures against the debtor's property, but it is difficult to lift the protective measures against the shareholders' equity holdings. After the reorganization plan adjusts the rights and interests of the contributors, the frozen state of equity will prevent the new and old shareholders from completing the registration of equity changes on their own, thus hindering the implementation of the reorganization plan. In order to solve this problem, the insolvency representative tries to find various ways, such as negotiation, acquisition of creditor's rights, setting settlement conditions, determining the transfer price of formal equity, auction of equity, application to the enforcement court for cancellation, and filing of enforcement objections. These methods have their own disadvantages, such as negotiation or acquisition of creditor's rights, which often increases time or money costs and is unfair to other creditors. In the reorganization plan, the lifting of the equity freeze as a condition for settlement does not necessarily lift all the freezes. Some creditors would rather not receive the payment than cooperate with the unsealing, and this method is not binding on the creditors of non-bankrupt enterprises; when the reorganization plan stipulates that the transfer price in the form of 1 yuan, 10 yuan or 100 yuan will be paid to the first cover and then apply to the enforcement court to lift the freeze on all shares. This practice not only confuses the adjustment of investors' rights and interests with the transfer of shares, but also divides the debt service funds from the transfer price of shares, and the transfer price lacks persuasiveness and basis, which has major logical defects. If the reorganization investor is determined by auction of shares, it is necessary to adjust the rights and interests of the investor before the equity auction, then it is also necessary to face the issue of the equity freeze; apply to the enforcement court to lift the seizure or file an enforcement objection, some courts have ruled to lift the seizure measures, but many courts have rejected the objection. As early as 2012, judges Zhang Yongjun and du Jun of the Supreme people's Court published a paper in the Application of Law, arguing that "the reorganization procedure takes precedence over the ordinary enforcement procedure, and the nature of equity reduction is not an intended transfer but more similar to a legal transfer. After the reorganization plan is approved by the people's court, it will have the nature of an effective legal document. The people's court and other relevant administrative organs should fully guarantee the implementation of the equity reduction in the plan, the equity freeze should be lifted." Professor Wang Xinxin published a paper in the People's Court News in 2016 and argued: "The reorganization plan approved by the court is mandatory for the change of the investor's equity, rather than the complete voluntary transfer of all parties, which is a judicial transfer of equity. Therefore, the court should issue a notice of assistance in execution in accordance with the company's regulations to ensure the implementation of the reorganization plan approved by it." And pointed out that "in the practice of the reorganization of listed companies in China in recent years, there are many cases involving the change of shareholders' equity, all of which are implemented by the court issuing a notice of assistance in execution." If the court accepting the bankruptcy case issues a notice of assistance in execution, requiring the commercial registration authority to register the change of equity under the name of the designated subject, this is the most direct and effective way to solve the problem of equity freeze. The judicial practice of changing the registration of frozen shares directly by the court accepting bankruptcy cases in 2.. Due to the imperfect provisions of the current Enterprise Bankruptcy Law, local courts have made various guidance within the legal framework to solve many practical problems encountered in bankruptcy cases. The Guangdong High Court, the Beijing Bankruptcy Court, the Guangzhou Intermediate Court, the Shenzhen Intermediate Court, and the Jiangsu High Court have made it clear that the court can assist in the implementation of the method of changing the registration of frozen shares. 1. Paragraph 2 of Article 98 of the guidelines on several issues concerning the trial of Enterprise bankruptcy cases issued by the Guangdong Provincial higher people's Court on November 29, 2019 stipulates: "when the people's court approves the reorganization plan, it shall be examined in the light of the value of the debtor's assets, liabilities, the proportion of the debtor's compensation in the reorganization plan, and the size of the retained rights and interests of the original shareholders after adjustment. After examination and approval, it shall be implemented in accordance with the provisions of the reorganization plan. If the people's court or registration authority that has taken measures to seal up the shares refuses to enforce them, the administrator may apply to the people's court for assistance in enforcement." 2. Article 132 of the "Regulations for Handling Bankruptcy Reorganization Cases (Trial)" formulated by the Beijing Bankruptcy Court on December 30, 2019 stipulates: "During the implementation of the reorganization plan, investors, creditors, etc. refuse to cooperate without justifiable reasons. If the rights and interests change procedures, the people's court may issue a notice of assistance in execution to the relevant units based on the application of the administrator and interested parties." 3. Article 10, paragraph 2, of the "Implementation Opinions on Promoting the Exit of Bankrupt Enterprises from the Market" jointly issued by Guangzhou Intermediate People's Court and Guangzhou Market Supervision Administration on May 26, 2020, No. 88 of Guangzhou Zhongfa [2020] stipulates: "Bankruptcy and reorganization enterprises need to change shareholders' matters due to the adjustment of investors' rights and interests, but the shares held by the original shareholders of the enterprise are pledged or sealed up, the administrator may go to the corresponding market supervision department for equity change registration with the case acceptance ruling, the approval of the reorganization plan ruling, the decision of the designated administrator (liquidation group), the notice of assistance in execution and other materials." 4. Article 7 of the minutes of the meeting on issues related to the cancellation of enterprises jointly issued by the Shenzhen Intermediate people's Court and the Shenzhen Municipal Market Supervision Administration on September 25, 2020 stipulates: "if a bankrupt and reorganized enterprise needs to change shareholders' matters due to the adjustment of the rights and interests of investors, but if the shares of the enterprise held by the original shareholders of the enterprise are pledged or sealed up, the people's court shall issue a notice of assistance in execution, the administrator may go to the commercial registration authority to register the change of equity with the ruling on the acceptance of the case, the ruling on the approval of the reorganization plan, the decision of the designated administrator (liquidation group) and the notice of assistance in execution issued by the people's court." 5. Article 5 of the "Implementation Opinions on Doing a Good Job in the Registration of Bankrupt Enterprises and Optimizing the Business Environment" jointly issued by the Jiangsu Provincial Higher People's Court and the Jiangsu Provincial Market Supervision Administration on November 16, 2021 stipulates: "The registration of change of shareholders of bankrupt enterprises shall be handled in accordance with the law. According to the bankruptcy reorganization plan approved by the people's court, it is necessary to change the registration of shareholders of the bankruptcy reorganization enterprise, but because the equity held by the original shareholders of the enterprise has been pledged or sealed up by the court, if the administrator is unable to apply for the registration of shareholder change, the bankruptcy court may issue a notice of assistance in execution, notify the market supervision department to assist in lifting the seal, removing the pledge, and handle the registration of equity change. After the seizure is lifted or the pledge is removed, the bankruptcy court shall promptly inform the pledgee and the court that originally took the protective measures of the situation." 3. Court Accepting Bankruptcy Cases Changes the Legality Basis of Frozen Equity Registration by Co-Enforcement It is the most effective way to solve the obstacles of equity freezing that the court accepting bankruptcy cases directly requires the commercial registration authority to complete the change registration by means of the notice of assistance in execution. In the absence of clear legal provisions, why do places such as Guangzhou and Shenzhen dare to issue the above judicial documents, and why do some areas dare to issue direct co-enforcement transfers? In addition to the admirable spirit of social responsibility, the more important support lies in the stable legal basis of this practice. The legal effect of the (I) equity freeze only extends to the autonomy of shareholders to transfer equity and the right to dividend income. According to the Civil Code, equity is one of the six property rights enjoyed by civil subjects, alongside property rights, claims, intellectual property rights and inheritance rights. Equity can be divided into self-interest and co-interest according to the purpose and manner of exercise. Self-interest rights refer to the rights enjoyed by shareholders based on their own interests, which can be exercised separately, including the right to return on assets, the right to request the distribution of surplus property, the right to transfer shares, the right to subscribe for new shares, etc. The right of common interest refers to the rights enjoyed by shareholders based on the interests of all shareholders or the company, including the right to vote at the shareholders' meeting, the right to convene the shareholders' meeting, the right to propose proposals, the right to question, the right to inquire about the articles of association and the books of account, and the right to request revocation by resolution of the shareholders' meeting. The Supreme People's Court<关于人民法院执行工作若干问题的规定>（试行）》第38条规定：“对被执行人在有限责任公司、其他法人企业中的投资权益或股权，人民法院可以采取冻结措施。冻结投资权益或股权的，应当通知有关企业不得办理被冻结投资权益或股权的转移手续，不得向被执行人支付股息或红利。被冻结的投资权益或股权，被执行人不得自行转让。”根据《最高人民法院、国家工商总局<关于加强信息合作规范执行与协助执行的通知>(October 10, 2014) Article 12 stipulates that if the shares are frozen, the shareholders shall not transfer them without authorization, and shall not set up pledges or other rights burdens. According to the aforementioned provisions, the consequence of the equity freeze is that the executed person may not transfer the frozen investment interest or equity on his own, and the enterprise may not go through the procedures for the transfer of the frozen investment interest or equity, and may not pay dividends or dividends to the executed person. The legal effect of the equity freeze only extends to the autonomy of the shareholders to transfer their shares and the right to dividend income, limiting the shareholders' right to self-interest, not the right to co-interest. The freezing of (II) shares does not affect the voting, compulsory adjudication and legal effect of the investor's equity adjustment plan. There is a fundamental difference between the transfer of equity to the reorganization investor or creditor in the adjustment plan of the investor's equity in the reorganization plan and the transfer of equity. The transfer of equity is the act of a shareholder transferring his equity to another person by means of transactions, gifts and other laws or the articles of association of the company. On the other hand, the adjustment of the rights and interests of the investors in the reorganization plan is based on the principle that creditor's rights take precedence over equity, and the rights and interests of the investors are reduced in the case of enterprise bankruptcy, so as to introduce the way of restructuring investors or debt-to-equity swap and reorganization. The acquisition of equity by investors is not based on the self-transfer of shareholders, and the investment price is not paid to individual shareholders. The shareholding freeze restriction is the shareholder's right to self-transfer and dividend of equity and investment interests. The reorganization plan investor's equity adjustment plan is not a shareholder's own transfer of equity or investment interests, nor does it involve dividends, does not belong to the restriction of equity freeze, and does not affect the voting rights of shareholders on the plan. According to Article 87 of the Enterprise Bankruptcy Law, even if the investor group does not vote to pass the capital contribution rights and interests adjustment plan, as long as the draft reorganization plan adjusts the investor's rights and interests in a fair and just manner, the court can force the decision. The freezing of equity or pledge is not an exception, and the freezing of equity does not affect the court's ruling and legal effect. (III) equity has undergone a change in the subject of rights prior to the registration of the change. According to the third paragraph of Article 32 of the Company Law, the effect of equity registration of a limited liability company is only against third parties. The industrial and commercial department is not the shareholder's equity confirmation authority, nor is it the property right registration authority, the industrial and commercial department of the limited liability company's capital contribution registration, the essential role is information publicity. Although no change registration has been made, the reorganization investor or creditor may acquire equity in accordance with the provisions of the investor's equity adjustment plan confirmed by the court ruling. (IV) the reorganization plan is an effective legal document, the people's court may complete the formalities for the transfer of property rights certificates by way of co-enforcement. The reorganization plan approved by the court has the nature of an effective legal instrument, and the reorganization plan stipulates that the change of equity to the name of the reorganization investor or creditor shall be implemented. According to Article 4 of the Enterprise Bankruptcy Law: "If the proceedings for the trial of bankruptcy cases are not provided for in this Law, the relevant provisions of the Civil Procedure Law shall apply." Article 251 of the "Civil Procedure Law" stipulates: "In the course of execution, if it is necessary to go through the procedures for the transfer of relevant property rights certificates, the people's court may issue a notice of assistance in execution to the relevant unit, and the relevant unit must go through it." In the course of the implementation of the reorganization plan, it is necessary to go through the formalities for the transfer of shares, but due to the freezing of shares, the shareholders are unable to do so on their own, so the people's court has the right to issue a notice of assistance in execution to the registration authority in accordance with the above provisions. The (V) investor's equity adjustment plan is binding on the debtor and all creditors. Article 92, paragraph 1, of the Enterprise Bankruptcy Law stipulates: "A reorganization plan approved by the People's Court shall be binding on the debtor and all creditors." If the executor applying for the freezing of equity is also a creditor of the debtor, the provisions of the investor's equity adjustment plan and the conditions for the settlement of claims shall be binding on it, and in the case of non-cooperation in the lifting of the equity freeze, the court shall rule on the basis of the reorganization plan to force the resolution of the equity freeze. The adjustment of the rights and interests of the (VI) investor and the change of the equity shall not harm the legitimate rights and interests of the applicant. In the case of the debtor's insolvency, there is no surplus to be distributed to the interests of shareholders, the adjustment of the rights and interests of the investor will not actually harm the rights and interests of the applicant for execution, and the continued freezing of the original investor's equity has no practical significance for the applicant for execution. If the enterprise goes bankrupt and liquidates due to the inability to transfer the shares, the shareholders' shares will no longer exist and the creditors will suffer greater losses. 4. epilogue As a civil preservation measure, the legal effect of the equity freeze is only to prohibit the right of shareholders to transfer their equity and investment interests and the right to dividends. The adjustment of the investor's rights and interests of the reorganization plan is the reduction and transfer of the investor's rights and interests based on the debtor's assets and liabilities in the bankruptcy reorganization proceedings of the enterprise, which is fundamentally different from the transfer of equity, and is not within the scope of the equity freeze measures. The reorganization plan is an effective legal instrument, and the adjustment of the rights and interests of the contributors determined by it has the effect of enforcement. In the case that the debtor and shareholders are unable to implement the investor's rights and interests adjustment plan on their own due to the freezing of equity, the people's court shall complete the registration of frozen equity changes by issuing a notice of assistance in execution in accordance with the provisions of the Enterprise Bankruptcy Law and the Civil Procedure Law. The practice has a sufficient legal basis and should be supported and widely applied.</关于加强信息合作规范执行与协助执行的通知></关于人民法院执行工作若干问题的规定>
2021-11-23
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2021-11
In order to effectively improve the housing conditions of people with household registration difficulties in cities and towns, and solve the housing difficulties of new citizens, young people and other groups, we are gradually accelerating the improvement of the housing security system with public rental housing, affordable rental housing and shared property housing as the main body. Concept of 1. indemnificatory rental housing On June 24, 2021, the General Office of the State Council issued the "Opinions of the General Office of the State Council on Accelerating the Development of Affordable Rental Housing" (Guo Ban Fa [2021] No. 22), which explained the concept of affordable rental housing from the legal and policy levels. Affordable rental housing refers to the housing that the government organizes construction or raises through other means to rent out to eligible urban families or individuals with housing difficulties. Affordable rental housing mainly solves the housing difficulties of eligible new citizens, young people and other groups. It is mainly small households with a construction area of no more than 70 square meters, and the rent is lower than the rent of rental housing in the same area and quality market. 2., the State Council and Shandong Province have successively issued documents allowing collective operating construction land to be used for the development of affordable rental housing. On June 24, 2021, the General Office of the State Council issued the "Opinions of the General Office of the State Council on Accelerating the Development of Affordable Rental Housing" (2021 No. 22), which proposed that "large cities with net population inflow and cities determined by the provincial people's government, on the basis of respecting the collective wishes of farmers and with the consent of the urban people's government, can explore the use of collective operating construction land to build affordable rental housing; support should be given to the use of collective operating construction land in urban areas, close to industrial parks or areas with convenient transportation to build indemnificatory rental housing; rural collective economic organizations can build and operate indemnificatory rental housing through self-construction, joint venture, shareholding, etc.; the right to use collective operating construction land for the construction of indemnificatory rental housing can be mortgaged." On November 16, 2021, the General Office of the People's Government of Shandong Province issued the "Implementation Opinions of the General Office of the People's Government of Shandong Province on Accelerating the Development of Affordable Rental Housing" (Lu Zheng Ban Fa [2021] No. 17), which proposed that "Jinan, Qingdao and other large cities with a net inflow of population should focus on new citizens and young people, give priority to physical security and pay equal attention to rental subsidies, make use of resources such as collective operating construction land, supporting land for industrial parks, idle land owned by enterprises and institutions, idle houses in non-residential stock, and newly supplied state-owned construction land, actively support specialized large-scale housing leasing enterprises, and multi-point layout to drive the whole area. Vigorously develop affordable rental housing, and strive to achieve a balance between work and housing." Relevant regulations of Jinan City, 3. On October 13, 2021, the General Office of the Jinan Municipal People's Government issued the ''Jinan City Collective Construction Land Management Measures (Trial) ''(JZBF [2021] No. 21), although JZBF [2021] No. 21 Article 5 stipulates that collective construction land can be used for major (key) projects such as affordable public rental housing determined by the people's government at or above the county level, however, Article 12 of Chapter III" Collective operating construction land entering the market "stipulates that" collective operating construction land refers to collective construction land that is determined by land and space planning (overall land use planning, urban and rural planning) as industrial storage, commerce, tourism, entertainment and other operational uses, and registered for land ownership in accordance with the law." Document No. 21 of the Economic Administration Office [2021] does not directly stipulate in the chapter "Collective operating construction land entering the market" that collective operating construction land can be used to develop affordable rental housing. According to Article 8 of the document, it is intended to guarantee Public rental housing is included in the approval of collective construction land use rights. However, Lu Zhengban Fa [2021] No. 17 has made it clear that Jinan should use collective operating construction land to develop affordable rental housing. Since the national, provincial, and municipal regulations are not completely consistent, in practice, how should we master the use of collective operating construction land in the market? Our lawyers believe that from the time of issuance, the State Office issued document No. 22 [2021] in June this year, in November of the same year, the Shandong Provincial Government Office of the State Office issued document No. 22 [2021] detailed, and issued Lu Zheng Office issued document No. 17 [2021], the above documents are highly consistent in content, and actively explore the use of collective business construction land to build affordable rental housing, use resources such as collective operating construction land to actively support specialized large-scale housing rental enterprises, and vigorously develop affordable rental housing. Although Jinan's regulations on the use of collective construction land in the market are slightly different from those of the State Council and Shandong Province, the use of collective construction land to develop affordable rental housing is in the same line and complementary. Under the premise of meeting the requirements of document No. 22 issued by the State Office of the people's Government of China and document No. 17 issued by the Lu Zheng Office of the people's Government of Jinan City, collective operating construction land can be used to build indemnificatory rental housing, and relevant rural collective economic organizations can build and operate indemnificatory rental housing through self-construction, joint venture, shareholding and other means.
2021-11-23
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2021-11
Source: Ministry of Housing and Urban-Rural Development of the People's Republic of China On November 19, 2021, the Standard and Quota Department of the Ministry of Housing and Urban-Rural Development issued the "Construction Project Volume List Pricing Standard" (draft for comments), which revised the "Construction Project Volume List Pricing Standard" (GB 50500-2013). The housing and urban-rural construction departments of all provinces and autonomous regions, the housing and urban-rural construction (management) committees of municipalities directly under the Central Government, the Housing and Urban-Rural Construction Bureau of Xinjiang Production and Construction Corps, the construction project cost management agencies of relevant departments of the State Council, and all relevant units: In order to improve the market-oriented formation mechanism of project cost and further unify the project pricing rules, we have revised the "Construction Project Volume List Pricing Standard" (GB 50500-2013) to form the "Construction Project Volume List Pricing Standard" (draft for comments), which is now sent to you for comments. Please feedback your written comments to our company before December 15. Contact person and fax: Cong Mingxue, 010-58934733 Contact E-mail: chengm@mohurd.gov.cn Contact address: Standard Quota Department of Ministry of Housing and Urban-Rural Development, No. 9 Sanlihe Road, Haidian District, Beijing (please indicate the words "Construction Project Quantity List Pricing Standard for Comments"), zip code: 100835 Annex: Valuation Standard for Bill of Quantities of Construction Projects (draft for comments) Department of Standards and Quotas, Ministry of Housing and Urban-Rural Development 17 November 2021 (This active public)
2021-11-21
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2021-11
Introduction Malicious evasion of financial debts, disrupting the normal financial order, destroying the social credit system, aggravating the operational risk of financial assets and directly threatening the healthy operation of the financial industry is a malignant tumor in the construction of China's financial ecological environment and has great social harm. In recent years, affected by the complex economic situation at home and abroad, the liquidity risk of some enterprises has been exposed and spread along the guarantee circle, and the trend of evading financial debts has risen, which has become one of the prominent problems affecting economic development and social stability. According to data disclosed by the CBI, the non-performing rate of credit funds has remained high for years, and the non-performing situation of national banks in 2019: the non-performing balance of the six major banks was 895.9 billion yuan, of which: 40.75 percent in the secondary category, 42.49 percent in the suspicious category and 16.76 percent in the loss category. The non-performing balance of 12 joint-stock banks was 480.5 billion yuan, of which: 43.64 per cent in the sub-category, 34.47 per cent in the doubtful category and 21.89 per cent in the loss category. Large banks have a non-performing loan ratio of 1.38 per cent and shares of 1.64 per cent. There is no lack of malicious evasion of financial debt. In view of the situation of malicious evasion of financial debts (bank credit) by borrowers, this paper discusses how to realize credit claims and recover credit debts for banks and other financial institutions through criminal means. Text Evasion of financial debts refers to the deliberate evasion, suspension and destruction of banking claims by enterprises, institutions, other organizations and individuals that lend to banking institutions. Malice means that these units and individuals subjectively know that they cannot repay the loan on time, still take false means to obtain the loan, or have the ability to repay the loan, but deliberately do not repay the loan for some motive. Malicious evasion of financial debt undermines the overall efficiency of loan use, and the ownership of credit assets and the safety of credit assets of financial institutions are threatened, which has serious social harm. Non-repayment of loans to financial institutions is not just a civil matter; in many cases, criminal offences are involved. Common charges First of all, let's take a look at the common crimes of malicious evasion of financial debt in the financial sector, especially in the bank credit business: Article 193 of the Criminal Law on the crime of loan fraud, in one of the following circumstances, for the purpose of illegal possession, defrauding loans from banks or other financial institutions, the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and a fine of not less than 20,000 yuan but not more than 200,000 yuan; if the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not less than 10 years and a fine of 50,000 yuan; if the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and a fine of not less than 50,000 yuan but not more than 500,000 yuan or confiscation of property: (I) fabricating false reasons for introducing funds or projects; (II) use of false economic contracts; (III) use of false supporting documents; The (IV) uses a false title certificate as a guarantee or repeatedly guarantees the value of the collateral; (V) defrauding loans by other means. The crime of obtaining loans by fraud is a new crime in the (VI) to the Amendment to the Criminal Law, and it is also a common crime in handling cases of malicious evasion of financial debts. One of the multiple crimes stipulated in Article 175 of the Criminal Law, "Whoever obtains loans, bill acceptances, letters of credit, guarantees, etc. from banks or other financial institutions by deception, causing heavy losses to banks or other financial institutions or other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or separately be fined; causing particularly heavy losses to banks or other financial institutions or having other particularly serious circumstances, shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and shall also be sentenced to a fine." Article 27 of the (II) on the Standards for Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (hereinafter referred to as the "Regulations") issued by the Ministry of Public Security in May 2010 stipulates that where the amount of loans obtained by deception is more than 1 million yuan, or the amount of direct economic losses caused to banks or other financial institutions by deception is more than 200,000 yuan, or although it does not meet the above-mentioned amount standard, however, if a loan is obtained by deception for many times, and other circumstances that cause heavy losses to financial institutions or have other serious circumstances, a case shall be filed for prosecution. The above can be seen, the crime of loan fraud than the crime of loan fraud punishment to be greater, but in judicial practice, the suspected crime of loan fraud case investigation than the suspected crime of loan fraud cases to be more, the reason is that the crime of loan fraud "illegal possession of the purpose" in judicial practice to identify more difficult. The investigative capacity of lawyers and banks makes it difficult to directly prove that the debtor has the purpose of illegal possession, and lawyers or bank staff can find the lender to understand the situation, but do not have the right to interrogate. For example, the purpose of the lender's loan is to purchase equipment, and as a result, after the money is put down, it uses most of the money to build the plant, and part of the money is returned to the previous credit funds, such as this kind of situation is difficult to identify as illegal possession. Because credit payments are still used in actual business, it is a commercial act. Then the debtor's use of fraudulent credit funds to purchase luxury cars and houses can be identified as illegal possession, but it is difficult for us to fix the evidence and can only provide clues to the public security department. The objective elements of the crime of obtaining loans by fraud. Next, according to judicial practice, the objective elements of the crime of obtaining loans are detailed: Direct economic loss caused by 1. Deceptive means to obtain loans of more than 1 million yuan or direct economic losses of more than 200,000 yuan. Whether it is illegally obtaining a loan of more than one million yuan or causing direct economic losses of more than 200,000 yuan to financial institutions, in judicial practice, the three departments of the public security organs and the law only determine that the principal, interest or other liquidated damages cannot be counted. In judicial practice, it is rare to be prosecuted for obtaining more than one million loans by deception or so-called multiple fraudulent loans without causing losses to the bank, and there is no corresponding judicial interpretation. 2. obtain loans by deception This crime is different from the crime of loan fraud and is not specifically listed. Therefore, in judicial practice, the identification of criminal fraud and civil fraud is controversial. Except for the determination of the prosecution standard of the amount of crime, the understanding of each city is not uniform when handling cases. The same case may be identified as obtaining loans by deception in a certain place, but it is identified as ordinary civil fraud by a local case handling agency, disputes can be resolved through civil means. Situations like this where the identification standards are not uniform are often encountered when handling financial cases. The following summarizes the basic objective requirements for filing a case based on multiple cases of fraudulent loan crimes. 1. False financial statements, audit reports. Annual and quarterly written reports on the company's financial position and operations issued by an accounting firm or other financial audit firm. Whether the statements and reports submitted to the bank as the basis for the loan are consistent with the documents submitted to the tax department or retained in the accounting firm or audit company is a key part of the lawyer's review. The financial statements submitted by a company to the tax department are losses for the current year, and the financial statements submitted to the bank for the same period are a profit of more than 2000 million yuan, such statements are sufficient to identify as loan information fraud. Compared with the financial data, the difference is about 30%, which is not considered as false material. For example, the financial data submitted to the tax department made a profit of 1 million yuan in the current year and the bank data submitted was 1.3 million yuan. Such statements are not considered false and belong to reasonable financial data fluctuation. There are two common ways to issue false reports, one is to directly falsify, falsify the seal of a finance company or accounting firm, and directly produce false audit reports and other credit data. In addition, the lender conspires with the financial company. The financial company issues different reports. The one that is kept on file or submitted to the tax department is true, and the one that is provided to the bank is false. The financial company keeps a true report to avoid its own legal risks. When the relevant department checks, it will shirk the false report without knowing that it was forged by the lender itself, thus exempting it from liability. However, in judicial practice, most financial companies were held accountable for issuing false financial reports and were not spared. 2. The collateral and guarantee provided by the loan subject are falsified. (1) Fictitious collateral, material of the value of the pledge. The real market evaluation value of a shop along the street is more than 1200 million yuan, and the evaluation report submitted to the bank is more than 3000 million yuan. This assessment report is beyond the scope of market fluctuations and is fraudulent. (2) Concealing the fact that the collateral is mortgaged multiple times. (3) Fictitious guarantor, the guarantor uses false identity information and business information. The guarantor uses false identity information, which is easy to identify during the second verification, such as name, age, real occupation, etc. In the specific case practice, the main focus is on the real degree of information of the guarantee enterprise, the starting point is in the bank flow, registered capital, the actual business situation. In the process of small and medium-sized enterprise loans, a large part of the guarantee enterprises are shell companies, there is no actual operation, for such a situation must be verified and formed written evidence. 3. The fictitious use of the loan or the inconsistency of the credit funds with the actual use. (1) Fictitious sales contracts, supply and marketing contracts. Through investigation and evidence collection, it is initially understood that the loan subject has no real trading behavior. For example, a company's loan is used to purchase a large program-controlled exchange, through the investigation of the supply enterprise, it is found that the supply enterprise and the loan company are affiliated enterprises of the same actual controller, and the sales contract signed is a false contract, and there is no real transaction behavior. (2) The credit funds do not match their actual use. Transfer bank flow, pay attention to the direction of funds after the funds are decentralized, and focus on the flow from company accounts to individual accounts. For example, after a bank loan is made, the debtor will transfer the funds to several different corporate accounts, and then through the corporate account to the individual account, such a flow of funds is more likely to form direct evidence that the credit funds do not match the actual use. As to whether it is ultimately the job of the public security organs to find out where the money goes, lawyers can only provide clues, and the flow of credit funds is also one of the objective elements to distinguish between loan fraud and loan fraud. It should be noted that the above elements need to be available at the same time. For example, collateral and guarantees must reach an objective level of falsehood and forgery, and if the collateral is sufficient or the guarantee is true, even if the financial statements provided are falsified, in judicial practice the procuratorate will require financial institutions to exhaust civil means to realize their claims and will not initiate public prosecution. The public security organs find that there is a real mortgage guarantee and usually will not be investigated as a criminal case. Evidence clues to be collected for criminal charges From 2017 to 2019, Shandong Province carried out the "Special Governance to Combat Malicious Evasion of Financial Debt", which loosened the objective elements of the above fraudulent loan acquisition. There are cases that show that a lender who has a full mortgage guarantee and uses false loan information to defraud a loan, causing heavy losses to the bank, is criminally punished for the crime of defrauding a loan. However, after 2020, it is difficult to unify the understanding of various places, and the lack of unity of understanding of the elements of crime is one of the sticking points that commercial crime is usually difficult to file. This requires lawyers to make great efforts in preparing evidence materials, turn clues into professional evidence, and help public security organs to collect criminal evidence. The reported materials should be detailed and complete to form an evidence chain. When the public security organs file a case for review, the evidence materials are clear and clear, which is easy to file a case for investigation. In judicial practice, in order to severely punish malicious evasion of financial debts, it is necessary to assist the public security organs in actively carrying out evidence collection and fixation work, and the following clues of evidence need to be collected: First, the details of the loan subject. Company registration information, legal person identity certificate, husband and wife identity information, important is the actual controller information. This kind of information is kept in detailed files when handling bank loans and needs to be copied into a book. Among them, the information of the actual controller is the most important, and many company legal representatives are not the same person as the actual controller. The real lender and administrator are not natural persons reflected in the business registration certificate. The handling of criminal cases is different from civil cases. The loan contract in civil cases pays attention to relativity. Whoever signs the contract will be responsible. If additional contract parties need to submit corresponding evidence. In criminal cases, the information of the actual controller provided by the lawyer as a clue to the case needs to be identified in detail by the judicial department according to its functions and powers, so the actual controller's retreat behind the scenes may avoid civil legal risks, but it is not feasible on the road of criminal investigation. The public security organ will investigate the relationship between the industrial and commercial registration legal person and the actual controller, and take the actual controller as the object of investigation. Therefore, lawyers should fully communicate with bank credit managers in the process of handling cases. In general, credit managers have a better understanding of real lenders. The second is the basic information of the loan. Loan contracts, sales contracts, guarantee contracts, bank flow, financial statements, mortgage warrants, various appraisal reports, bank due diligence information, etc. Financial Statements. In the event of a bad bank credit, the lawyer should first remind the bank to check whether the tax department is consistent with the financial statements provided to the bank credit information, even if the discrepancy is within a reasonable range. This is the most critical link. Sales or supply and marketing contracts. The key to the verification of these two materials is the visit and investigation of lawyers or bank staff. The clearer the investigation of the details of the false contract, the more detailed the evidence clues provided to the public security department, and the smoother the case. One is whether there is a real supply company, the other is whether there is a real goods transaction, and the third is who is the actual controller. The most critical breakthrough point is the bank flow of the supply company. The real company's operating capital flow is very complicated, while the false company's operating capital flow is very simple. Only the capital flow information for loans is easy to identify. Assessment report. The verification of the appraisal report needs to be combined with collateral (in the case of collateral), such as real estate, which requires information on the property, market prices, and field visits to surrounding properties to clarify the actual price. Compare the assessment report to assess its true extent. In a large number of loan materials to focus on the investigation of the above three, the lawyer to prepare all the evidence materials, write a catalogue of evidence, collated into a systematic case file. The next job is to draft the report materials in the name of the bank. The first is the reporting material, and the second is the analysis report or legal opinion. Reporting materials. The reporting materials do not have to be cumbersome and complicated, with the actual loss of the bank as the result, the lender will use what false means to defraud the bank loan process to the time axis written statement. Strive for clarity and clarity so that the handling department at a glance, understand the full picture of the case. Case analysis report, legal opinion. The objective facts of the case investigated will be combined with the constituent elements of the specific charges in the criminal law to analyze the legal relationship and form a systematic written opinion. From the perspective of judicial practice, the lawyer's report is a legal idea provided to the case handling department. Through the written report, the public security organ can understand the legal picture of the case. Concluding remarks In the end, the lawyer with professional criminal legal literacy is good at in the general civil loan contract dispute case, to help banks and other financial institutions to identify the malicious evasion of financial debt lenders, through the public security organs to severely fight.
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Viewpoint | Research on selective law enforcement and its governance
Text In the early stage of economic development, due to the imperfect system of various systems and frequent environmental changes, the consequences of economic reform were extremely unpredictable. In order to deal with the problems in the process of law enforcement, the state adopted selective law enforcement, that is, the law enforcement subjects carried out different law enforcement according to different circumstances and objects, which flexibly made up for the disadvantages of rigid legal constraints. With the continuous improvement of the market economic system and the continuous improvement of the rule of law construction system, the unpredictability of the consequences of the reform has declined. However, with the deepening of the reform, the disadvantages of selective law enforcement continue to highlight, such as excessive discretionary space, abuse of public power, illegal law enforcement and so on. Zhu Zhengfu, member of the National Committee of the Chinese people's Political Consultative Conference and vice president of the all China Lawyers Association, said that if selective and profit-seeking law enforcement is not curbed, entrepreneurs are very vulnerable to the abuse of judicial power. Therefore, measures should be taken to prevent unreasonable selective law enforcement. Analysis of Advantages and Disadvantages of 1. Selective Law Enforcement 1. The positive impact of selective law enforcement: it is conducive to saving judicial costs. The market environment is extremely unstable, and legal adjustments alone are not enough to solve problems flexibly. The optimal law enforcement theory of economics verifies the advantages of selective law enforcement, that is, the law enforcement behavior with excessive law enforcement cost should be solved in a random way, so that the punishment intensity is inversely proportional to the random probability. In the process of law enforcement, our country meets the practical needs through the change of law enforcement behavior and law enforcement intensity. On the one hand, when dealing with emergencies, law enforcement agencies achieve the best law enforcement effect by adopting law enforcement methods that adapt to emergency situations; on the other hand, the lag of laws is often not enough to solve practical problems. When laws, regulations, and rules are not clearly defined, law enforcement agencies can exercise discretion and adopt appropriate solutions and staffing to solve them in a timely and effective manner, to make up for the limited legal rules of the rapid development of the society can not make changes in time; to solve the sudden problems in time. The occurrence of sudden social problems has the characteristics of great influence, rapid spread and urgency, which requires law enforcement agencies not to blindly follow the articles of association to solve them step by step, but should take different intensity of law enforcement means in combination with specific situations. For example, in 2004, three types of cases of gangs, violence, and theft occurred frequently. For this reason, severe crackdowns were taken against these three types of serious crimes; in 2007, severe crackdowns were also taken against the frequent occurrence of bicycle theft; In 2010, there were more criminal cases, focusing on individual extreme violent crimes, gun-related crimes, and "pornography, gambling, and drugs" crimes. Therefore, in view of the criminal situations in different historical periods, the state has adopted a severe crackdown policy to deal with prominent harmful behaviors. 2. Negative impact of selective enforcement: impaired legal authority. Locke pointed out in "On Government" that all the powers of the government, since they are only for the happiness of society, should not be arbitrary and happy, but should be exercised according to established and published laws. Selective law enforcement is not arbitrary law enforcement, it still has to exercise its powers within the framework of the law. However, with the expansion of law enforcement power, "cross-border implementation of authority" has become the norm. Law enforcement officers simply rely on subjective likes and dislikes to deliberately distinguish law enforcement, and the phenomenon of "violating the rule of law for the sake of the rule of law" appears. Law is normative and deterministic. In the field of administrative law, law enforcement agencies first follow the principle of legality and pursue the purpose of "law cannot be authorized. If there is universal selective law enforcement, the authority of the law will be damaged, citizens' belief in the rule of law will be missing, which is not conducive to the construction of a country ruled by law; the credibility of law enforcement agencies will be damaged. With the increase of unreasonable selective law enforcement, power rent-seeking behavior appears on a large scale. Those with public power use power as a bargaining chip to seek their own economic interests, or use power as capital to participate in commodity exchange and market competition for monetary and material benefits. This kind of behavior seriously hinders the construction of the rule of law in the country, leads to the corruption of power, the contradiction between social equality and the distribution of interests. Analysis of the Current Situation of Selective Law Enforcement in 2. 1. Administrative discretion is too large. The primary manifestation of selective law enforcement is the excessive expansion of discretion. Because our country's law does not clearly stipulate the limits of the administrative agency's exercise of discretion, it leads to different judgments in the same case and the current situation of unfair law enforcement. In 2006, in the case of administrative punishment for industry and commerce in Wuxi County, Wuxi County Administration for Industry and Commerce issued a fine of 10000 yuan, 30000 yuan and 80000 yuan to the punished persons Wang Mou, Tan Mou and Liao Mou with the administrative punishment decision No. 145 of (2003) Xi Industry and Commerce Penalty. Afterwards, Liao filed an administrative lawsuit with the Wuxi County People's Court on the grounds of the same act and different penalties. The case caused public dissatisfaction with the opaque law enforcement process and unfair law enforcement results of law enforcement agencies. Although according to the law, the amount of punishment given to Liao by law enforcement agencies is within the scope of authority, but the result of different judgments in the same case reflects the discretion of administrative agencies. Excessive power provides rent-seeking space for law enforcement and damages the public's trust in law enforcement results. 2. Administrative law enforcement supervision is not in place. Selective law enforcement reflects not only law enforcement issues, but also legislative issues. But at present, whether it is the court, the procuratorate, or the higher authorities, the supervision of law enforcement is still not in place. For example, with the emergence of the current situation of "replacing punishment with punishment", administrative organs are often driven by economic interests to avoid criminal punishment by being in administrative punishment. On the one hand, it is easy to cause criminals to escape legal sanctions, on the other hand, it makes the law enforcement environment tend to be bad, reflecting the procuratorial organs' ineffective supervision of administrative law enforcement. Therefore, the procuratorial organs should carry out special actions to prevent "punishment instead of punishment. Not only the procuratorate, but in administrative litigation cases, the court should also stop the inaction and chaos of the administrative agency on the basis of ascertaining the facts. Analysis of Typical Cases of 3. Selective Law Enforcement 1. Haikou "most beautiful illegal construction" case. In June 2016, Hainan Province issued the "Three-Year Action Plan for Rectifying Illegal Buildings in Hainan Province" to demolish illegal buildings. However, after being reported by the masses, a mansion in Xiuying District of Hainan Province was demolished. According to the investigation, the illegal mansion was designated as an illegal building as early as July 2013, and the authorities also issued a demolition notice, but it was not implemented. In 2015, a reminder was also issued to inform the demolition as soon as possible, but the illegal mansion still exists. Local villagers reported that the residents of the mansion were national civil servants, and the family ran the quarry, with wealth and strength, which led to the protection of law enforcement officers with their officials, collusion between officials and businessmen, and illegal buildings have not been demolished. Illegal construction has always been a typical case of selective law enforcement by law enforcement personnel, usually because of the strong background of the violator, the law enforcement personnel selectively enforce the law and evade legal responsibility, and finally the illegal construction becomes the "landmark and most beautiful illegal construction". 2. Japanese Keiichiro Kheyuan lost his car. In February 2012, when Heyuan Keiichiro was playing in Wuhan, his bicycle worth 10,000 yuan was lost. The Wuhan police actively called in the police force and solved the case in three days, which aroused many people's praise. Subsequently, many car owners have reported to the police, asking to find the vehicle, but the Wuhan police ignored. In this case, for similar Qing Festival, they were treated differently because of different objects, which reflected the obvious selective law enforcement characteristics of law enforcement officers. 4. the Governance Measures of Improving Selective Law Enforcement 1. Improve legislation and limit the boundaries of administrative power. The essence of selective law enforcement lies in the blurring of the boundaries of discretion and the strong subjectivity of law enforcement behavior. Therefore, only by limiting the boundaries of discretion can we fundamentally curb unreasonable selective law enforcement. The scope of administrative law is wide, but the legal provisions are not clear. Therefore, we should improve the administrative legislation and define the conditions for the exercise of administrative discretion. On October 23, 2014, the Central Committee of the Communist Party of China pointed out in the decision on several major issues of comprehensively promoting the rule of law, establishing and improving the benchmark system of administrative discretion, refining and quantifying the standards of administrative discretion, and standardizing the scope, type and range of discretion. Therefore, administrative rules should be refined so that law enforcement can be traced. 2. Strengthen the supervision of administrative power. As mentioned above, selective law enforcement has the disadvantages of lax supervision, so we should strengthen its supervision. Specifically, it includes the internal supervision of administrative organs, judicial supervision and social supervision. If you are not satisfied with a specific administrative act, you can file a reconsideration with the higher authority, which shows that the higher authority has a natural supervisory function over the lower authority. Lower-level agencies should regularly submit statements on their work tasks, which should be reviewed by higher-level agencies to reduce the exercise of discretionary power; courts and procuratorates should supervise administrative actions and supervise administrative actions and law enforcement personnel; at the same time, strengthen public opinion supervision. The disclosure of most of the above-mentioned cases is a controversy caused by the dissatisfaction of the public. Therefore, the public and the media should supervise the law enforcement behavior. Although selective law enforcement has played a positive regulatory role in the period of economic transition, with the continuous improvement of the market economic system and the strengthening of the awareness of the rule of law, selective law enforcement has gradually emerged with the disadvantages of excessive discretion and private public power. Selective law enforcement such as "strict crackdown" and "law enforcement movement" that exert positive effects should be implemented. However, my country's current selective law enforcement has disadvantages such as excessive administrative discretion and inadequate administrative law enforcement supervision. It can be seen that selective law enforcement seriously hinders the construction of the rule of law. To this end, we should control selective violations, improve legislation, limit the boundaries of administrative power, strengthen the supervision of administrative power, and improve the quality of law enforcement personnel. Only in this way can we ensure the legitimacy and rationality of administrative actions.
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2021-11
Viewpoint | Analysis of the principle of trust protection in administrative law
Text The principle of trust protection embodies the goal of building a modern rule of law and maintaining the trust of citizens, and by analyzing the meaning of the principle of trust protection, the origin of theory and practice, the applicable conditions, we can find that it has important value in the administrative rule of law. However, at present, there are still some problems in the principle of trust protection, such as the concept of compensation and compensation is not clear, and the public interest and personal interest conflict. Therefore, China should continue to improve the principle of trust protection, so that the theory and norms of coordination. The meaning and requirements of the principle of trust protection. 1. The basic meaning of the principle of trust protection. That is, the government's actions or commitments to itself should be trustworthy and should not be changed at will. The principle of trust protection first appeared in China's administrative law in 1999 when Article 58 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the the People's Republic of China Administrative Procedure Law stipulated that the court made a judgment confirming that the administrative act was illegal and ordered the administrative organ to take corresponding remedial measures. The "Administrative Licensing Law" introduced the principle of trust protection for the first time. Article 8 stipulates that administrative licenses obtained by citizens, legal persons or other organizations in accordance with the law are protected by law, and administrative agencies shall not change the effective administrative licenses without authorization. If the laws, regulations and rules on which the administrative license is based are amended or abolished, or if the objective circumstances on which the administrative license is granted change significantly, the administrative organ may, in order to meet the needs of public interests, change or withdraw the administrative license that has been in force according to law. If property losses are caused to citizens, legal persons or other organizations as a result, the administrative organs shall compensate them in accordance with the law. In 2004, the State Council promulgated the "Implementation Outline for Comprehensively Promoting the Rule of Law", which reiterated that all administrative decisions must apply the principle of trust protection from the perspective of administrative law enforcement. 2. The requirements of the principle of trust protection. (1) Once an administrative act is made, it may not be revoked, annulled or changed at will without statutory reasons and through statutory procedures. (2) After the administrative organ has made an administrative act of granting benefits to the administrative counterpart, even if an illegal situation is found afterwards, as long as the illegal situation is not caused by the fault of the counterpart, the administrative organ shall not easily revoke or change it, unless such illegal administrative act will seriously damage the public interests of the state and society. (3) After the administrative act is made, if the laws, regulations, and rules on which the administrative act was made are modified or abolished afterwards, or the objective circumstances on which the administrative act was made have changed significantly, for the needs of the public interest. An administrative organ may withdraw, annul or change an administrative act it has already taken. (4) If the administrative organ cancels or changes its illegal administrative act, if this illegal situation is not caused by the fault of the relative, it shall compensate the relative for the losses suffered as a result. If an administrative organ withdraws, repeals or changes an administrative act legally made by it due to the need of public interest, if such withdrawal, repeal or change results in the loss of the relative, it shall also compensate the relative for the loss. The above four requirements reflect the necessary limitations of the principle of trust protection: 1. The abstract administrative acts of administrative organs do not have retroactive effect in principle. 2. The revocation of specific administrative acts shall be restricted. 3. The annulment of specific administrative acts shall be restricted. It can be seen that the application of the principle of trust protection reflects the constraints on administrative power and plays a key role in safeguarding the legitimate rights of administrative counterparts. The theoretical origin of the principle of trust protection. 1. The principle of legal stability. In EC law, the principle of trust protection originated from the principle of legal stability. The object of trust protection is the private trust in the continued state of the old law and the prevention of retroactive destruction of private behavior. According to the German legal philosopher H.Coing, the principle of legal stability includes two meanings:(1) the clarity of legal rights and obligations;(2) the stability of legal relations and legal states. Many German scholars also believe that the principle of legal stability has the dual significance of "legal peace" and "trust protection. In 1956, the High Administrative Court of West Berlin of the Federal Republic of Germany gave a living allowance to a civil servant's widow's judgment, which fully reflected the measurement of the public interest protected by administration according to law and the protection of private trust in the legality of administrative acts when there was a conflict between the principle of administration according to law and the principle of legal stability. In EC administrative law, the principle of legal stability played a pivotal role before the principle of reliance protection emerged as an independent administrative law in 1970. However, there are differences in focus between the two, with the principle of trust protection focusing on private subjective trust and the principle of legal stability focusing more on the stability and peace of objective law. 2. The principle of good faith. The principle of good faith is closely related to the principle of trust protection. Article 8 of the administrative license law stipulates that administrative organs shall not change the effective administrative license without authorization, which also reflects the specific connotation of the principle of good faith. Some scholars believe that the principle of good faith is the "imperial clause" of civil law, while civil law belongs to private law. The principle of trust protection is the basic principle of administrative law, while administrative law belongs to public law, and Article 8 of the Administrative Procedure Law of Taiwan region of China stipulates the two principles separately, which is not confused. Based on this, the principle of good faith should not be used as the theoretical source of the principle of trust protection. However, from the perspective of general legal principles, the principle of good faith in private law can also be applied in public law, and, from the analysis of the meaning of the principle of good faith, it itself has the importance of trust. Therefore, the principle of good faith can be used as the theoretical source of the principle of trust protection. 3. Basic rights guarantee theory. There are two theories in the theory of basic rights protection, the property right theory and the freedom right theory. The former argues that the Constitution guarantees immunity from infringement of a citizen's rights, whether that right is future or retroactive. These guarantees can be realized through property rights and expropriation compensation. For example, Article 8 of my country's Administrative Licensing Law stipulates that if property losses are caused to citizens, legal persons or other organizations, the administrative agency shall provide compensation in accordance with the law. The state should compensate for the damage caused by relying on the old law. The latter believes that trust protection is the embodiment of the right to protect freedom, people can demand that the exercise of administrative acts shall not infringe on individual rights, and should guarantee the possibility of people to realize their own acts by relying on the law. Therefore, the principle of trust protection requires that the administrative agency revokes or annuls the previously published provisions in force without prejudice to the rights of citizens who have relied on the provisions. The practical source of the principle of three faith-based protection. 1. Germany. The principle of trust protection originally originated in the Federal Republic of Germany, and the 1956 decision of the High Administrative Court of West Berlin of the Federal Republic of Germany triggered a discussion of trust protection in administrative law. Articles 48 and 49 of the Federal Procedural Code provide for the ex officio revocation of the administrative treatment of illegal grants and the ex officio repeal of the administrative treatment of legal grants, respectively. In addition, Germany, in stipulating the scope of application of the principle of trust protection, provides for the assurance of the effectiveness of the administrative plan, on the one hand, to ensure the stability of the individual's expectations of the administrative plan; on the other hand, according to the local political, economic and environmental situation, the administrative plan should be adjusted in due course. 2. Great Britain. The meaning of the UK's legitimate expectations is equivalent to the principle of trust protection, and the 1987 Ruddock case made the UK gradually pay attention to the principle of legitimate expectations. If the behavior of public institutions makes individuals expect it, if they want to change it, they need to listen to their opinions, unless the public interest suffers significant damage. In addition, English law provides for the principle of estoppels, which has a similar meaning to the principle of legitimate expectations and embodies the principle of trust protection. 3. United States, France. Although the United States and France do not specify the principle of trust protection, they are expressed through other principles. The principle of trust protection in the United States is through mutual trust and loyalty between administrative agencies, limiting the effective date and retroactivity of regulations, and prohibiting the performance of confession. France expresses the principle of trust protection through the protection of vested interests and the non-retroactivity of administrative law. IV. Conditions for the application of the principle of trust protection 1. Basis of trust. The basis of trust is the premise of trust protection, that is, the administrative acts of administrative organs that lead to trust, including concrete administrative acts and abstract administrative acts. Most scholars believe that the principle of trust protection should run through the whole process of administrative acts, in addition to invalid administrative acts, whether it is specific administrative acts or abstract administrative acts, whether it is legal administrative acts or illegal administrative acts, even if the administrative organs continue administrative practice, administrative inaction, should reflect the principle. 2. Reliance performance. The performance of trust refers to the disposition of the administrative counterpart due to the administrative act made by the administrative organ, including the disposal and use of property. German courts have given a broader interpretation of the act of disposition, as long as the administrative counterpart makes profound and lasting changes to the property, including acts of omission, the administrative organ is not allowed to revoke. 3. Legitimate trust. Article 48, paragraph 2, of the Federal German Code of Administrative Procedure lists three specific situations in which the principle of trust protection does not apply. Based on this, the principle of trust protection should be applied under the premise that the administrative counterpart is not at fault. It should be clear that the judgment of legitimacy, there are different views in theory, some scholars think that personal interests should be compared with the public interest, when the personal interest is greater than the public interest is justified; some scholars believe that legitimate not only requires legitimate expectations, but also still believes that the realization of the expectation should be guaranteed after the administrative organ changes its strategy. However, public welfare is not the only criterion for the establishment of trust protection, even if there is an urgent public interest, trust protection can still be considered, but the way of protection is changed to property compensation. V. Ways of protection of the principle of trust protection Theoretically, there are two ways to protect the trust interests of the relative person, survival protection and property protection. The former refers to the legal relationship between the subjects of administrative legal relations arising from administrative acts, regardless of whether they are legal or not, to stabilize the legal state trusted by the administrative counterpart. Two kinds of protection for the specific situation is different, the protection effect is not the same. 1. Survival protection. This protection reflects the legislative intent of the principle of trust protection, that is, to maintain the relative's trust in the appearance of the law. There is a difference in the way of survival protection when distinguishing between legitimate and illegal acts of benefit. For legitimate acts of benefit, the administrative organ shall uphold the principle of administration according to law and the principle of trust protection to survive its effectiveness; for illegal acts of benefit, if the trust is worthy of protection, it shall continue to survive; if the trust is not worthy of protection, in accordance with the principle of administration according to law, it shall be revoked and compensation for the losses of the counterpart. 2. Protection of property. Article 49 of the German Administrative Procedure Act stipulates that when an administrative organ annuls an administrative act of benefit, it shall, on the application of the counterpart, compensate the property disadvantage suffered by him or her as a result of his or her reliance on the deterministic force of the administrative act. Article 120 of the Administrative Procedure Law of the Taiwan Region stipulates that after the illegal administrative act of granting benefits has been revoked, the revocation authority shall provide reasonable compensation for the property damage suffered by the beneficiary as a result of relying on the disposition. The amount of compensation shall not exceed the benefit of the beneficiary as a result of the existence of the disposition. In the mainland, a distinction is made between compensation and compensation, and in view of the illegal act of granting benefits, the administrative organ shall give reasonable compensation to the counterpart when revoking the administrative act; in view of the legitimate administrative act of granting benefits, if the specific circumstances change, the relative shall not be abolished, the relative shall be compensated. The above two ways are the more common ways of protection, but the principle has also been questioned by many scholars, focusing on the uncertainty of the scope of compensation, increasing the instability of the application of the law. For example, while frequently applying the principle of trust protection, the European Court of Justice has held that illegal benefits should be revoked in accordance with lawful administration, especially for enterprises. Its judgment is based on the view that the public interest takes precedence over the individual interest, but this view undoubtedly shelves the principle of reliance protection under article 48 of the German Administrative Procedure Code. Professor Schwartz commented: "Although the EU Court of Justice is also aware of the concept of trust protection, its use of this principle is more limited than that of German domestic law." Therefore, when our country makes reasonable compensation, the amount of compensation cannot be less than the benefits obtained by the relative person as a result of the administrative act. Six norms of the application of the principle of trust protection. There are still problems in the principle of trust protection in our country. First of all, the boundary between administrative compensation and compensation is blurred. China's Administrative Licensing Law compensates and compensates for the losses caused to the administrative counterpart by the revocation or annulment of administrative acts by administrative organs. However, the standard of compensation and compensation is not defined, and there are no specific rules for operation, so in practice, it is easy to lead to excessive discretion and damage the legitimate rights and interests of the administrative counterpart. Secondly, the comparative measurement of public interest and individual interest is unbalanced. The principle of trust protection solves the problems arising from the trust interests of the administrative subject and the administrative counterpart, which to a large extent involves the public interest. The "Administrative Licensing Law" stipulates that based on trust and protection administrative agencies shall not modify or abolish administrative acts that have taken effect, but they can do so for the needs of the public interest and compensate the counterparty for damage. It can be seen that when faced with the loss of public interest, priority should be given to it. However, if the limits of the public interest are not well grasped, there will be acts of harming the rights and interests of the counterparty in the name of damage to the public interest. Therefore, the scope of public interest should be clarified, that is, facing the public, not a part of the group; the content is public; the nature is public. If the principle of trust protection is to play a role in the legal order of a country, a very important prerequisite is that the legitimate rights and interests of individuals are valued, rather than just an accessory to the public interest. In view of the problems existing in the principle of trust protection in our country, our country should promulgate specific implementation rules to make clear, or promulgate the administrative procedure law, and regard the principle of trust protection as the principle of the whole field of administrative law. At the same time, the standards of administrative compensation and compensation should be clarified through clear procedural steps to avoid secondary damage to the administrative counterpart; the principle of trust protection is a means to solve the problems caused by the trust interests of administrative agencies and administrative counterparts. Correctly defining the scope of public interests is very important to protect private rights and interests. Therefore, in practice, it is necessary to fully consider the specific circumstances and reasonably define disputes. The principle of trust protection is an important principle in administrative law, which plays an important role in restricting administrative power and ensuring the interests of administrative counterparts. Referring to the provisions of the principle of trust protection in foreign countries, we can find that the principle has gradually been paid attention to by law and a perfect legal system has been established. However, the principle of trust protection in China is still in the stage of theoretical exploration, and the specific concept and balance of interests should continue to be improved.
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2021-11
Viewpoint... Creditors face legal risk prevention in bankrupt enterprises.
Introduction In recent years, more and more enterprises have been ruled by the people's court to enter bankruptcy proceedings. Because early bankruptcy cases are not common, all parties often fail to take the best measures to deal with enterprises on the verge of bankruptcy, resulting in frequent risks after bankruptcy. Combined with his own bankruptcy management experience, the author combs and discusses the legal risk prevention of bankrupt enterprises from the perspective of creditors, with a view to enlightening readers. Text Under the insolvency law, ordinary creditors are usually faced with partial liquidation and partial loss after the order of liquidation of ordinary insolvency claims. At the same time, existing laws also establish systems such as retention of title, security interests, in-transit subject matter retrieval and debt set-off, which can enable individual creditors to obtain preferential settlement from losses. Therefore, when a creditor discovers that a claim has been formed against an enterprise on the verge of bankruptcy or bankruptcy, it should be sorted out in a timely manner to avoid the loss of priority rights. 1. Title retention system Article 641 of the Civil Code and other relevant laws establish a retention-of-title system, in which the parties may agree that in a commodity transaction in which the ownership of property is transferred, the other party retains its ownership of the property after the owner of the property has transferred the possession of the subject matter, and the transfer of ownership occurs only after the completion of certain conditions. Article 38 of the bankruptcy law stipulates that after the people's court accepts the bankruptcy application, the property in the possession of the debtor that does not belong to the debtor may be retrieved by the right holder of the property through the administrator. Thus, when an enterprise is on the verge of insolvency and must trade and is a seller, creditors can add a retention-of-title clause to the contract to avoid insolvency losses. 2, the real right security system. Articles 386, 387, 394, 425 and 447 of the Civil Code and other relevant laws establish a system of security interests, whereby the security interest holder shall, in accordance with the law, enjoy the right to priority compensation for the secured property in the event of the debtor's failure to perform the debts due or the realization of the security interest agreed upon by the parties. Article 109 of the insolvency law provides that a right holder with a security right in the particular property of the insolvent person has a priority right to payment of that particular property. Therefore, when faced with the imminent bankruptcy of the enterprise and must deal, creditors strive to establish a security interest on the basis of claims. After the debtor's bankruptcy, creditors should pay attention to whether there is an organic lien on the debtor's property, in addition to sorting out the mortgaged property and the pledge in a timely manner. (3) Other systems In the subject matter retrieval system, article 39 of the bankruptcy law stipulates that when the people's court accepts the bankruptcy application, the seller has shipped the subject matter of the sale to the debtor as the buyer, and if the debtor has not received and has not paid the full price, the seller may retrieve the subject matter in transit. Debt set-off system, article 40 of the bankruptcy law provides that creditors who have debts to the debtor before the bankruptcy application is accepted may claim set-off from the administrator. Concluding remarks The author sorts out the legal risk prevention measures that creditors should take in different time periods, which can be summarized as follows: when the debtor's credit rating drops, creditors should focus on the retention of title and real right security; After learning that the debtor is bankrupt, creditors should sort out whether there is any object in transit and possession of the debtor's assets. In the declaration of bankruptcy claims, creditors should sort out whether there are various priorities.
2021-11-19
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2021-11
Viewpoint | Can't use Pfizer's prescription for free, learn Pfizer's contract for free
A wave of epidemics in the world again, double eleven express collection are uneasy, when is the head it, see what new progress the pharmaceutical giants have. On November 4, the world's first new crown oral antiviral drug, which can significantly reduce the risk of hospitalization or death of new crown patients by about 50% (phase III clinical mid-term data), was approved for marketing in the UK. On November 5, Pfizer disclosed the phase II/III clinical trial mid-term data of new crown oral antiviral drug PAXLOVID(PF-07321332 + Ritonavir). The results showed that the risk of hospitalization or death of patients was reduced by 89%, this inner volume is pleasing to the eye. Not yet, on November 16 Pfizer issued a statement that it had signed a patent license agreement with MPP and that Pfizer's new crown oral drug, once approved by the regulatory authorities (Pfizer announced that it had submitted an application to the U.S. Food and Drug Administration for an emergency use authorization for its experimental anti-new crown virus oral drug PAXLOVID. The U.S. Food and Drug Administration's advisory board is scheduled to meet on November 30 to discuss the application), will authorize the pharmaceutical company to produce its new crown oral drug generic, and, as long as the new crown outbreak is still listed by the World Health Organization as a public health emergency of international concern, will exempt all national drug sales patent and technology royalties covered by the agreement. Seeing this, are the children going to start preparing their bags to make up for those fallen global trips? wait a minute, in the same mood, the author first looked at this glittering holy agreement, found that China is not in the authorized sales area, it is estimated that one-to-one license agreement negotiations are not in the day and night. All right, since you can't use Pfizer's prescription for free, then learn Pfizer's contract for free (please download it from MPP website for students who like to collect various templates, knowing that you don't have time to find it, the link is posted here: https://medicinespatentpool.org/licence-post/pf-07321332/) First, look at the parties to the contract. The licensor PF PRISM HOLDINGS B.V. is a private limited company (private limited company) registered in the Netherlands. This Pfizer is not another Pfizer, but it is also stated in the preamble that "this Pfizer" or its related parties (Affiliates) hold patent rights and licensed technology, and "this Pfizer" has the right to grant a license. This kind of operation will inevitably make people whisper. Don't panic first. If Pfizer plays tricks against the background, it will do more harm than good. If you know who this MPP is, you will be more relieved. The full name of MPP MEDICINES PATENT POOL FOUNDATION, registered in Switzerland, the official website introduces itself as "a United Nations-backed public health organization working to increase access to, and facilitate the development of, life-save medicines for low- and middle-income countries", a public health organization backed by the United Nations, whose duty is really sacred, and comes from a noble family (funder is Unitaid mechanism-international assistance), it seems that those with PP are not ordinary roles. Although the possibility of Pfizer playing tricks on this agreement is extremely low, in general transaction contracts, small partners must pay attention to the fact that multinational companies generally use branches and subsidiaries to sign contracts with counterparties for reasons such as risk isolation and strategic layout. The due diligence and performance ability of the contracting entity have become necessary steps in risk management. Second, look at the contract jurisdiction law and dispute resolution clauses. The governing law of the agreement is the new york law of the United States (article 8.5 of the agreement), and it is subject to all applicable economic sanctions and export control laws (including the trade control law of the United States and article 4.8 of the agreement). Perhaps MPP respects Pfizer's good deeds very much and gave Pfizer the case in the negotiation of the contract. There are many differences in the culture, thinking and business habits of the parties in cross-border transactions. The jurisdiction law of a cross-border contract determines the big rules of the game between the two parties, and often reflects the negotiating position of the two parties to the contract. With the improvement of China's international status and the improvement of the rule of law, the author sees more and more that Chinese law has become the jurisdiction law in the foreign-related contracts signed by the Chinese side, and the importance of Chinese lawyers in international transactions will naturally rise. As foreign-related lawyers, their gratitude to the country, the party and the people comes from the bottom of their hearts. Then there is the legendary "midnight clause"-the dispute resolution clause (it is common for cross-border commercial negotiations to be put last, and it is common for midnight to be put on the agenda, but it is so important that even when it comes to midnight, the parties will not give up the fight). Will such an official and public welfare agreement be mentioned here? No, they used 7 paragraphs and 556 words to make a detailed agreement on the dispute resolution procedures and methods of both parties (see Article 8.6 of the agreement for details). The whole mechanism of negotiation-senior management consultation-non-binding mediation-ICC arbitration in new york, USA (arbitration language, arbitration seat, composition of arbitration tribunal, information disclosure, cost bearing, judicial review, injunction restriction, exception to patent infringement litigation) is closely fitting and worthy of careful taste. Finally, look at the main text of the contract. The contract has 89 pages and 34127 words in total. It really takes some effort to look at it carefully. MPP has carefully refined the core terms with the 268-word Key Features. As a public organization with such a strong sense of service, let's not waste this kindness. The author is also lazy and a kind porter. The translation in Chinese and English is as follows (if the translation is not allowed for medical majors, please ask experts to make bricks for correction): Note: The list of 95 countries in the authorized sales area is listed in Schedule 3 of the agreement, all of which are "bitter children" in dire straits ". Benefiting from the policy requirements of some overseas institutions and organizations on information disclosure, and moving our hard-working little hands, many excellent international transaction contracts are available free of charge. Just like this contract drafted by lawyers from international organizations and world pharmaceutical giants, there is no doubt about the level and quality. It is also valuable to convert it into hourly rates (500-1000 US dollars per hour for weak speculation) and is a valuable material for us to learn. Although I stole a lazy one here, I will make up for it later. If there are any special and wonderful clauses, I will share them with you later. There is a long way to go for the growth of foreign-related lawyers. I will go up and down to search for them. I look forward to studying, exchanging and discussing these excellent models with more colleagues. We will also introduce more foreign-related legal study materials, remove their dross and extract their essence for our use and add a handful of firewood to the forging of foreign-related talents.
2021-11-18
17
2021-11
1. relevant legal provisions Labor Contract Law of (I) Article 4 Employers shall establish and improve labor rules and regulations in accordance with the law to ensure that workers enjoy labor rights and perform labor obligations. When the employing unit formulates, revises or decides on rules and regulations or major matters directly related to the vital interests of workers, such as labor remuneration, working hours, rest and vacation, labor safety and health, insurance and welfare, staff training, labor discipline and labor quota management, etc., it shall be discussed by the staff and workers' Congress or all the staff and workers, put forward plans and opinions, and shall be determined through equal consultation with the trade union or staff and workers' representatives. In the process of implementing rules and regulations and decisions on major issues, if the trade union or employees consider it inappropriate, they have the right to propose to the employing unit and revise and improve it through consultation. The employing unit shall publicize the rules and regulations and decisions on major matters that directly involve the vital interests of the workers, or inform the workers. (II) (I) of Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases Article 50 The rules and regulations formulated by the employer through democratic procedures in accordance with Article 4 of the Labor Contract Law, which do not violate national laws, administrative regulations and policies, and have been publicized to the workers, can be used as the basis for determining the rights and obligations of both parties. If the internal rules and regulations formulated by the employer are inconsistent with the contents of the collective contract or labor contract, and the laborer requests that the contract be applied first, the people's court shall support it. (III) Notes on Certain Provisions of the Labor Law Article 4 Employers shall establish and improve rules and regulations in accordance with the law to ensure that workers enjoy labor rights and perform labor obligations. The term "in accordance with the law" in this article should be understood in a broad sense and refers to all laws, regulations and rules. Including: the constitution, laws, administrative regulations, local regulations, ethnic autonomous areas, but also in accordance with the local autonomy regulations and special regulations, as well as administrative regulations on labor. the People's Republic of China Companies Act of (IV) Article 18 Paragraph 3 When a company studies and decides on major issues in restructuring and operation, and formulates important rules and regulations, it shall listen to the opinions of the company's trade union, and listen to the opinions and suggestions of the employees through the employee representative assembly or other forms. 2. types of systems that need to be submitted to the Workers' Congress or all employees for discussion 1. When the employer formulates, revises or decides on rules and regulations or major matters directly related to the vital interests of workers, such as labor remuneration, working hours, rest and vacation, labor safety and health, insurance benefits, staff training, labor discipline and labor quota management. (Article 4 (2) of the Labor Contract Law) 2. When the company studies and decides on major issues in restructuring and operation, and formulates important rules and regulations. (Section 18 (3) of the Companies Act) Steps 3. the introduction of democratic procedures According to the provisions of Article 4, paragraph 2 of the Labor contract Law, the democratic procedure for an employer to formulate or amend rules and regulations is divided into the following steps: (I) the convening of a congress of the staff and workers or a general meeting of the staff and workers; Regarding the relevant work processes and requirements of the workers' congress, some provinces and cities have promulgated regulations applicable to their provinces and cities. Now, taking the Beijing area as an example, referring to the "Regulations on Democratic Management of Enterprises" and the "Beijing Municipal Democratic Management of Enterprises and Workers' Congress (Interim) Measures", the relevant work processes and requirements of the Workers' Congress are summarized as follows: 1. Staff representatives (1) Any employee who enjoys political rights in accordance with the law and has established labor relations with the enterprise may be elected as an employee representative. (2) The employee representatives of the enterprise workers' congress should include employees, scientific and technological personnel, management personnel and other employees; the management personnel of enterprises above the middle level shall not exceed 20%; young people, female employees, and labor dispatch employees should account for a certain proportion. (3) The employee representatives implement a permanent system, which is generally re-elected every three to five years. Small enterprises with greater employee mobility can be re-elected once a year according to the actual situation of the enterprise, and can be re-elected. 2. Organizational structure and working procedures of the workers' congress (1) Large and medium-sized enterprises should implement the system of workers' congress. The minimum number of representatives shall not be less than 30; Enterprises with less than 100 employees may implement the system of workers' assembly. Workers' congresses are held at least twice a year for three to five years. Large enterprises are held at least once a year. Each meeting must be attended by more than 2/3 staff representatives before it can be held. (2) Presidium of the Congress. The members of the presidium shall be selected from the staff representatives, and there shall be a certain proportion at all levels. Among them, no more than half of the middle-level and above management personnel shall be selected. The election procedures for the members of the presidium: 1. The candidates for the presidium shall be recommend by the staff delegations (groups) according to the prescribed quota; 2. A meeting of the heads of the delegation (group) shall be held to fully deliberate and put forward the list of candidates; 3. At the preparatory meeting of the workers' Congress, the candidates shall be elected by secret ballot. Responsibilities of the presidium of the workers' congress: 1. Preside over the workers' congress and organize various activities during the congress; 2. Determine the topics of the congress; 3. Draft resolutions of the congress; 4. Deal with other issues that occur during the congress. (3) Special Working Group (Committee) of the Workers' Congress The special working group (committee) is a regular office under the Workers' Congress according to the actual work and needs of each unit. Such as: proposal group, operation management group, safety production group, employee insurance and welfare group, financial review group, rules and regulations supervision group, equal consultation group, democratic appraisal group, etc. The members of the special working group shall be nominated among the staff representatives, which shall be approved by the workers' Congress. If the work needs, non staff representatives with certain business expertise may be employed. The main person in charge of the enterprise department should not be the leader of the counterpart special working group. The tasks of the special working group: 1. Before the meeting, collect and summarize employee proposals; 2. After the meeting, check and supervise the implementation of the resolutions and proposals of the conference, and study and deal with issues within the scope of the group's responsibilities; 3. Handle the authorization of the workers' congress Other matters assigned; 4. Report to the workers' congress according to regulations. (4) Convening of the Workers' Congress The preparatory meeting of the workers' congress: 1. The preparatory meeting must be held before the workers' congress is held, and the preparatory meeting of the workers' congress shall be presided over by the presidium; 2. Before the preparatory meeting is held, the report to the workers' congress and all documents and materials that need to be discussed and approved by the workers' congress shall be sent to the workers' representatives at least 7 days in advance to solicit opinions and solicit proposals from the workers' representatives. 3. The trade union and all staff delegations (groups), comprehensively sort out the proposals of the Congress and submit them to the presidium of the Congress for study and decision; 4. Convene a preparatory meeting of the Congress, adopt the agenda and work report of the Congress, and deal with various matters that should be resolved before the Congress. Workers' Congress Meeting: Convene a formal meeting of the Workers' Congress to discuss, adopt and decide on various topics of the meeting and make resolutions of the Congress. (5) Resolutions of the Workers' Congress: 1. Resolutions and decisions made by the Workers' Congress within its scope of functions and powers have legal effect and cannot be modified without the consent of the Workers' Congress; 2. If it is really necessary to modify, it must be submitted to the Workers' Congress for reconsideration and can only be implemented with the consent of the majority of staff representatives. (6) Joint meeting of heads of staff delegations (groups). When the workers' congress is not in session, the joint meeting of the heads of the staff delegation (group) temporarily deals with certain important issues that need to be resolved urgently by the enterprise. The specific requirements are as follows: 1. The members of the joint meeting are composed of the head of the staff delegation (group), the main person in charge of the party and government of the enterprise, and the person in charge of the special group of the workers' Congress; 2. The decision made by the joint meeting shall be confirmed by the next workers' Congress and report the implementation. (II) to discuss the system to be designated or modified with the staff representatives or all staff; (III) allowing staff or staff representatives to put forward proposals and opinions on the draft of formulating or revising the system; The final text shall be determined (IV) consultation with the trade union or employee representatives on an equal footing. The rules and regulations (V) be publicized or informed to the workers. There are many methods that employers can adopt to publicize or inform. The common methods are as follows: 1. Issue the employee handbook and sign for it; 2. Circulate and sign the rules and regulations; 3, rules and regulations unified training and study, keep training materials and sign-in credentials; 4, the company network publicity, and inform in the labor contract; 5. E-mail notification. 4. other considerations related to the implementation of democratic procedures 1. The contents of the rules and regulations shall be lawful and compliant. According to Article 4 of the Explanation on Certain Provisions of the Labor Law and Article 50 of the Interpretation (I) of the Supreme People's Court on the Application of Laws in the Trial of Labor Dispute Cases, the rules and regulations of the employer shall abide by laws, regulations, rules and policies. The content of the rules and regulations should be reasonable. The law does not clearly stipulate the standard of reasonable determination. Whether it is reasonable or not mainly belongs to the category of judicial discretion, which needs to be determined according to the specific situation. In this regard, it should be based on the principle of fairness and whether it is in line with the general evaluation criteria of normal people, taking into account the type of company, size, characteristics of the job, the nature of the behavior of workers and the number of violations of the rules and regulations, violations of the rules and regulations to the company's losses and other factors to judge whether the rules and regulations are reasonable. 3, the content of the rules and regulations should be consistent with the labor contract or collective contract agreement. According to Article 50 of the Interpretation (I) of the Supreme People's Court on the Application of Laws in the Trial of Labor Dispute Cases, if the internal rules and regulations formulated by the employer are inconsistent with the contents of the collective contract or labor contract, and the laborer requests that the contract be applied first, the people The court shall support it. Therefore, it is recommended that the content of the rules and regulations be consistent with the labor contract or collective contract. 4. Preservation of evidence of the fulfilment of democratic procedures In order to prove that democratic procedures have been fulfilled, enterprises need to keep the following written materials: meeting minutes, meeting minutes, sign-in sheets, or audio and video recordings of the whole meeting, e-mails, etc.
2021-11-17
16
2021-11
Foreword The Ministry of Education and the Ministry of Finance issued the "Administrative Measures for Student Internships in Secondary Vocational Schools" (hereinafter referred to as the "Measures"), which mainly refers to secondary vocational schools in accordance with the requirements of professional training objectives and the arrangement of teaching plans, and organize students to The teaching practice and internship conducted by employers such as enterprises are important contents of professional teaching in secondary vocational schools. For students, internship is the process of applying theoretical knowledge to practice, and it is an important part of learning during school and about to enter the workplace. Through internships, students can accumulate practical experience, increase social experience, adapt to social life early, increase opportunities for future employment, and facilitate the smooth connection between school study and employment. During the internship, students often encounter legal disputes. The common legal disputes mainly include work injury, personal injury, violation of discipline and property safety. In this article, the author mainly discusses the problems of violation of discipline, property safety and disappearance, in order to give readers some enlightenment. Text 1. violation of discipline If the discipline is violated during the student's internship training, each school will generally formulate relevant regulations before the student's internship training to regulate the behavior of the student during the internship training. For example, during the internship period (including holidays), students who leave the internship post without the consent of the internship unit, the school internship employment guidance center and the head teacher, or who fail to go through the formalities for changing the internship unit in accordance with the regulations, shall be given a warning or more; those who leave the internship post for more than one day without authorization shall be given a serious warning or more on the basis of absenteeism. Other accidents (such as traffic, safety accidents, the student himself shall bear the responsibility; those who have lost contact for two consecutive weeks shall be withdrawn from school in accordance with the relevant regulations of the state and the school. Those who do not abide by the factory rules and regulations during the internship (such as being late, leaving early, stringing, sleeping, taking off duty, drinking alcohol, etc.) shall be given warning or above according to the seriousness of the case. Therefore, if economic losses are caused to the enterprise, the responsibility shall be borne by the intern students. Those who violate the operation rules shall be given the above demerit punishment according to the seriousness of the circumstances; those who cause heavy economic losses shall be dealt with in accordance with the relevant laws and regulations of the state and the relevant rules and regulations of the internship unit, and the college shall be given probation. From this, we can infer that students violate discipline during practical training. The basis for processing is generally the relevant system or regulations during the internship and training period formulated by the school. If students not only violate discipline, but even violate the law, they must be dealt with in accordance with the relevant laws of the country. 2. property security Property is the relationship between people and people in the form of rights and obligations stipulated by law, which is the content of material and thought that has a certain significance for the survival and development of human beings. Based on the basis of the creation of property rights, China's civil law breaks down property rights into property rights, claims, intellectual property rights and inheritance rights. The way to protect the personal property of college students is to protect themselves, and the other is to protect themselves. Other protection is to use laws, regulations and rules to rely on the protection of state administration, judicial organs, university security functional departments and other administrative organizations. Self-protection, or self-protection, is to rely on one's own awareness of property safety and basic common sense, rely on one's own strength to prevent illegal property infringements in advance, timely defense and protection afterwards. Pre-prevention is mainly reflected in anti-theft, anti-robbery, anti-fraud, anti-accident, etc.; timely defense is mainly reflected in the prevention of infringement, legitimate defense, emergency avoidance; after-the-fact protection is mainly reflected in the punishment of infringement to recover losses. According to the causes of property damage, mainly divided into theft, robbery, snatching, fraud and other types. The situation of property loss of students practicing outside the school is mainly to strictly distinguish whether the loss occurs within the jurisdiction of the internship unit or outside the jurisdiction. If theft, robbery, fraud and other incidents in the unit cause property losses, and the natural person who carries out this behavior is a regular employee of the internship unit, then the internship unit shall be liable for the property losses of the students. There is another situation that we should also consider: even if such incidents occur within the internship unit, but the person who carries out this behavior is not an employee of the unit, then the internship unit should not only bear the liability for property damage, but also the security department of the internship unit can not escape the responsibility of neglect of management. The property loss of the internship students occurred outside the internship unit, and the loss caused by the lack of personal protection has nothing to do with the internship unit. In recent years, a large proportion of the victims of materialistic crimes are interns. This group does not have a strong sense of self-protection, social experience is still shallow, and some interns squandered as soon as they received their wages, and many criminal suspects targeted this special group. Therefore, the internship students have not yet graduated and left the campus. They must correct their personal mentality, strengthen their personal self-protection awareness, learn some legal knowledge by themselves, and know how to protect their own rights and interests when their personal interests are violated. In the contemporary society with the rapid development of science and technology, a large number of high-tech and high-tech companies and enterprises have emerged, and the business secrets of enterprises have become an important part of the competition between units. In order to prevent employees from divulging business secrets after their employment or departure, many enterprises have stipulated trade secret protection and non-competition clauses in their labor contracts, or have signed separate trade secret protection and non-competition agreements with their employees. The "Labor Contract Law" stipulates: "The employer and the employee may agree in the labor contract to keep the employer's business secrets and confidential matters related to intellectual property rights. If the students of internship training are entrusted with important tasks by the internship unit and sign a confidentiality agreement with the internship unit due to their outstanding abilities, but they do not abide by it, divulging the company's business secrets and bringing huge losses to the internship unit, they will bear serious legal consequences. Article 24, paragraph 1, of the "Labor Contract Law" stipulates that the personnel subject to competition restrictions are limited to the senior management personnel, senior technical personnel and other personnel with confidentiality obligations of the employer. In practice, the protection of trade secrets should be mainly aimed at six types of employees in key positions of the company: 1. senior managers, who often master the core trade secrets of the company; 2. technical research and development personnel, who often know important trade secrets or confidential information due to work reasons; 3. senior marketing personnel, who directly hold a large number of customer resources; 4. personnel in important management positions, such as HR, financial management, legal management personnel; 5. Secretarial personnel, because they often serve as meeting minutes, management and distribution of documents, the possibility of their contact with commercial secrets is very large; 6. Other personnel who contact corporate secrets. For workers who have the obligation of confidentiality, the employer may agree with the laborer in the labor contract or confidentiality agreement on the non-competition clause, and agree that after the termination or termination of the labor contract, the laborer will be given economic compensation on a monthly basis within the non-competition period. If the laborer violates the non-competition agreement, he shall pay liquidated damages to the employer in accordance with the agreement. It should be noted that according to the provisions of the labor contract law, if the employer requires the employee to perform the non competition agreement, it must sign the non competition agreement with the employee in advance, and the prerequisite for the non competition restriction is that there must be a trade secret that can be protected. If there is no trade secret that needs to be protected, the non competition restriction clause lacks the basis for establishment, Even if there is an agreement, it is invalid. In addition, it is not ruled out that the violation of operating procedures during the internship training period will cause losses to others. Although the identity of the internship students is still unclear, there is a de facto labor relationship between the internship students and the internship unit. Therefore, if the worker's illegal operation causes losses to others, the enterprise where the worker is located shall compensate. Then can be recovered from the workers in accordance with the law. If property damage is caused to the internship unit, the internship student himself will bear the corresponding liability. 3. intern student missing The interpretation of the word "missing" in the Modern Chinese Dictionary is that the whereabouts are unknown and no trace can be found. The general interpretation of the law on disappearance is the declaration of disappearance. If a citizen's whereabouts are unknown for two years, the interested party may apply to the people's court for him to be a missing person. The declaration of disappearance requires the following four conditions: (I) there are unaccounted for facts. Such as floods, earthquakes, war, etc. If you know that someone is somewhere, even if you haven't returned for a long time, you can't be considered missing. The whereabouts of the (II) must be unknown for two years. Where the whereabouts of those unaccounted for during the war are unknown, the period of unaccounted for shall be counted from the date of the end of the war. The (III) must be applied to the people's court by the interested party. Interested persons include spouses, parents, adult children, grandparents, brothers and sisters, and citizens and legal persons who have civil rights and obligations to the person declared missing. A (IV) must be declared missing by a people's court in accordance with legal procedures. Although there are not many cases of students missing during the internship, once the students disappear, it will have a serious impact on the family, school and society. If such an incident occurs, how to share the legal responsibilities of all parties? How to deal with the matter in a timely manner by the school and the internship unit? In judicial practice, the general situation is that if a student disappears during the internship, the school and the internship unit should bear the corresponding legal responsibility, but how to allocate the responsibility and how to compensate depends on the specific situation. If it is indeed the cause of the school and the internship unit, it is generally only liable for civil compensation, and the compensation does not exceed 50% of the total compensation amount. Therefore, whether the school management is in place plays a vital role. Specific management methods should be clearly defined in the internship agreement. For example, the time and number of times the school contacts students, the number of student internship reports, internship logs and other related issues. If the school management is indeed in default, then the school should bear the corresponding legal responsibility. As for the responsibility of the internship unit should be judged according to the internship contract, what are the responsibilities of the internship unit for the management and supervision of the students during the internship? For example, during the working hours, the students go out without permission, the unit is negligent in management, and the parents are not contacted. That must be responsible. If the student is found missing, notify the relevant departments in time, and the handling is in place in time, then the responsibility of the internship unit will be reduced or even no responsibility. "Take precautions before they happen", the school, the internship unit, and the students themselves must sign an internship agreement, and the content of the agreement clarifies the power and obligation relationship of the three parties. Schools and practice units should develop emergency plans for students missing. Author's point of view and reasons Lawyer's summary: The above mainly analyzes several types of disputes common to students during their practical training and the legal basis or methods for handling them. Of course, in real life, the legal disputes that students have during the internship training are not limited to the above types, and the specific situation must be analyzed in detail. However, it is not difficult to find that all kinds of disputes emerge in endlessly during the internship and training of vocational college students. In fact, the key is that schools, internship units and students can really "nip in the bud".
2021-11-16
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
