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Viewpoint | Discussion on the "corporatization" of for-profit private schools
The State Administration for Industry and Commerce and the Ministry of Education jointly issued the ''Notice on the Registration and Management of the Names of For-profit Private Schools'' (hereinafter referred to as the ''Notice'') (Industry and Commerce Enterprise Note [2017] No. 156) It is clearly stipulated that for-profit private schools should be registered in the form of companies, so that for-profit private schools put on the image of the company and opened the door to market-oriented competition for for for-oriented for-oriented private schools, this is of great significance to the development of private education in China. However, there is still some controversy about the corporate attributes of for-profit private schools, and this paper aims to explore the legitimacy of for-profit private schools registered as companies and the scope of protection of the Company Law under the background of gradual "corporatization. The legitimacy of a for-profit private school registered as a company is discussed. Discussion on the Legality of (I) for-profit Private Schools Registered as Companies Although the "Notice" clarifies that for-profit private schools must adopt the form of a company when registering, this provision is controversial. Some scholars believe that the company is a typical merchant subject, and private schools are non-merchant commercial subjects, the two are not the same, but under certain circumstances its establishment, registration, capital contribution, governance, etc. can apply the relevant provisions of the Company Law or the Partnership Law. Some lawyers engaged in practice believe that the "Private Education Promotion Law" only clarifies the corporate legal person status of for-profit private schools, but does not limit it to the scope of corporate legal persons. The provisions of the "Notice" actually deprive for-profit private schools. The opportunity to register as a non-corporate enterprise legal person is a restrictive interpretation of the "Private Education Promotion Law. The legal rank of the ''Notice'' belongs to departmental regulations. According to Article 45, paragraph 1, of the Legislative Law, only the Standing Committee of the National People's Congress has the right to interpret the law, and the two ministries and commissions impose restrictions on the ''Private Education Promotion Law'' in the form of departmental regulations. There is no basis in the law. The author believes that Article 10 of the "Private Education Promotion Law" only stipulates that private schools (including for-profit private schools) should have legal personality, but it does not specify the type of legal person to which they belong. Chapter III of the General Provisions of the Civil Code, on the other hand, clearly defines for-profit legal persons, non-profit legal persons, special legal persons and unincorporated organizations. According to the system interpretation, for-profit private schools should be classified as for-profit legal persons. In addition, due to the corporate nature of for-profit private schools, their registration as legal persons must be based on the Regulations on the Administration of Enterprise Legal Person Registration. Article 2 of the Regulations on the Administration of Enterprise Legal Person Registration stipulates that enterprises that need to be registered as legal persons include enterprises owned by the whole people, collectively owned enterprises, joint ventures, Sino-foreign joint ventures, private enterprises and other enterprises. For-profit private schools can only be organized by individuals or legal persons, and the state, collectives and government as princesses cannot contribute as organizers of private education. Therefore, it is impossible to adopt other forms of enterprises except private enterprises. Although my country's "Interim Regulations on Private Enterprises" was abolished in 2018, Article 9 of the "Regulations on the Classification of Enterprise Registration Types" issued by the National Bureau of Statistics and the State Administration for Industry and Commerce still clarifies that private enterprises include private limited liability companies and private companies. Limited by shares, private partnerships and private sole proprietorships, the latter two do not have legal personality, therefore, for-profit private schools can only choose the form of limited liability companies or limited liability companies for registration. In summary, the current laws and regulations have regulated the types of legal persons of for-profit private schools, and it is legal and appropriate to register in the form of a company. Discussion on the Rationality of (II) for-profit Private Schools Registered as Companies The rationality of registering for-profit private schools as corporate legal persons is reflected in the applicable attitude to the Company Law in the provisions of the Private Education Promotion Law. According to Articles 19 and 59 of the Law on the Promotion of Private Education, for-profit private schools should be dealt with "in accordance with" the relevant provisions of the Company Law in terms of the distribution of school income, the handling of school balances, and the distribution of surplus property, but in practice, the application of the Company Law by for-profit private schools is much more than that. It can be seen that the application of the Company Law by for-profit private schools in the event of disputes is not only because of the guiding provisions of the Private Education Promotion Law, but because of the natural rationality of the application of the Company Law by for-profit private schools based on their corporate attributes. II Analysis of the application of the Company Law to the protection of the rights of the organizers of for-profit private schools. The corporate governance structure of for-profit private schools is different from that of ordinary companies, so there are some differences in the authority of their corporate governance institutions, and the names are also different. However, in the current judicial practice, the rights and interests of the organizers of for-profit private schools are often damaged. Since the Private Education Promotion Law does not stipulate the rights of its shareholders, its rights and interests are controversial in the process of judicial protection. Can the rights of the organizers of for-profit private schools be protected in accordance with the rights of shareholders in the Company Law? From the perspective of judicial practice, the practice of referring to the rights of shareholders to protect the interests of the organizers of for-profit private schools has been widely supported by the judicial department. Even before the amendment of the Private Education Promotion Law in 2017, the judge demonstrated from the perspective of civil law. The organizer's right to know guarantees the organizer's right to consult the accounting books of private schools, which is not reflected in the then and present Private Education Promotion Law. After the implementation of the "Private Education Promotion Law" on September 1, 2017, the court's jurisprudence even directly invoked the provisions of the "Company Law" to protect the rights of the organizer's shareholders, and this is based on sufficient jurisprudence. Of course, the application of the "Company Law" protection for the expansion of the rights of for-profit private school organizers is not without boundaries. The parts of the "Company Law" that conflict with the "Private Education Promotion Law" should be screened in judicial application. For example, ordinary company shareholders have the right to participate in the shareholders' (general) meeting, the right to elect the board of directors, the right to participate in the company's decision-making, etc., these rights are incompatible with the corporate governance structure of for-profit private schools, and are also in line with the "Private Education Promotion Law" Special provisions are contrary. Therefore, the protection of shareholders' rights of for-profit private school organizers should only cover the right to asset income (including the right to distribute profits and the right to distribute surplus property), the right to know, such as the decision of the board of directors, financial and accounting reports, the transfer and inheritance of shareholders' rights, the preemptive right of other organizers when the organizers of for-profit private schools in the form of limited companies transfer their equity, and the direct litigation right of shareholders when their own rights are damaged, the right of shareholders to represent litigation in the event of damage to the school's interests in certain circumstances, and so on. three conclusion Although the notice on the work related to the name registration and management of for-profit private schools puts on the image of a company, it can be registered as a limited liability company or a joint stock limited company in industrial and commercial registration. However, due to the differences in the governance structure of schools and companies, although they can be protected by company law, they are still subject to certain restrictions.
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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. The author mainly discusses the problem of personal injury in order to give readers some enlightenment. Text According to Article 384 of the the People's Republic of China Criminal Law, anyone who intentionally harms another person shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance. Whoever causes serious injury to a person shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years; whoever causes death or serious injury to a person by particularly cruel means and causes serious disability shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or death. On March 29, 1990, the Ministry of Justice, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security issued the Standards for the Identification of Serious Injury to the Human Body. Articles 3 and 4 of the Circular of the Ministry of Education and the Ministry of Finance on Printing and Distributing the Measures for the Administration of Student Internships in Secondary Vocational Schools stipulate that student internships shall be jointly organized and managed by schools and internship units. Schools and internship units shall safeguard students during their internships. The legitimate rights and interests of students ensure their personal safety and physical and mental health during the internship. This shows that although students go to the unit for internship, they are still not divorced from the school. The school and the internship unit have the obligation to jointly manage students. Types of personal injuries during 1. internships Personal injuries that occur between (I) intern students Internship students between the personal injury compensation events, first of all to determine the age of criminal responsibility of students. The responsibilities of minors and adults in such cases differ. Most of the responsibilities of minors are borne by their guardians, and the internship units are borne in a certain proportion. An adult (deemed to be a person with full civil capacity) is assumed by himself. With the development of the times, contemporary college students have more mature thoughts than before. From the perspective of psychological age, most of them have the ability to take responsibility. This is because with the invasion of social pluralism, contemporary college students are different from the past, and they are far more mature than their actual age in both thought and action. After all, school teachers cannot take care of every student at all times. No one has this ability. Therefore, when personal injury occurs, the proportion of responsibility of the school and the internship unit can only be analyzed on a case-by-case basis. The personal injury accidents between the students discussed here are discussed under the condition that the internship unit is regarded as no fault. The civil liability for personal injury accidents between students shall be borne by the student himself or the student's guardian in proportion according to the principle of fair liability and fault liability in accordance with the standard of general personal injury compensation. Article 8 of the measures for handling student injury accidents promulgated by the Ministry of Education stipulates: "for student injury accidents caused by the fault of schools, students or other relevant parties, the relevant parties shall bear corresponding responsibilities according to the proportion of the degree of fault of their acts and the causal relationship between them and the consequences of the damage. The behavior of the parties is the main cause of the damage and should bear the main responsibility; the behavior of the parties is the non-main cause of the damage and should bear the corresponding responsibility." Obviously, the principle of fault liability in civil law is adopted in the principle of liability attribution. Personal injury between (II) intern students and internship units Since students are actually under the control and management of the internship unit during the internship process, the school where the students are located can generally only discover and deal with the problems in the student internship in a timely manner through the regular internship inspection system and daily communication with the students., And strengthen the education and guidance of professional ethics and skills theory for students. In addition, it is difficult for schools to take other effective control measures to prevent life injury accidents that may occur during the internship. Therefore, it is unreasonable to require the school to bear the liability for personal injury caused by the internship in the enterprise. However, some scholars believe that "as the teacher, guardian and conductor of internship activities, the school should foresee the inevitable and possible risks of interns in the internship work, and should bear the corresponding legal responsibility. The employer, as the provider of labor conditions for interns, the director of the arrangement of labor work and the winner of a certain degree of labor results, shall provide the interns with safe and hygienic working conditions in accordance with the provisions of the state, and shall bear the corresponding legal responsibility when the interns are injured in their work. In the absence of clear legal provisions, schools and employers should bear joint and several liability for interns. According to this view, the school's responsibility for the personal injury of the intern student is close to no-fault liability, which actually transfers all the risk of personal injury to the student during the internship to the internship unit and the school. According to this idea, internship units will not accept students' internships, and schools will not arrange students to practice outside the school. In this way, it will cause the students in vocational schools and colleges in our country to be more divorced from social practice, and teaching and practice are out of touch. The original intention of the state to encourage students to participate in social practice and improve professional skills through internships or work-study methods will be completely defeated. On June 26, 2007, the Ministry of Education and the Ministry of Finance jointly issued two documents-"Administrative Measures for Work-Study in Higher Education Institutions" and "Administrative Measures for Internship of Secondary Vocational School Students", which provide for the work-study behavior of higher education students. Provisions are made separately for the internship activities of secondary vocational school students. The former requires that the student work-study management service organization must be authorized by the school to sign a legally effective agreement with the employer and the student on behalf of the school. The agreement must clarify the rights and obligations of the school, the employer and the student, and carry out The treatment of accidents for students who work-study activities. The latter stipulates that before vocational school students go to the internship unit for internship, the school, the internship unit and the students themselves or their parents shall sign a written agreement to clarify the responsibilities, rights and obligations of all parties; the school and the internship unit shall purchase accidental injury insurance for the internship students. Related insurance, the specific matters shall be negotiated by the school and the internship unit; during the internship, the compensation for personal injury accidents of students shall be handled according to the Measures for Handling Student Injury Accidents and relevant laws and regulations. The author discusses Whether the internship unit and the student's school should bear the responsibility for the personal injury accident during the internship? How to define the legal responsibility of the two? It has always been the focus of practical controversy. In practice, there are roughly the following treatment modes: (1) Determine the responsibility according to the terms of the internship agreement signed between the internship unit and the school regarding the handling of personal injury accidents suffered by students. However, this model often causes both parties to shirk each other's responsibilities due to unclear agreements and unclear responsibilities, or because one of them is unable to bear the responsibility, which damages the interests of interns. In fact, even if there is a so-called agreement, when the status of the intern student and the employer is not equal, the agreement on the personal injury accident that occurred during the internship may not be beneficial to the intern student. (2) Such risks are addressed through commercial insurance. In November 2009, the Ministry of Education, the Ministry of Finance, and the China Insurance Regulatory Commission jointly issued the ''Notice on the Implementation of Student Internship Liability Insurance in Secondary Vocational Schools'' after more than two years of research. It stipulates that the liability insurance can be charged from the tuition of vocational schools. If a vocational school reaches an agreement with an enterprise, it can also be charged from the cost (fee) of the enterprise, and no additional fees are allowed for students. (3) The risk of personal injury in the course of internship or part-time work is incorporated into the social security system to solve. For example, in 2009, Jiangsu Province stipulated that all full-time undergraduate, Junior College students and graduate students who received general higher education in all kinds of full-time colleges and universities and scientific research institutions in the administrative area of Jiangsu Province, taking the school as a unit, should register college students' insurance participation before October 15 of each year, and go through the formalities with the medical insurance agencies in the overall planning area, Enjoy basic medical insurance benefits from the date of going through the enrollment procedures and paying the insurance fees. The cost of participating in basic medical insurance shall be shared by the government finance and individuals. Yunnan, Sichuan, Chengdu, Shandong, Fujian and other places have also included college students in the local urban residents' medical insurance system. But somehow, the areas that currently implement this measure only include college students in the scope of application, ignoring the more than 2000 million students in secondary vocational schools in my country, which are almost equal to the number of students in colleges and universities. (4) According to the relevant provisions of the "Measures for Handling Student Injury Accidents" (hereinafter referred to as the "Measures") promulgated by the Ministry of Education in 2002. According to Article 2 of the "Measures", the provisions of the Measures shall apply to the handling of accidents that cause personal injury to students in school during off-campus activities organized by the school. Therefore, the internship activities organized by secondary vocational schools for students in enterprises and the activities of engineering students organized by colleges and universities to study in enterprises for one year to complete the graduation design, in the event of personal injury accidents, the relevant provisions of the measures should be applied. (5) Through the identification of school students in the enterprise internship when their status is a special worker, the internship in the process of personal injury accidents, such as constitute a work injury, according to law to enjoy the treatment of industrial injury insurance. (6) Article 61 of the "Trial Measures for Work Injury Insurance for Enterprise Employees" promulgated by the former Ministry of Labor in 1996 stipulates: "If a work injury accident occurs to a student of a college, technical school, or vocational Senior high school who has an internship in an enterprise participating in work injury insurance, the local work injury insurance agency may refer to the relevant treatment standards of these Measures. The work injury insurance agency does not charge insurance fees from the relevant schools and enterprises." Incorporating the personal injury risks that may arise from school students' internships or part-time jobs in enterprises into the country's uncompleted social security system at the time, reducing the burden on schools and internship units, and reflecting the country's emphasis on the training of reserve labor, and the importance of college students and vocational schools. Students' theory is linked with practice, and school learning and enterprises' labor demand are smoothly connected. However, this provision was repealed by the "Regulations on Industrial Injury Insurance" promulgated by the State Council in 2003, and there is no separate provision for this, nor is the reason for the repeal. Nevertheless, some local governments in our country still follow these regulations. For example, the regulations on work-study activities for students of ordinary colleges and universities in Beijing also stipulates that for students who have work-related injuries in the course of work-study work, the employer shall pay a one-time fee in accordance with the relevant provisions of work-related injury insurance.
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As we all know, the media has the social function of educating the masses. For minors who are still in the stage of mental development, compared with other media and content forms, the mimicry environment created by audio-visual news programs produced or reproduced by audio-visual media has a more significant impact on minors' understanding of the world and the formation of their own values. As a result, audio-visual media organizations shoulder the important social responsibility of protecting minors, and should abide by the principles and provisions of laws and regulations such as the Convention on the Rights of the Child and the Law on the Protection of minors, and regulate their own news reporting behavior. On October 17, 2020, China's Law on the Protection of Minors completed its third revision since its enactment in 1991, and the revised "New Uninsured Law" came into effect on June 1, 2021. Article 49 of the new uninsured law provides for the first time the principle of news media reporting incidents involving minors. The "Opinions of the Leading Group for the Protection of Minors of the State Council on Strengthening the Protection of Minors" issued on June 8, 2021 also proposed to further regulate the news media's publicity and reporting of hot events involving minors. Based on the Convention on the Rights of the Child and the relevant provisions of the new uninsured law, this paper analyzes the reporting principles established in Article 49, and analyzes the problems existing in the previous news reports of audio-visual media organizations in the light of relevant examples that have occurred in recent years, and discusses the path of implementing these principles in the future. An understanding of the principle of "objectivity", "prudence" and "moderation" in news media reports involving minors. 1. Definition of news reports of "incidents involving minors" Article 49 of the new uninsured law uses the expression "news media interviews and reports involving minors", but does not specify its specific scope. According to the interpretation of the text, it should belong to the narrow sense of minor news reports, that is, news reports with minors as the main characters (or directly related to minors). However, if interpreted in accordance with the purpose most conducive to the protection of minors, the use of generalized juvenile news reporting can also be established or at least as a future goal. The so-called general news reports of minors refer to the news reports directly or indirectly related to minors made by the media. The so-called "indirect connection" refers to the fact that although there are no direct minors or topics directly related to minors in news reports, they are related or potentially related to the rights and interests of minors. 2. The basic meaning of the principle of "objectivity", "prudence" and "moderation" According to the interpretation of the Social Law Office of the Legal Work Committee of the Standing Committee of the National People's Congress, "objectivity" in Article 49 of the new uninsured law means that when reporting incidents involving minors, it should be fully investigated and understood to ensure the authenticity of the reported incidents., Objectivity, avoid adding subjective inferences to the report. The so-called "prudence" means that the topic, conception, publication or push of news should be carefully and carefully demonstrated to analyze the social concern that the report may cause and its impact on the minors involved. The so-called "moderate" means that the media should not excessively pursue comprehensive truth when reporting incidents involving minors, but should have certain scales and boundaries to prevent the reputation, privacy and privacy of minors due to the excessive excavation of event information by the news media. Other legitimate rights and interests have been violated. On the whole, the principle of "prudence" and the principle of "moderation" are the special requirements of the new uninsured law for the news reports of minors, especially the requirements of the principle of "moderation" are more specific, which are related to other parts of the new uninsured law. The special protection of adults echoes each other. 3. The factual basis of the principles of "objectivity", "prudence" and "moderation" Article 49 of the new uninsured law is a new provision in this amendment. The reason for the addition of this clause, as stated by the Social Law Office of the Legal Work Committee of the Standing Committee of the National People's Congress, an important practical reason is that in recent years, news media have violated the rights of minors due to reporting behaviors. According to the author's observation, the problems existing in the general news reports of minors before the amendment of the law can be roughly divided into three types according to the specific performance: First, in news reports directly involving minors, they have repeatedly broken through the bottom line of reporting set by law. A typical example is that in the report of Li's rape case in 2013, audio-visual media flocked to report his real name, photo, growth experience and other personal information, which seriously violated the provisions of the law on uninsured and the law on the prevention of juvenile delinquency at that time, which prohibited the disclosure of juvenile related personal information in juvenile delinquency cases. Second, there is often a lack of necessary restrictions and treatment when carrying out news reports involving violence, sex, terror and other news reports that may have adverse effects on minors. For example, also in 2013, online big V Xue Manzi was arrested by the police on suspicion of whoring and gathering people for fornication. When a TV station reported the news incident, it lacked awareness of the protection of minors and reported the details of the police's interrogation of Xue Manzi and prostitutes without necessary treatment. Third, the lack of recognition and respect for the independent personality of minors. In 2011, many audio-visual media reported on the 13-year-old "five bars" teenager Huang Moumou, describing him as a "gifted child" with great political literacy ". This kind of report obviously does not respect the main personality that minors should have, and alienates them into so-called "gifted" officials "children, which leads to subsequent online accusations, abuse and human flesh searches. Even his graduation from Wuhan University in 2020 is still pursued and reported by many media. 4. International convention basis for the principle of "objectivity", "prudence" and "moderation" The Convention on the Rights of the Child, which my country has joined and ratified, also has some requirements for the status and behavioral norms of the news media in the protection of minors. For example, article 17 (Access to information; mass media) of the Convention states: "States Parties recognize the important role of the mass media and shall ensure that children have access to information and material from a variety of national and international sources, in particular those aimed at the promotion of their social, spiritual and moral well-being and physical and mental health, and to this end, states parties should:(A) encourage the mass media to disseminate information and material of social and cultural benefit to the child in the spirit of article 29; ...... (E) encourage the development of appropriate guidelines, in accordance with articles 13 and 18, to protect the child from information and material that may be detrimental to his or her well-being." It can be seen that the Convention clearly stipulates the social responsibility of the media to protect minors, and there are corresponding requirements in the provision of content and the formulation of codes of conduct, which are the basis of the international convention of Article 49 of China's uninsured law. The principle of "objectivity", "prudence" and "moderation" should be based on the basic principle of "most beneficial to minors" Article 4 of the new uninsured law supplements the principle of "most beneficial to minors" on the basis of Article 5 of the original uninsured law, that is, in the process of protecting the personal rights, property rights and other legitimate rights and interests of minors, it is necessary to weigh various factors, choose the plan that is most beneficial to minors, and take the measures that are most beneficial to minors, To maximize the interests of minors. The Social Law Office of the Legal Work Committee of the Standing Committee of the National People's Congress also pointed out that the principle of being most beneficial to minors is consistent with the inherent spirit of the "principle of maximizing children's interests" stipulated in the Convention on the Rights of the Child. The "best interests of the child" in the Convention on the Rights of the Child is regarded as the basic theoretical premise of all conventions, the first principle of the convention to protect minors, the programmatic basis of children's legislation, administration and justice in all countries of the world, and the highest rule of behavior for people to deal with children's affairs. The principle of the best interests of the child is embodied in article 3, paragraph 1, of the Convention on the Rights of the Child, which states: "The best interests of the child shall be a primary consideration in all acts concerning children, whether committed by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (primary consideration)." The new uninsured law clearly establishes the principle of "the most beneficial to minors", which is equivalent to the "principle of the best interests of children" in the Convention, as the basic principle, which reflects the responsible attitude of China to actively fulfill the obligations of international conventions. The whole new uninsured law (including Article 49, of course) should abide by this basic principle and play its commanding and guiding function. When the audio-visual media reports on incidents involving minors, they should always put the most beneficial to minors above the principles of "objectivity", "prudence" and "moderation". They should not only respect their status of "one vote veto", but also pay attention to the original interpretation function of their "first principle". When the specific principles conflict with each other or are difficult to choose, the basic principles most beneficial to minors should be taken as the understanding and application standard. For example, on April 13, 2021, an appalling incident in Shenyang, Liaoning Province, in which a minor man and a woman were beaten and forced to have sex, was reported by the audio-visual media. When reporting, some media not only quoted the Shenyang police's "Police Information Bulletin", but also described some "heinous" plots in detail, and some even added videos circulated on the Internet to the report. These reports are generally "objective and true", and some of them basically meet the requirements of "prudence", but most reports are difficult to meet the requirements of "moderation", and even more difficult to meet the basic principle of "most beneficial to minors. Such a report is not only not conducive to the protection of the injured minors, but also detrimental to the necessary protection of the injured minors, which should be corrected. The principles of "objectivity", "prudence" and "moderation" should be implemented through the guidelines for audio-visual media news reporting. In addition to the basic principle of "most beneficial to minors", the principles of "objectivity", "prudence" and "moderation" in Article 49 of the new uninsured law should be further refined in practice to promote its use in audio-visual media. Effective application in news reporting work. One of the feasible ways is to formulate unified news reporting guidelines for minors in audio-visual media by relevant audio-visual media industry associations. At present, my country's relatively specific guidelines for news reports on minors in the audio-visual media are the "Convention on Self-Discipline in TV Propaganda Work for Minors" drafted and formulated by the China Radio and Television Association. The self-regulatory convention, which entered into force on 1 June 2007, has demonstrated a high standard and is relatively specific and enforceable. In the current era of media integration and for a period of time in the future, in response to the dramatic changes in the audio-visual media landscape, it is necessary to follow the principles established by the new uninsured law, compare the successful experience of Western developed countries and my country's Hong Kong and Taiwan, and combine the characteristics of my country's news management. Referring to the research results of scholars, starting from the positive (goal to be achieved) and negative (problem to be overcome), develop a new era of specific and enforceable guidelines for news reporting by minors in audio-visual media. As the theoretical basis for the construction of news reporting guidelines, in addition to the basic principle of "most beneficial to minors" emphasized in this article, there are several issues that need to be clarified. First, the adult audience's right to know news should be appropriately restricted due to the protection of minors' rights and interests. Of course, while considering the best interests of minors, the audio-visual media can take a variety of methods to ensure the right of adults to know, such as adjusting the broadcast time and network layout of certain news, producing different news versions, and so on, so as to achieve a balance between the rights and interests of the two. Second, gradually realize the production and broadcasting of classified audio-visual news programs. In terms of production, it can be divided into two categories: "news program production for underage audiences" and "news program production for general audiences and specialized audiences. In terms of broadcasting, the first type of programs should be encouraged to broadcast, and full consideration should be given to the broadcast time and the network page to ensure the communication effect. The second category of programs should gradually establish specific systems such as a broadcast restriction system, a live news report restriction system, a special information prompt system, a system for audio-visual media linking to third-party websites, a process for editing and publishing articles on mobile network news platforms, and news release by social media. Third, after formulating the guidelines for news reporting of minors in audio-visual media, efforts should be made to strengthen the implementation. It is recommended to establish an appropriate monitoring body for the implementation of news reporting guidelines, give news reporting guidelines a certain degree of mandatory binding force, clarify the penalties for violating news reporting guidelines, and focus on strengthening the supervision of audio-visual media news information services established by non-news units. Conclusion On December 29, 2021, China will celebrate the 30th anniversary of the ratification of the Convention on the Rights of the Child by the Standing Committee of the National People's Congress. "We the Children: End-decade review of the follow-up to the World Summit for Children", considered by the United Nations General Assembly at its twenty-seventh special session, begins with the statement "We are all once children. We all want the happiness of our children, which has been and will continue to be the most universally cherished aspiration of humankind." In the protection of minors, audiovisual media organizations have a special status and a great responsibility. The principles of "objectivity", "prudence" and "moderation" established in Article 49 of the new uninsured law, if they can "comply with the basic principles that are most beneficial to minors, supplemented by the specific guidelines for audio-visual media news reports", they will definitely There has been a qualitative leap in the reporting of incidents involving minors. In the broad field of juvenile news reports, it will also gradually improve professional standards. In this way, it is not only conducive to the protection of minors, but also conducive to promoting the whole society to respect the subject personality of minors, and ultimately realize the best interests of minors.
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Introduction On November 8, 2021, the Shenzhen Intermediate People's Court delivered a personal bankruptcy liquidation ruling (2021) Yue 03 Breaking No. 417 (11) to Hu, the country's first legal sense of the "natural person bankrupt" appeared. For personal bankruptcy, some people may have questions, this "Laolai" for a long time not to return the property, to promote the personal bankruptcy system, is not to protect these "Laolai" reasonable legal not to pay back the money? In this paper, the author from how to better balance the interests of the debtor and creditors to explore the personal bankruptcy system, in order to give readers some inspiration. Text The background of the development of the 1. personal bankruptcy system. In 2007, when China's bankruptcy law was introduced, it did not set up a personal bankruptcy system, because the banking system, legal framework and other supporting facilities were not sound enough, and the time for the establishment of a personal bankruptcy system was not mature enough. On June 15, 2017, the Supreme People's Court responded to Pan Dingxin's proposal to establish and implement a personal bankruptcy system: "The establishment and implementation of a personal bankruptcy system will help individuals or families in serious financial difficulties to pass personal bankruptcy procedures in accordance with the law., Exempt certain debts, so that they can re-achieve normal production and life through hard work. Thus, the personal bankruptcy regime has a more important protective effect on individuals or families in serious financial distress." "However, the personal bankruptcy system involves many factors such as the establishment and improvement of the personal credit system and the further development of the commercialization or marketization of commercial banks. At the same time, the implementation of the personal bankruptcy system requires legislation by the National People's Congress or its Standing Committee. We believe that with the development and improvement of the socialist market economic system with Chinese characteristics, the National People's Congress or its Standing Committee will formulate the the People's Republic of China bankruptcy law in due course on the basis of summing up the experience in the implementation of the individual enterprise bankruptcy law. The Supreme People's Court will actively cooperate with the relevant state departments to promote the implementation of the personal bankruptcy system." In July 2019, the Supreme People's Court, the National Development and Reform Commission, the People's Bank of China and other 13 units jointly issued the "Accelerating the Improvement of the Market Exit System Reform Plan" clearly proposed to promote the establishment of a natural person bankruptcy system step by step. In February 2019, the Supreme Court announced the Opinions on Deepening Implementation Reform and Improving the Long-term Mechanism for Solving Implementation Difficulties-People's Courts' Implementation Work Outline (2019-2023), which shows that the people's courts will carry out pilot projects with functions equivalent to the personal bankruptcy system. jobs. In August 2019, the General Office of the State Council issued a document requesting the study of the establishment of a personal bankruptcy system, with particular attention to the issue of joint and several liability of natural persons related to corporate bankruptcy. On June 2, 2020, the standing Committee of the Shenzhen Municipal people's Congress issued a document on the public solicitation of opinions on the regulations on personal Bankruptcy in Shenzhen Special Economic Zone (draft for soliciting opinions). The legal work Committee of the standing Committee of the Shenzhen Municipal people's Congress revised and improved the regulations on personal Bankruptcy in Shenzhen Special Economic Zone (draft for soliciting opinions) according to the deliberation opinions. On August 31, 2020, the Standing Committee of the Shenzhen Municipal People's Congress issued the Regulations on Personal Bankruptcy of the Shenzhen Special Economic Zone, which will come into force on March 1, 2021. On December 1, 2020, the Intermediate People's Court of Dongying City, Shandong Province, as the pilot court of the personal bankruptcy system determined by the Shandong Provincial High Court, issued the Implementation Opinions on the Liquidation of Personal Debt (Trial). On December 2, 2020, the Higher People's Court of Zhejiang Province issued the Notice of Guidance (Trial) on the Centralized Liquidation of Personal Debts (Class Personal Bankruptcy) in Zhejiang Courts, providing working guidance for the full exploration of the personal bankruptcy system in the centralized liquidation of personal debts. The 2. personal bankruptcy system is not an umbrella for "old scoundrels". The personal bankruptcy system can not be the umbrella of "Lao Lai", and not all individual debtors can apply for bankruptcy. The standard of debtors in the personal bankruptcy system is "honest and unfortunate debtors". The relevant local laws and regulations and local judicial interpretation documents have made specific provisions for the "honest and unfortunate debtor. Article 2 of the regulations of the Shenzhen Special Economic Zone on personal Bankruptcy stipulates: "if a natural person who has lived in the Shenzhen Special Economic Zone and has participated in Shenzhen social insurance for three consecutive years, if he or she loses the ability to pay off debts or has insufficient assets to pay off all debts due to production, operation and living consumption, bankruptcy liquidation, reorganization or reconciliation may be carried out in accordance with these regulations." Article 9 stipulates that "when the debtor is unable to pay off the debts due, creditors who individually or jointly hold more than 500,000 yuan of due claims against the debtor may apply to the people's court for bankruptcy liquidation of the debtor." The Notice on the Work Guidance (Trial) of Zhejiang Court on Centralized Settlement of Personal Debts (Class Personal Bankruptcy) stipulates that "natural persons with Zhejiang household registration, living in Zhejiang Province and participating in social insurance or paying personal income tax in Zhejiang Province for three consecutive years cannot pay off their due debts, and their assets are insufficient to pay off all debts or obviously lack solvency. They may apply for centralized liquidation of personal debts in accordance with these guidelines. Individual industrial and commercial households may refer to these guidelines for debt centralized liquidation." Article 3 of the Opinions on the Implementation of Personal Debt Liquidation (Trial) issued by the Intermediate People's Court of Dongying City, Shandong Province, stipulates that "a natural person who lives in the jurisdiction of Dongying City, whose assets are insufficient to pay off all debts or who obviously lacks solvency, and who meets one of the following conditions, may carry out debt liquidation in accordance with this opinion: (1) A natural person who has entered bankruptcy proceedings or has gone bankrupt and provided guarantee liability for the liabilities for the corporate; (II) natural persons who are unable to pay off their due debts due to difficulties in production and business activities and cannot be executed by the compulsory execution procedures of the people's court; (III) other natural persons whose personal debts are deemed necessary by the people's court. The above-mentioned debtors shall be in good faith from beginning to end in the proceedings of trial, arbitration, enforcement and personal debt liquidation, and there shall be no acts of evading debts in the name of personal debt liquidation, and there shall be no other acts of dishonesty that may affect their ability to perform. The spouse of the above-mentioned debtor may also apply for debt liquidation in accordance with this Opinion." Article 5 stipulates: "In addition to the circumstances specified in Article 3 of this opinion, the debtor shall also meet the following conditions: (1) Both the debtor and his spouse have made a comprehensive and truthful property declaration; (II) the debtor's spouse agrees to accept the people's court The investigation of its property situation, including the investigation of its bank flow for a certain number of years as appropriate; the adult immediate family members or other family members of the applicant for personal debt liquidation may agree to cooperate with the property investigation when necessary; the (III) debtor undertakes in writing not to carry out the high consumption and non necessary consumption behaviors prohibited by Article 3 of the provisions of the Supreme People's Court on restricting the high consumption and related consumption of the person subject to execution; The debts applied for liquidation by the (IV) debtor are not labor debts." As the review body of personal bankruptcy, the court must abide by the principle of prudence and strictness, and set strict application conditions from the beginning, so as to cut off some people's ideas of opportunity and prevent debtors from using the personal bankruptcy system for illegal purposes. For example, the Intermediate People's Court of Guangdong Province is hearing the case of (2021) Yue 03 Po Shen No. 217 (6). The court reviewed that Li and his ex-wife formed a joint debt. After the divorce, Li borrowed excessively in his own name, returned the joint debt of the husband and wife, and applied for personal bankruptcy liquidation for the new debt. The court ruled that it would not accept the application. 3. personal bankruptcy system will guard the creditor's "money bag" (I) creditors should hold on to property interests from the source For the creditors of financial institutions, they have a sound financial lending system and set up a model threshold for lenders. Information on the debtor's assets can be queried, or the debtor can be required to provide the appropriate mortgage security, and in the event of a situation where the lender is unable to return it, the financial institution can rely on the assets secured by the mortgage to be paid in priority. For creditors of companies, enterprises or natural persons, it is necessary to keep in mind the risk awareness when lending, whether there is a risk of not getting back the creditor's rights. Although due diligence cannot be fully done, risk prevention should also be done when lending. The first is to clarify the asset status of the debtor (lender) and whether it has the ability to repay. Second, it is best to require the debtor to provide corresponding guarantees or guarantees, especially large loans must be very cautious. Third, the general loan between natural persons, it is important to write down the contents of the loan agreement, the debtor's relevant information, the payment of the account and other information. If necessary, a lawyer may be asked to conduct due diligence on the debtor or to review the loan agreement. (II) in the personal bankruptcy system, how to protect the interests of creditors? Although the personal bankruptcy system provides an opportunity for those "honest and unfortunate debtors" to be reborn, creditors cede part of the property interests and give debtors a chance to re-develop and survive. For creditors, it is also an opportunity to help realize the collective settlement of creditors, put an end to individual settlement, and ensure that mortgage claims have the right of priority payment, and ordinary creditors can pay off in proportion. For creditors, the existing provisions are as follows: Article 16 of the Regulations of the Shenzhen Special Economic Zone on Personal Bankruptcy stipulates: "Within 15 days from the date on which the people's court discloses the bankruptcy application, creditors may, individually or jointly, recommend to the people's court the candidate for the bankruptcy administrator (hereinafter referred to as the administrator)." Article 17 stipulates that "if the people's court agrees to the candidate of the administrator recommend by the creditors, it shall make a decision to appoint the administrator at the same time when it decides to accept the bankruptcy application. The expenses of the administrator for the performance of his duties shall be paid in advance by the person who recommended him. If several creditors recommend different candidates for the administrator, the people's court may appoint one or more administrators from among them." The notice of Zhejiang court on the work guidance of centralized liquidation of personal debts (similar personal bankruptcy) (for Trial Implementation) stipulates that "in the centralized liquidation of personal debts, social intermediary institutions and their practicing lawyers, practicing certified public accountants, or public administrators of government departments may be appointed to act as managers of centralized liquidation of personal debts. It is also possible for creditors and debtors to jointly negotiate the selection of administrators among the institutions listed on the roster and their practicing lawyers, practicing certified public accountants, or public officials in government departments." Therefore, creditors in the personal bankruptcy stage, carefully choose the recommend manager is also a very important thing. In addition, creditors should actively exercise their rights at the stage of personal bankruptcy or when the people's court accepts an application for liquidation of personal debts. Mainly reflected in the following aspects: (1) Timely declaration of claims; (2) Participation in creditors' meetings; (3) the exercise of the right to vote of creditors; (4) Supervision of the work of the administrator. The author summarizes Although there are a large number of individuals who are "insolvent and unable to pay off personal debts", the corresponding number of creditors is even larger, and the history of market economy in China is still short, social integrity is not ideal, and there are many phenomena of fraud and debt evasion. therefore, when appropriately protecting "honest and unfortunate debtors", more efforts should be made to protect "kind and unfortunate creditors". Personal bankruptcy system only close to the national conditions and balance the interests of both sides of the debt, in order to achieve the release of private or personal economy from the economic point of view to speed up the improvement of the market subject exit system reform, from the judicial point of view to solve a large number of "zombie cases" can not be implemented to improve the judicial efficiency of the establishment of the purpose. Finally, the author quotes a sentence from Liao Huihui scholar: "In the pilot implementation of the personal bankruptcy system, the protection of the interests of creditors should be increased, the interests of debtors should be appropriately protected, and the fraud of the personal bankruptcy system should be prevented."
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Viewpoint... Discussion on the protection system of the company's shareholders' right to know.
Foreword The corporate governance structure regulated by China's Company Law implements the principle of capital majority decision, and the majority shareholder obtains control of the company through the more capital it invests, which in itself conforms to the principle of consistency of rights and obligations. Under this system, some shareholders, especially small and medium-sized shareholders, are in a weak position of information asymmetry because they do not directly participate in the operation and management of the company, so China's Company Law provides for the protection of shareholders' right to know. The following author tries to analyze the protection and improvement of shareholders' right to know. Text The right of shareholders to know refers to the right of shareholders to know and understand the important information of the company's business situation, and some scholars have defined the right to know as "the right of shareholders to obtain the company's information and understand the company's situation". The author believes that the shareholders' right to know should include the following aspects. Shareholders' right of inspection Article 33 of China's Company Law stipulates that shareholders shall have the right to consult and copy the articles of association, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the supervisory board and the financial and accounting reports. Shareholders may request access to the accounting books of the company. If a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose and may damage the legitimate interests of the company, it may refuse to provide access, and shall reply to the shareholders in writing within 15 days from the date of the written request of the shareholders and explain the reasons. If the company refuses to provide inspection, the shareholder may request the people's court to require the company to provide inspection. Article 97 Shareholders shall have the right to consult the articles of association, the register of shareholders, the stubs of corporate bonds, the minutes of the general meeting of shareholders, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports, and to make suggestions or inquiries about the operation of the company. The Company Law provides for the right of informed inspection of shareholders of limited liability companies and shareholders of limited liability companies, respectively. However, the author thinks that the company law is not very clear about the shareholders' right of access, and there are differences in the actual treatment. Shareholders' right to question and the board's duty to explain The right of shareholders to question is the right of shareholders to question and ask questions to the management of the company on issues related to matters considered at the general meeting of shareholders in accordance with legal procedures, and the management of the company is obliged to explain and answer questions to shareholders' questions. The setting of the right of inquiry can reduce the information asymmetry between the small and medium-sized shareholders of the company and the management of the company, so that the shareholders can make up for the lack of information by asking questions, and to a certain extent form the supervision and checks and balances of the management of the company. The scope of the content of the right to question is not stipulated in our company law. In this regard, national legislation generally provides in a general manner that shareholders can only exercise the right to question on specific matters and is limited to matters related to the subject of the general meeting of shareholders. The author believes that the scope of matters to be questioned by shareholders should be limited as the scope of the company's affairs is extremely wide, and if shareholders are allowed to question matters related to or unrelated to the issues of the general meeting of shareholders, it will easily lead to the abuse of shareholders' rights to the detriment of the company and the interests of shareholders. The Company Law does not specify whether the subject of the exercise of the right to question shareholders is limited to shareholders present at the general meeting or includes all shareholders of the company who are not present at the general meeting, whether it is limited to voting shareholders or includes non-voting shareholders. The author believes that shareholders who do not attend the general meeting of shareholders can still exercise the right of inquiry, but only through the agent to exercise this right, the agent should submit a power of attorney to the company when exercising the right of inquiry. As to whether non-voting shareholders can exercise the right of inquiry, since the exercise of the right of inquiry will not lead to the leakage of confidential information of the company, there should be no restriction on the qualification of shareholders to exercise their right of claim. As long as they have the status of shareholders of the company, regardless of the proportion of shares held or the length of time held, whether they are voting shareholders or non-voting shareholders, they can request the board of directors and the board of supervisors of the company to accept inquiries on relevant matters. Company inspector selection system The right to request the selection of inspectors refers to when shareholders have legitimate reasons to suspect that there are major facts in violation of laws, administrative regulations or articles of association in the process of operation and management of the company, or when the operators of the company seriously violate the obligations of loyalty and good management, and damage the interests of the company and shareholders, they have the right to investigate the operation and financial situation of the company through the shareholders' (general) meeting, administrative organs and judicial organs. Compared with the shareholders' right of access and inquiry, the system of selection of inspectors can make up for the lack of professional knowledge of shareholders, and bring targeted factual information to shareholders. Of course, in the process of performing his duties, the inspector shall perform the obligation of confidentiality for the important information of the company he knows. If the company's interests are damaged due to fault, the inspector shall bear the corresponding responsibility, but the consequences arising from the normal performance of his duties shall be exempted from liability. The perfection of the system of shareholders' right to know 1, first of all, the provisions of the shareholders' right to know to refine, for the exercise of shareholders' right to know to get a thorough protection. 2. The shareholders' right to know can be appropriately restricted to prevent individual shareholders from abusing their right to know and infringing on the rights and interests of the company. The author suggests that appropriate restrictions can be imposed on the number of years of shareholder ownership and the proportion of shareholder ownership. 3. Appropriate punitive consequences may be provided for acts that prevent shareholders from properly exercising their right to know. 4, the shareholder's right to know the pre-conditions of litigation. In order to prevent abuse of litigation and to play the role of supervisors and supervisory boards, the company law may provide for the preconditions for the right to know litigation. Before filing a lawsuit, a shareholder shall first submit a written request to the company for a reply from the company's management; if the company's management fails to reply after the expiration of a certain period of time, it shall request to the supervisor or the board of supervisors, and the supervisor or the board of supervisors shall not reply within the time limit before filing a lawsuit. Concluding remarks Although, China's "Company Law" has made great progress in the protection of shareholders' informed rights and interests, so that shareholders' rights and interests can be better protected and relief. However, the real realization of rights and interests will still be troubled by the realistic level, so the author thinks that we should actively learn from the advanced experience of foreign countries and establish a shareholder rights and interests protection system centered on the principle of shareholder equality and guaranteed by the corresponding litigation mechanism.
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Legal provisions Companies Act (I) A40 Where a limited liability company has a board of directors, the shareholders' meeting shall be convened by the board of directors and presided over by the chairman of the board; if the chairman of the board is unable to perform his duties or fails to perform his duties, the vice-chairman shall preside over the meeting; if the vice-chairman is unable to perform his duties or fails to perform his duties, more than half of the directors shall jointly elect a director to preside over the meeting. Where a limited liability company does not have a board of directors, the shareholders' meeting shall be convened and presided over by the executive director. If the board of directors or the executive director is unable to perform or fails to perform the duty of convening the shareholders' meeting, the board of supervisors or the supervisor of the company without the board of supervisors shall convene and preside over the meeting; if the board of supervisors or the supervisor does not convene and preside over the meeting, the shareholders representing more than one tenth of the voting rights may convene and preside over the meeting by themselves. (II) Association Law 1. Companies Act A22 Resolutions made by the shareholders' meeting, the shareholders' meeting or the board of directors of the company in violation of laws or administrative regulations shall be null and void. If the convening procedure or voting method of the shareholders' meeting or the meeting of the board of directors violates laws, administrative regulations or the articles of association of the company, or the content of the resolution violates the articles of association of the company, the shareholders may request the people's court to revoke the resolution within 60 days from the date of the resolution. Where a shareholder brings an action in accordance with the provisions of the preceding paragraph, the people's court may, at the request of the company, require the shareholder to provide a corresponding guarantee. If the company has gone through the change registration in accordance with the resolution of the shareholders' meeting, the shareholders' meeting or the board of directors, after the people's court declares the resolution invalid or revokes the resolution, the company shall apply to the company registration authority to cancel the change registration. 2. (IV) of Provisions of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law A4 If a shareholder's request to revoke the resolution of the shareholders' meeting or the general meeting of shareholders or the board of directors complies with the provisions of Article 22 of the Company Law, the people's court shall support it, but the procedure for convening the meeting or the voting method is only slightly flawed and does not have a substantial impact on the resolution, the people's court shall not support it. case and analysis (I) case 1: the supreme court-Guangxi jinwuyue energy group co., ltd. and Guangxi material reserve co., ltd. confirm the civil judgment of invalid contract dispute retrial [(2019) supreme fa min zai no 35, July 30, 2019] The Supreme People's Court believes that the first paragraph of Article 40 of the the People's Republic of China Company Law stipulates: "A limited liability company shall establish a board of directors, and the shareholders' meeting shall be convened by the board of directors and presided over by the chairman; if the chairman is unable or fails to perform his duties, the vice chairman shall be presided over; if the vice chairman is unable or fails to perform his duties, more than half of the directors shall jointly elect a director to preside, you can have a vice chairman. The method for the selection of the chairman and vice-chairman shall be stipulated in the articles of association of the company"; Article 47 stipulates: "the meeting of the board of directors shall be convened and presided over by the chairman of the board of directors; if the chairman is unable or fails to perform his duties, the vice-chairman shall be convened and presided over by more than half of the directors". As the person in charge of the board of directors, the chairman of the board of directors bears important responsibilities for the overall development, production and operation of the company. Therefore, with reference to the above-mentioned provisions of the the People's Republic of China Company Law, when the chairman is unable to perform his duties for some reason, he should transfer his power or re-election through legal procedures, but not through the overall general authorization of the individual. In this case, when Yuan Jianwei was unable to normally perform his duties as chairman and legal representative due to residential surveillance, he issued a "Power of Attorney" to Ding Haishun without a resolution of the company's shareholders meeting or board of directors, and entrusted him to "Perform the powers of the chairman and legal representative of the material reserve company, keep the company's official seal and carry out company business activities in accordance with the law", the authority of the chairman and legal representative of the company is generally authorized to Ding Haishun, which violates the above-mentioned provisions of the the People's Republic of China Company Law. Ding Haishun cannot obtain the authority of the legal representative and chairman of the material reserve company. The act of signing the "Creditor's Rights Transfer Contract" with the Material Group Company is an unauthorized representative, not the true intention of the Material Reserve Company." Summary 1: In this case, the Supreme Court held that the chairman (executive director) could not transfer the legal obligation to convene and preside over the shareholders' meeting by way of authorization, and the relevant authorization was invalid. (II) Case 2: Shandong High Court-Zhang Wei, Ji Changjian, Jinan Tianjian Construction and Installation Engineering Co., Ltd. and other companies resolution dispute retrial review and trial supervision ruling [(2020) Lu Minshen 5448, August 31, 2020] The Shandong Higher People's Court believes that based on the facts ascertained in this case, the convener of the shareholders meeting of Tianjian Real Estate Company on January 25, 2019 was actually Tianjian Real Estate Company, the company's supervisor and the major shareholder Tianjian Jian'an Company. The convening procedure complies with the law. The moderator of the meeting recorded in the notice of convening an interim shareholders' meeting is not a member of the board of directors or the board of supervisors of Tianjian Real Estate Company, but Jia Mingkai, the legal representative of the major shareholder of Tianjian Real Estate Company. Therefore, in accordance with the relevant provisions of the Company Law, the original effective judgment determined that Tianjian Real Estate Company had certain defects in the organizational procedures of the shareholders' meeting, which was in line with objective facts and judicial guidance. The Supreme People's Court on the application<中华人民共和国公司法>Article 4 of the (IV) on certain issues stipulates: "if a shareholder requests to revoke the resolution of the shareholders' meeting or the general meeting of shareholders or the resolution of the board of directors in accordance with the provisions of paragraph 2 of Article 22 of the Company Law, the people's court shall support it, but if the procedure for convening the meeting or the voting method is only slightly flawed and does not have a substantial impact on the resolution, the people's court shall not support it". The specific circumstances of minor defects are not clearly stipulated in the company law and the relevant judicial interpretations, but in judicial practice, the criterion should be whether the procedural defects lead to the fair participation of the shareholders, the formation of the majority meaning and the access to the information needed for this. In this case, Tianjian Real Estate Company, the company's supervisors and major shareholders jointly issued a notice to inform the company's shareholders 15 days in advance. The applicants Ji Changjian and Zhang Wei received the notice of convening the shareholders' meeting and entrusted their agents to attend the shareholders' meeting and exercised their voting rights. Their channels for obtaining information and expressing their opinions were smooth. Therefore, to sum up, the original effective judgment found that although there were defects in the convening procedure of the shareholders' meeting of Tianjian Real Estate Company on January 25, 2019, it did not prevent shareholders from obtaining the required information and exercising their voting rights. It should be a minor defect, which does not affect the effectiveness of the resolution of the shareholders' meeting, and rejects the applicant's litigation request, which is clear in fact and correct in applicable law. Summary 2: In this case, the specific circumstances of minor defects are not clearly stipulated in the company law and relevant judicial interpretations, but in judicial practice, whether the procedural defects lead to the fair participation of shareholders, the formation of majority meaning and the acquisition of the information needed for this should be the criterion. Only the host is defective and should not be deemed invalid. (III) Case 3: Jinan Intermediate People's Court-Wenzhou Dongtou Yuanyuan Mariculture Co., Ltd. and Jinan Yindu Real Estate Development Co., Ltd. resolved to revoke the second-instance judgment of the dispute [(2019) Lu 01 Min Zhong No. 650, March 14, 2019] Jinan Intermediate People's Court holds that Article 12 of the Articles of Association of Yindu Company stipulates: "The shareholders' meeting shall be convened by the board of directors and presided over by the chairman. If the chairman is unable to perform or fails to perform his duties, a director jointly elected by more than half of the directors shall preside over the meeting." In response, the court believes that according to the above provisions of the company law and the articles of association of yindu company, the failure to preside over the interim shareholders' meeting is not the legal cause and necessary condition for revoking the resolution of the interim shareholders' meeting. The resolution of the interim shareholders' meeting involved states that more than half of the directors of the board of directors elected Huang Songmin as the convener and moderator of the interim shareholders' meeting, and the participating shareholders Qiao Sen Company, Financial Services Company, Kodar Company, Kodar Company, more than half of the shareholders of Yindu Company passed the resolution of the interim shareholders' meeting involved in the case; Teng Yuanfang is not a shareholder of Yindu Company, and he himself did not raise any objection to his failure to preside over the interim shareholders' meeting; and the board of directors of Yindu Company held on the same day of the interim shareholders' meeting formed a resolution to remove Teng Yuanfang from the post of chairman, which was unanimously approved by other directors of Yindu Company except Teng Yuanfang himself, therefore, it is not feasible for Teng Yuanfang to preside over the interim shareholders' meeting. To say the least, even if an interim shareholders' meeting is reconvened, the voting results of the resolutions of the shareholders' meeting will not change based on the existing facts and the voting ratio agreed in the articles of association of Yindu Company. Yuan Yuan Company claims that the convening of the above-mentioned shareholders' meeting and the resolution of the shareholders' meeting infringed upon its rights and interests as a minority shareholder holding 28.3 percent of the shares of Yindu Company, which has no factual and legal basis and is not supported by the Court. Summary 3: In this case, the Jinan Intermediate People's Court believes that the failure to convene a shareholders' meeting in accordance with the Company Law A40 will not affect the effectiveness of the resolution of the shareholders' meeting under the circumstances that there is room for the Articles of Association, the chairman cannot convene normally, and the voting results of the voting ratio orientation will not change. (IV) Case 4: Second Instance of Resolution Dispute between Jinan Intermediate People's Court-Jinan Tianjian Construction and Installation Engineering Co., Ltd. and Zhang Wei and Other Companies [2020 Lu 01 Min Zhong No. 882, April 2, 2020] The Jinan Intermediate People's Court believes that according to Article 40 of the Company Law: "Where a limited liability company establishes a board of directors, the shareholders meeting shall be convened by the board of directors and presided over by the chairman; if the chairman is unable to perform his duties or fails to perform his duties, the vice chairman shall preside over; If the vice chairman is unable to perform his duties or fails to perform his duties, more than half of the directors shall jointly elect a director to preside. Where a limited liability company does not have a board of directors, the shareholders' meeting shall be convened and presided over by the executive director. If the board of directors or the executive director is unable to perform or fails to perform the duty of convening the shareholders' meeting, the board of supervisors or the supervisor of the company without the board of supervisors shall convene and preside over the meeting; if the board of supervisors or the supervisor does not convene and preside over the meeting, the shareholders representing more than one tenth of the voting rights may convene and preside over the meeting on their own". According to the facts ascertained in this case, the convener of the shareholders' meeting of Tianjian Real Estate Company on January 25, 2019 is actually Tianjian Real Estate Company, the company's supervisor and the major shareholder Tianjian Jian'an Company, so the convening procedure of the shareholders' meeting is in line with the above legal provisions. In the notice of convening an interim shareholders' meeting, the actual moderator of the meeting is not a member of the board of directors or the board of supervisors of Tianjian Real Estate Company, but Jia Mingkai, the legal representative of the major shareholders of Tianjian Real Estate Company. Therefore, Tianjian Real Estate Company has certain defects in the organization procedure of the shareholders' meeting. Article 4 of the interpretation IV of the Company Law stipulates: "if the shareholders' request to revoke the resolutions of the shareholders' meeting or the general meeting of shareholders or the board of directors conforms to the provisions of paragraph 2 of Article 22 of the Company Law, the people's court shall support it, but if there are only minor defects in the convening procedure or voting method, and there is no substantial impact on the resolution, The Company Law and its judicial interpretation do not clearly stipulate the specific circumstances of minor defects, in practice, it is possible to determine whether procedural defects will lead to equitable participation by shareholders, the formation of majority meaning and access to the information needed for this. Tianjian Real Estate Company, the company's supervisors and major shareholders jointly issued a notice informing the company's shareholders 15 days in advance. Ji Changjian and Zhang Wei had no objection to the fact that they had received the notice of convening the shareholders' meeting, and entrusted their agents to attend the shareholders' meeting and exercised their voting rights. Their channels for obtaining information and expressing their intentions were smooth. Therefore, to sum up the above analysis, although there are defects in the convening procedure of the shareholders' meeting of Tianjian Real Estate Company on January 25, 2019, it does not prevent shareholders from obtaining the required information and exercising their voting rights, which should be a minor defect and will not affect the effectiveness of the resolution of the shareholders' meeting. Therefore, Ji Changjian and Zhang Wei requested the revocation of the resolution of the shareholders' meeting on the grounds of procedural violations, and the Court did not support it. Summary 4: In this case, Jinan Intermediate People's Court held that under the condition that all shareholders received the notice and sent personnel to attend the shareholders' meeting without raising any objection, the host's inadequacy was a minor defect and did not affect the validity of the resolution of the shareholders' meeting. scholar's point of view (I) "systematic interpretation of procedural defects in shareholders' meeting resolutions" (Jianghai Journal, No. 2, 2019; Peng Zhenming, born in 1963, professor and doctoral supervisor of Hainan University Law School; Wen Changqing, born in 1993, researcher of Financial Law Research Center of Xiamen University) The statutory requirements for presiding over acts are provided for in articles 40 and 10 of the Companies Act. Because of the ambiguity of language expression, it is still doubtful whether it belongs to peremptory norm or arbitrary norm. The moderator plays an important role in maintaining the order of the meeting, controlling the process of the meeting and ensuring the freedom of shareholders to speak and discuss. Violation of the rules of chairmanship specified in the Company Law or the Articles of Association of the Company constitutes a defective chairmanship in the meeting. As the core of collective meeting activities, the host is the key figure to form the democratic discussion atmosphere and organize democratic voting activities. The leading role of the moderator in the proceedings of the meeting directly or indirectly affects the formation of the resolution of the shareholders' meeting. Articles 40 and 101 of China's Company Law clearly stipulate the rules for determining the right to preside over the meeting, and these two provisions do not use the words "should" and "must" and other words embodied as mandatory rules, nor do they have a proviso that the articles of association of the company or all shareholders may agree separately. In fact, the arrangement of the presiding power is the pre-selection of the presiding officer of the meeting by the shareholders collectively, the presiding role of the presiding officer does not necessarily directly affect the meaning of the individual shareholders to vote freely, the control of the order of the meeting does not mean that the result of the voting can be influenced, and the free will of the shareholders is not bound by the meeting procedure. Therefore, the provisions of the articles of association on the right to preside over the meeting have priority over the provisions of articles 40 and 101 of the Company Law. In violation of the provisions of the Company Law or the Articles of Association on the right to preside over the meeting by a person without the right to preside over the meeting constitutes a defect in the right to preside over the meeting. The rules for determining the right to preside as stipulated in the Company Law or the Articles of Association of the Company are the collective pre-approval of the qualifications of the presiding officer of the meeting by the shareholders' meeting. In the process of the shareholders' meeting, a person without the right to preside over the meeting who does not meet the legal or statutory requirements shall preside over the meeting. If all the shareholders present at the meeting do not express any objection to the hosting behavior, it also constitutes the collective recognition of the shareholders' qualification of the host. The identification and confirmation of the collective will of the shareholders' meeting does not constitute an obstacle, so the defect of the right to preside does not constitute a cause affecting the effectiveness of the resolution. On the contrary, if the shareholders participating in the meeting express clear objection to the qualification of the moderator, the defect of the right of hosting will have an impact on the shareholders' sense of identity with the form of the meeting, and then affect the expression of the individual free meaning of shareholders, that is, the identification and confirmation of the collective meaning of the shareholders' meeting constitutes an obstacle, shareholders who express their express disagreement with the qualifications of the presiding officer at the shareholders' meeting shall have the right to apply to the court to revoke the resulting resolution of the shareholders' meeting within the prescribed period of exclusion. (II) Tang Xin's "On the Character of Company Law-Forced Law or Arbitrary Law" ["Chinese Law" No. 1, 2001] and Liu Junhai's "The Art of Balance between Corporate Autonomy and Judicial Intervention: Innovation, Defects and Reinterpretation of" Interpretation IV of Company Law "[" Law Journal "No. 12, 2017] are consistent with the above views. Conclusion The Supreme Court of (I) tends to hold that the Companies Act A40 is an effective compulsion.</中华人民共和国公司法>
2021-11-11
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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. The author mainly discusses the problem of work-related injuries in order to give readers some enlightenment. Text A work-related injury is an injury caused by an accident at work or an occupational disease. The following situations shall be recognized as work-related injuries: 1. Accident injury due to work during working hours and in the workplace; 2. Accident injury due to work-related preparatory or finishing work in the workplace before and after working hours; 3. Accidental injury due to violence and other accidents due to the performance of work duties during working hours and in the workplace; 4. Occupational disease; 5. During the period of going out of work, the person is injured due to work reasons or the whereabouts of the accident are unknown; 6. On the way to and from get off work, the person is injured by a motor vehicle accident; 7. Other circumstances that should be recognized as work-related injuries as stipulated by laws and administrative regulations. Whether interns should be protected by labor law is currently the theory of whether there are two views and affirmative. 1. negation says In this view, the intern is still a student at school, not a worker in the legal sense, and there is no factual or legal labor relationship between him and the internship unit. therefore, under the current legal system, the relationship between the intern and the internship unit is not a labor relationship and is not adjusted by the labor law. The main laws and regulations are based on the second article of the Ministry of Labor's Explanation on Certain Provisions of the the People's Republic of China Labor Law, which stipulates that the scope of application of the labor law to workers includes three aspects:(1) workers in state organs, institutions and social organizations;(2) non-workers in institutions that implement enterprise management;(3) Other workers who establish labor relations with state organs, institutions and social organizations through labor contracts (including employment contracts). In addition, issued by the Ministry of Labor on the implementation of<中华人民共和国劳动法>Article 12 of the opinions on several issues also stipulates that students who use their spare time to work-study programs are not regarded as employment and may not sign labor contracts without establishing labor relations. Therefore, it can be seen that the relevant laws and regulations of our country and the relevant judicial interpretations have made clear provisions on the age, educational background and whether they are included in the scope of employment security, while the interns in school do not have these "conditions for workers". Therefore, internship students cannot be regarded as workers in the sense of the "the People's Republic of China Labor Law". They have no labor relationship with the internship unit, so they do not have the main qualification for work-related injuries during the internship period. In legal practice, this view represents the views of most people, especially the staff of the government labor and social security departments, and some places have made this view clear. For example, Article 17 of the "opinions on the implementation of the regulations on Industrial injury Insurance" made by the Chongqing Municipal Bureau of Labor and Social Security stipulates that the regulations on Industrial injury Insurance are not applicable to retirees employed by employers, students from colleges and universities, technical schools and vocational Senior high school. With regard to this provision, lawyer Zhou Litai, who is famous for his labor lawsuits in China, applied to the Chongqing municipal government to revoke the regulation made by the bureau, but it ended in failure. 2. must say This view holds that interns belong to the legal "labor subject", "contract subject" or "work injury compensation subject", and have labor relations with the employer during the internship and should be adjusted by the labor law. The main reason is: according to the Labor Law and the Law on the implementation of<中华人民共和国劳动法>The "Opinions on Several Issues" stipulates that there are five kinds of people who are not within the norms of the labor law; the first is the national civil servant; the second is the staff of institutions and social organizations that implement the civil service system; the third is rural workers; the fourth is active military personnel; the fifth is family nanny. These five categories of personnel are strictly restricted to not being regulated by the Labor Law, and school interns are not included. According to the third paragraph of Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, work-related injuries that fall within the scope of labor relations and work-related injury insurance adjusted by the Work-related Injury Insurance Regulations shall be handled in accordance with the Work-related Injury Insurance Regulations. Although the "Work-related Injury Insurance Regulations" do not expressly stipulate that interns are "work-related injury compensation subjects", however, the relevant explanatory clauses in the regulations have included this subject. Article 61 of the regulations stipulates: "The employees referred to in these regulations refer to various labor relations (including de facto labor relations) with the employer. Workers in various forms of employment and various periods of employment." The so-called employees or workers of various forms of employment and various periods of employment are the main body in the regulations on Industrial injury Insurance, and interns are naturally included in it. In addition, the de facto labor relationship is particularly emphasized. There is no labor contract between the students who go to the unit for internship and the internship unit, but there is only a labor agreement, but it also forms a de facto labor relationship with the internship unit. Especially for students who are on-the-job internships, the content of their work is not much different from that of regular employees, so the legal provisions will form de facto labor relations as the scope of adjustment. Author's point of view and reasons Article 61 of the "Trial Measures for Industrial Injury Insurance for Enterprise Employees" piloted by the Ministry of Labor on October 1, 1996 once stipulated that "if a casualty accident occurs to a student of a college, technical school, or vocational Senior high school who has an internship in an enterprise participating in industrial injury insurance, the local industrial injury insurance agency may refer to the relevant treatment standards of these Measures and issue a one-time treatment. The industrial injury insurance agency does not charge insurance fees from the relevant schools and enterprises." In other words, the old industrial injury insurance method is to recognize that interns have the main qualification of workers, so they are included in the scope of industrial injury insurance. Before the promulgation of the regulations on industrial injury insurance, interns may refer to the employees of the unit to enjoy the treatment of industrial injury insurance. However, after the implementation of the "Work Injury Insurance Regulations", interns no longer belong to the scope of work injury insurance protection. Because the prerequisite for the identification of work-related injuries is the existence of labor relations, and interns cannot form labor relations with employers because of their student status, and interns cannot participate in work-related injury insurance, so injuries during work cannot be recognized as work-related injuries. However, the intern has formed an employment relationship with the employer, and the intern can require the employer to bear the compensation liability of the employer according to the judicial interpretation of the Supreme Court on personal injury compensation. The dispute is not a labor dispute and is treated as general personal injury compensation. </中华人民共和国劳动法></中华人民共和国劳动法>
2021-11-11
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2021-11
Question raised In September 2019, Company A applied to the court to preserve Company B's $12 million maturity claim against Company A. In January 2020, the court entered into a judgment determining that Company A has a monetary preservation claim of $10 million against Company B. In November 2019, Company B pledged $46 million of its maturing claims on Company A to Company C and registered a pledge of accounts receivable. In March 2020, the court issued a judgment in the case of Company C v. Company B and Company A's accounts receivable pledge dispute, determining that Company C has a secured monetary claim of 40 million yuan against Company B and Company A. After the accounts receivable pledge dispute case entered the enforcement procedure, Company A believed that as a creditor who preserved the monetary creditor's rights, it could not exclude the enforcement of the secured monetary creditor's rights. It was meaningless to file an enforcement objection and an enforcement objection lawsuit, nor could it file a third party's cancellation lawsuit. At the same time, Company A also believes that the judgment of the accounts receivable pledge dispute is correct, and as an outsider, it cannot apply for a retrial of the effective judgment. Therefore, Company A can only object to the court's enforcement action, the enforcement court rejected Company A's objection to stop the enforcement action, and then the higher court rejected Company A's application for reconsideration. As a preservation creditor, can Company A defend its legitimate rights and interests by opposing the effective judgment of another case through a third party's revocation, an outsider's execution of an objection, or an outsider's application for a retrial? Problem reasoning (I) the third person to withdraw the action 1. Whether the preservation creditor is the qualified plaintiff of the third party's revocation. (1) Negative views. The Interpretation and Application of the Minutes of the National Court Civil and Commercial Trial Work Conference published by the People's Court Publishing House in December 2019 on Article 120 of the Minutes of the Conference: Preservation will deprive or restrict the right of ownership, use, income and disposition of the executed person, and at the same time the applicant shall have priority in the distribution of the proceeds from the disposal of the preserved property. The creditor's right to priority payment is not a substantive right to the seized assets. The outsider cannot participate in the original trial litigation in the name of the seizure person, so he or she cannot file an avoidance action in the name of a third party. Supreme People's Court Bulletin Case (2017) Supreme Law Minzong No. 319 Civil Ruling Judgment Summary: According to Article 56 of the Civil Procedure Law, the subject who has the right to bring a lawsuit for revocation by a third party shall be strictly limited to the two categories of third parties with independent claim and without independent claim as stipulated in the first two paragraphs of this article, the subject of the right to bring a third-party revocation action cannot be extended to outsiders with ordinary claims other than the two types of third parties stipulated in Article 56 of the Civil Procedure Law. Ordinary creditors have a certain de facto relationship with the original case in terms of whether the claim can be realized, but this de facto relationship is different from the legal interest. Ordinary creditors do not belong to the third party without independent claim under Article 56, paragraph 2, of the Civil Procedure Law. It can be seen that the Supreme People's Court has strictly limited the plaintiff's qualifications for filing a third-party revocation suit, and generally does not allow ordinary creditors to file a third-party revocation suit, except for the circumstances stipulated in Article 56 of the Civil Procedure Law and Article 120 of the Minutes of the National Court's Civil and Commercial Trial Work Conference. (2) Affirmation of opinion. The article "Judgment Criteria of" Case Handling Results Have Legal Interests with Him "published in the Minutes of the Judges' Meeting of the Second Circuit Court of the Supreme People's Court (Series 2) published by the People's Court Publishing House in April 2021 holds that after the general creditor applies to the court to seize the property of the executed person, the seized property belongs to the property that cannot be disposed of according to the property law and relevant provisions of enforcement, however, due to operational reasons or internal working procedures of the institution, the executed person establishes a mortgage on the seized property and confirms through a mediation letter that others can exercise the mortgage, and the general creditor has a" legal interest "in the case of the executed person and the other person's lawsuit to confirm the mortgage". The latest view of the Supreme People's Court is that there is a conflict of civil rights between the creditor who applies for court preservation of a specific property and the right holder who has other civil rights in the specific property, and there is a legal interest. A third party without an independent claim right to file a third party revocation lawsuit. 2. The preservation creditor is the qualified plaintiff of the third party's revocation. Article 24, paragraph 1, of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Enforcement by People's Courts [2020 Amendment] stipulates: "The transfer, burden of rights or other acts that hinder the execution of the property that has been sealed up, seized or frozen by the person subject to execution shall not be opposed to the person applying for execution." On November 4, 2004, the "Two Highs" judicial database "Understanding and Application of the Provisions of the Supreme People's Court on Seizure, Seizure and Freezing of Property in Civil Execution by People's Courts" interprets Article 26, paragraph 1 (amended to Article 24, paragraph 1, in 2020) of the Provisions: The Provisions have two meanings: First, the executed person transfers, sets mortgage, pledges, leases and other dispositions of the sealed property, the applicant for execution may still request the execution of the property on the basis of the claim contained in the execution basis, without being restricted by the above-mentioned disposition, and there is no need to consider protecting the interests of the counterpart of the disposition. Second, on the premise of not prejudicing the purpose of the seizure and protecting the interests of the executor, in order to protect the security of the transaction, maintain the order of the transaction and promote the transaction, the transfer, setting of burden or other acts that hinder the effect of the seizure by the executor are still valid. The Supreme People's Court's "Understanding and Application of Real Rights in the Civil Code" published by the People's Court Publishing House in July 2020 interprets Item (V) of Article 399 of the Civil Code (Item 5: Property sealed up, detained and supervised according to law shall not be mortgaged) and holds that the mortgage contract signed with the sealed up or detained property as the mortgaged property is still legal and valid, then when the property is movable property, in view of the adversarial registration of movable property mortgage, the mortgage is validly established from the date of the mortgage contract, at which point the question arises as to whether the mortgage takes precedence over the seizure of the claim. If the mortgage is considered to take precedence over the seizure of the claim, the function of the seizure and seizure system will be completely overhead. Therefore, even if it is considered that the mortgage has been established at this time, it cannot take precedence over the seizure and seizure of the claim. In my opinion, after taking protective measures against a particular property, the preservation creditor has a procedural distribution priority over the particular property, and any subsequent disposition of the particular property by the preserved person, even if confirmed by the effective judgment of another case, cannot be opposed to the preservation claim. When the same specific property is burdened with the preservation claim and other civil rights determined by the effective judgment of another case, the effective judgment of another case will inevitably affect the realization of the preservation claim, and there must be a legal interest between the preservation creditor and the effective judgment of another case. Company A's preservation of money claims and Company C's secured money claims are directed to Company B's accounts receivable, the two have a legal interest, Company A as the third party in the dispute over the quality of accounts receivable, is the third party to cancel the lawsuit of the appropriate plaintiff. Of course, whether Company A can finally file a third-party revocation lawsuit depends on whether it meets the relevant conditions stipulated by law and judicial interpretation. (II) Outsiders to Execute Objection 1. The effect of preservation does not mean that the creditor has a substantive right to preserve the property. According to article 24, paragraph 1, of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Enforcement by the People's Court (2020 Amendment), the preservation creditor has priority over the preservation of property, and the priority of this distribution procedure is not a substantive right to the preserved property. The Supreme People's Court's interpretation of Article 120 of the Minutes of the National Court's Civil and Commercial Trial Work Conference also holds that the preservation of the creditor's priority right to compensation is not a substantive right to the preserved property. On July 28, 2020, the first civil court of Shandong high court answered some questions about the trial of the execution objection lawsuit. it was believed that if the outsider filed the execution objection lawsuit to exclude the execution on the grounds of having legal priority such as security right of the execution object and priority compensation right of construction project price, the legal priority only affects the order of compensation and does not belong to the reason of excluding the execution, in general, the outsider should be informed of the resolution through the implementation of the objection review procedure or the allocation scheme objection procedure. 2. The preservation creditor's objection to the execution of the preservation of property and the objection will not be supported by the court. According to Article 24 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by People's Courts (2020 Amendment), the preservation creditor must provide evidence to prove that he has a substantive right to the preserved property and that the right can exclude enforcement. The procedural distribution priority enjoyed by the preservation creditor over the preserved property does not belong to the substantive rights stipulated in Articles 25 and 26 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court (2020 Amendment). The preservation creditor's objection and objection to the execution of the subject matter of the execution of the judgment in another case (preservation of property) will not be supported by the court. Company A, as a preservation creditor, does not enjoy civil substantive rights to Company B's due claims, and cannot file an execution objection and objection to the subject matter of execution, or the execution objection or objection of Company A will not be supported by law. (III) outsiders apply for retrial 1. Relativity of preservation effect. The interpretation of item (V) of article 399 of the civil code in the understanding and application of the real right compilation of the civil code, the interpretation of article 120 of the minutes of the meeting in the understanding and application of the minutes of the national court's civil and commercial trial work, and the article "the validity of the ruling on real estate seizure and the protection of bona fide third parties" in the minutes of the second court of civil trial of the supreme people's court-the court: the effect of preservation is relative, that is, any disposition of the property by the person being preserved shall not be opposed to the applicant for preservation, and shall not be entitled to disposition for the relative. Whether a counterpart who is not entitled to dispose of constitutes a bona fide acquisition under article 311 of the Civil Code (article 106 of the Property Law) depends on whether the preservation decision is publicized. The article "The Effectiveness of Real Estate Seizure Decisions and the Protection of Bona fide Third Parties" in the "Minutes of the Judges' Meeting of the Second Civil Trial Division of the Supreme People's Court-Tracing the Jurisprudence Behind the Decision" holds that the court's adoption of preservation measures on specific property does not ipso facto have the effect against bona fide third parties, unless publicity has been completed. If the preservation is not publicized, the person being preserved shall dispose of the property to be preserved, and the relative may still obtain civil rights in accordance with the system of good faith acquisition. In my opinion, if the preservation ruling has been publicized by posting a seal, public notice, registration or other means sufficient to let others know, there is no question of the good faith of the counterpart when he has no right to dispose of it, and the counterpart cannot obtain civil rights on the basis of the system of good faith acquisition. Conversely, the counterpart may acquire civil rights under the system of good faith acquisition. 2. The preservation creditor may apply for a retrial of another judgment that has not been heard in accordance with the rules of law in good faith. After the preserved person has no right to dispose of the preserved property to the counterparty, if the preserved person or the counterparty sues in another case to determine the relationship of civil rights and obligations between the preserved person and the counterparty, because the case involves the unauthorized disposition of the preserved property, the court In addition to hearing the case in accordance with the demands of the parties, it should also determine the facts and apply the law in accordance with the legal rules obtained in good faith. If the court does not hear the case in accordance with the legal rules obtained in good faith, there is a high possibility that there is an error or partial error in the effective judgment of the other case, and the preservation creditor may consider applying for a retrial of the effective judgment of the other case. Company A applied to the court to preserve Company B's 12 million yuan due creditor's rights to Company A. There was no public announcement, no seal could be posted, and no registration and publicity could be carried out. Company C could not know the fact that the accounts receivable were preserved through the public announcement. According to Article 61, paragraph 2, of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code, Company C shall verify with Company A the authenticity, legality and completeness of Company B's accounts receivable. Company C is not a bona fide third party under Article 311 of the Civil Code (Article 106 of the Property Law) if Company C fails to perform its verification obligations or is informed by Company A that the accounts receivable are preserved, and there may be problems with the dispute over the pledge of accounts receivable not being heard in accordance with the legal rules of bona fide acquisition. If there is a problem with the effective judgment of another case, Company A will have the opportunity to apply for a retrial, but it should meet other conditions stipulated by law and judicial interpretation. Questions for reference Since Company A does not enjoy civil substantive rights to the subject matter of execution, it cannot file an execution objection or objection to the subject matter of execution as an outsider, or the execution objection or objection of Company A will not be supported by law. According to Article 227 of the Civil Procedure Law and Article 423 of the Judicial Interpretation of the Civil Procedure Law, since Company A has not raised any objection to the subject matter of execution, it cannot apply for a retrial of the effective judgment of another case as an outsider. The entry into force of another judgment may be problematic if it is not tried in accordance with the rules of law obtained in good faith. Company A has the opportunity to file an action to revoke the effective judgment of another case as a third party without an independent claim. The third person's right of revocation is one of the paths of the right to relief, whether it works or not is another matter.
2021-11-10
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2021-11
The acts of administrative organs on internal matters made by organizations and individuals with administrative affiliation, or internal procedures in the process of initiating administrative acts or administrative acts, although aimed at external matters, are not administrative acts and are not within the scope of administrative litigation. The only exception is that the above-mentioned internal acts can directly affect citizens, legal persons or other organizations and have an impact on their rights and obligations without the need for administrative acts under certain specific conditions. At this time, the substantive effect of internal behavior is equivalent to administrative behavior. Starting from the legislative purpose of the "the People's Republic of China Administrative Procedure Law" to protect the legitimate rights and interests of citizens, legal persons or other organizations, it should be included in the scope of administrative litigation. Analysis on the Legal Attribute and Effect of (I) Meeting Minutes As a common official document of government agencies, in administrative cases, whether the minutes of government meetings belong to specific administrative acts, whether administrative proceedings can be brought against them, how effective the minutes of meetings can be in specific administration, and whether they can be cited as normative documents are puzzled by a considerable number of administrative staff. In practice, some administrative organs fail to accurately distinguish the differences and differences between the meeting minutes and other administrative documents, and directly apply the meeting minutes to guide and manage relevant administrative affairs, which brings many troubles to judicial practice and the relief of the rights and interests of administrative counterparts, and also violates the principle of administration according to law. Therefore, it is necessary to clarify the legal nature and scope of the minutes of the meeting, and standardize the procedures and processes applicable to the transformation of the matters recorded in the minutes of the meeting. 1. Meaning and characteristics of meeting minutes Item 15 of Article 8 of China's "Regulations on the Handling of Official Documents of Party and Government Organs" (Zhongban Fa [2012] No. 14) stipulates: "The minutes are applicable to recording the main information and agreed matters of the meeting." The minutes of the government meeting are processed and compiled according to the minutes of the government meeting, the meeting documents and other relevant materials. They are documentary documents reflecting the basic situation and spirit of the meeting. They are mainly used to record and convey the meeting situation and agreed matters. 2. Analysis of the legal nature of government meeting minutes (1) The difference between government meeting minutes and abstract administrative actions Abstract administrative act refers to a universally binding administrative act made unilaterally by an administrative subject against an unspecified administrative counterpart. Abstract administrative acts have four forms: administrative regulations, administrative rules, administrative measures, decisions and orders. The minutes of the meeting are abstract, which means that the minutes of the meeting are abstract and concise expressive records of the matters and contents of the meeting, and are not all records that do not fall word by word. The content of a matter recorded in the minutes of the meeting is not the detailed process and final conclusion to solve the specific problem, but only the principles and methods to deal with a specific problem. In terms of the content of the minutes of the meeting, the matters recorded may be subject to certain constraints on unspecified administrative counterparts, or may be subject to certain constraints on specific administrative counterparts, but the minutes of the meeting are not consistent with the four forms of abstract administrative acts in terms of normative, procedural and statutory aspects. Even if some of the matters recorded involve some of the rights and interests of unspecified administrative counterparts, they do not have the characteristics of abstract administrative acts. The relevant departments need to transform the matters in the minutes of the meeting into administrative acts with legal basis in accordance with the law., Can produce legal effect. (2) The minutes of government meetings are not specific administrative acts Specific administrative act refers to the act of taking specific measures against a specific person or thing in the process of administrative management. The content and result of the act will affect the rights and interests of a certain person or organization. Its most prominent feature is the specificity and concretization of the object of the act, which belongs to an individual or organization, or a specific social matter. From the point of view of the content recorded in the minutes of the meeting and its own characteristics, the minutes of the meeting do not have the characteristics of specific administrative acts. The minutes of the meeting are formed by the meeting and are not specific administrative acts. In the process of forming the minutes of the meeting, some specific administrative matters are often discussed, and guiding and principled solutions and methods are produced, which have an impact on the rights and interests of the administrative counterpart on the surface, but in fact it still needs to be transformed by the relevant administrative organs in order to have external effect. (3) The minutes of government meetings are applicable to the internal affairs of administrative organs. In terms of the process of formation, content and scope of application of the minutes of the meeting, the minutes of the meeting are internal, that is, they are only applicable within the administrative organ. As a kind of official document, the minutes of the meeting are applicable to recording the meeting situation and agreed matters, and their internal nature should be clearly defined, that is, they should only be effective within the government organs and should not be effective directly to the outside. If the relevant matters need to be effective to the outside, they should be transformed into other corresponding types of official documents. The contents and matters recorded in the minutes of government meetings are abstract contents condensed and summarized, and their impact on administrative affairs and the rights and interests of administrative counterparts should only be principled, instructive and abstract, and cannot be used as the basis for specific administrative acts or directly applied to administrative counterparts. Therefore, the minutes of the meeting only have legal effect internally, that is, only have corresponding binding force within the administrative organ. (4) The minutes of government meetings need to be transformed for external effectiveness. The minutes of the government meeting do not have direct legal effect to the outside world, and the minutes of the meeting need to be transformed into other official documents. The matters recorded in the minutes of the meeting shall have external effect and may be announced in the form of approval, issuance or forwarding of notices. According to the provisions of the regulations, the issuance of "notices" needs to be sealed and has legal effect. For example, the notice (document number) on the issuance of the * * * meeting minutes is to transform the meeting minutes so that the contents and matters recorded in the meeting minutes have external legal effect. (5) Lack of legal basis for the direct external application of the minutes of government meetings The law does not specify whether the minutes of the meeting can be directly applied. In the absence of legal basis and clear positioning, if it is used directly, it will lead to the situation that illegal application is difficult to protect rights. 3. Exceptions to the litigation nature of the minutes of government meetings On the question of whether the minutes of government meetings are actionable and under what conditions they are met, a large number of judicial decisions of the Supreme People's Court uphold the agreed judicial view that the minutes of government meetings are still actionable if certain conditions are met. Two conditions should be met for justiciability: first, the content of the minutes of the meeting directly relates to the specific rights and obligations of citizens, legal persons or other organizations. In the case of Wang mou et al. v. Shenyang municipal people's government of Liaoning province for the retrial of the performance of the meeting minutes ((2018) supreme law application no 1589), the supreme people's court held that: On the issue of the justiciability of the minutes of the meeting. The first paragraph of Article 2 of the "the People's Republic of China Administrative Litigation Law" stipulates that citizens, legal persons or other organizations that believe that the administrative actions of administrative agencies and their staff infringe upon their lawful rights and interests have the right to file a lawsuit in a people's court in accordance with this law. Item 12 of the first paragraph of Article 12 stipulates that if a citizen, legal person or other organization considers that an administrative organ has infringed upon other legitimate rights and interests such as personal rights and property rights, the people's court shall accept it. It can be seen that the criterion for judging whether an administrative act is actionable is whether the administrative act infringes on the legitimate rights and interests of the relative, that is, the act that has an actual impact on the rights and obligations of the relative belongs to the scope of the case of administrative litigation and is actionable. In this case, the minutes of the meeting were made to resolve the housing shading dispute between Wang and others and the Shenyang Military Region Housing Management Office. They involved the repurchase of houses by shaded households and the approval of new housing planning. The content was clear and specific. After the minutes of the meeting were made, Wang and others stopped petitioning and obstructing the construction of the troops. The units involved in the minutes of the meeting have also carried out part of the work in accordance with the contents of the minutes of the meeting. Therefore, the minutes of the meeting have had a direct impact on the rights and obligations of Wang and others, and are actionable. The Shenyang Municipal Government proposed that the minutes of the meeting were not actionable, and the case did not fall within the scope of administrative litigation. The Supreme People's Court did not support it. In the retrial case of Jiaozuo textile co., ltd. suing Jiaozuo municipal people's government for the minutes of the meeting ((2019) supreme law application no 458), the supreme people's court held that: The minutes of meetings, as internal documents used by administrative organs to record and convey relevant meetings and agreed matters, are internal administrative acts and usually have no legal effect on the outside world, nor do they have a direct impact on the rights and obligations of administrative counterparts. The legal effect of the minutes of the meeting should meet two conditions: first, the contents of the minutes of the meeting directly involve the specific rights and obligations of citizens, legal persons or other organizations. Externalization methods include the administrative organ serving or informing the parties of the minutes of the meeting as an administrative decision, or the administrative organ executing the minutes of the meeting directly, and the parties knowing the contents of the minutes of the meeting in the process of execution, otherwise the minutes of the meeting will not have an externalization effect. The way to externalize the minutes of the meeting should be limited to legitimate channels. If the contents of the minutes of the meeting are known through abnormal channels such as private notification, it does not belong to the official release through legal channels. The minutes of the meeting do not have legal effect to the outside world, nor do they have enforcement power, and do not belong to the scope of administrative litigation. If the minutes of the meeting are transformed into other administrative acts with legal effect, the parties may sue for other administrative acts with legal effect, and the minutes of the meeting do not directly affect the rights and obligations of the parties. Whether the minutes of the [2013] No. 2 meeting, which is sued in this case, can be sued depends on whether it has been externalized and has legal effect to the outside world. Jiaozuo Municipal People's Government said that the minutes of the meeting involved in the case had been delivered to a textile company together with the reply of Jiao Zhengtu [2014] No. 35 on May 30, 2014, but did not provide evidence that the minutes of the meeting involved in the case had been delivered. A textile company is inconsistent and contradictory about the time and way it got the minutes of the meeting involved in the case. Therefore, in the absence of evidence to prove that the minutes of the meeting have been externalized, the original ruling rejected a textile company's prosecution is not improper. Huiyin Company's request for the implementation of land issues and other rights not resolved in the original relocation process may be claimed separately. (II) Enlightenment to the Work of Government Departments Since the minutes of government meetings, as internal documents used by administrative organs to record and convey relevant meetings and agreed matters, are internal administrative acts, they usually have no legal effect on the outside world, nor do they have a direct impact on the rights and obligations of administrative counterparts. However, through a large number of judicial cases of the Supreme People's Court, it can be seen that the minutes of government meetings are still actionable when certain conditions are met. Therefore, official documents that really need to be made in the form of meeting minutes in the work of government departments should be strictly examined and checked to avoid the contents of meeting minutes directly involving the specific rights and obligations of citizens, legal persons or other organizations, and infringing upon other personal rights, property rights and other legitimate rights and interests. If relevant matters need to be externally effective, they should be converted into other corresponding types of official documents.
2021-11-09
08
2021-11
Viewpoint... The nature of employee fund-raising claims in bankruptcy.
At present, the legal nature of the creditor's rights of fund-raising funds for employees of bankrupt enterprises is still a controversial issue. How to correctly handle the issue of fund-raising funds for employees within the scope of the law is an important issue facing the bankruptcy administrator. Based on the historical evolution of laws, regulations and policies, this paper makes a brief analysis of the legal nature of employee fund-raising claims in bankruptcy cases. The relevant provisions of the employee fund-raising as a priority claim in bankruptcy. 1. Article 3 of the 1994 "Notice of the State Council on Issues Related to the Trial Implementation of Bankruptcy of State-owned Enterprises in Certain Cities" (Guo Fa [1994] No. 59) stipulates that "before bankruptcy, the funds borrowed from the employees in order to maintain production and operation shall be treated as the wages owed by the bankrupt enterprise." This provision applies only to pilot cities for enterprises to optimize their capital structure as determined by the State Council. 2. The first paragraph of Article 58 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases (Fa Shi [2002] No. 23) in 2002 stipulates that "the funds owed by the debtor to the employees of the enterprise shall be paid off in accordance with the order stipulated in Item (I), Paragraph 2, Article 37 of the Enterprise Bankruptcy Law, but the high interest portion that violates the law shall not be protected." (Article 37, paragraph 2, of the 1986 the People's Republic of China Enterprise Bankruptcy Law (for trial implementation) stipulates that "after the bankruptcy estate has paid the bankruptcy expenses in priority, it shall be paid off in the following order: (1) the wages and labor insurance expenses owed by the bankrupt enterprise; (II) the taxes owed by the bankrupt enterprise; and (III) the bankruptcy claims.") The judicial interpretation of the employee fund-raising funds are classified as labor claims (also known as employee claims), so it has the attribute of labor claims, that is, as the wages of employees, etc. in the first order of priority over other claims, has become an important basis for employees to claim fund-raising claims as priority claims in the current bankruptcy practice. II. Disputes over the nature of employee fund-raising claims Since the new "Enterprise Bankruptcy Law" implemented on June 1, 2007 and the subsequent three judicial interpretations have not made clear provisions on employee fund-raising claims. After the implementation of the new Enterprise Bankruptcy Law, there are different views in practice on whether the nature of employee fund-raising is recognized as a priority claim by reference to wages or as an ordinary claim. The first view is that employee fund-raising should be recognized as ordinary claims. The reason is that Article 58 of Fa Shi [2002] No. 23 is explained to Article 37 of the Bankruptcy Law (Trial), which has been repealed by the new Enterprise Bankruptcy Law implemented in 2007. The new Enterprise Bankruptcy Law has no provisions on employee fund-raising claims, which shows that employee fund-raising claims are not essentially different from ordinary private loans and should be treated as ordinary bankruptcy claims. Article 12 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (Fa Shi [2015] No. 18), which came into effect on September 1, 2015, clearly stipulates that legal persons or other organizations raise funds from employees through loans within the unit for the production and operation of the unit, and there are no circumstances stipulated in Article 52 of the Contract Law and Article 14 of these Provisions, where the parties claim that the private lending contract is valid, the people's court should support it. This further proves that employee fund-raising claims should be equivalent to ordinary claims of private lending. The second view is that employee fund-raising should be recognized as employee claims. The reason is that although the Bankruptcy Law (Trial) has been abolished, item (I) of paragraph 1 of Article 113 of the new Enterprise Bankruptcy Law is a continuation of item (I) of paragraph 2 of Article 37 of the Bankruptcy Law (Trial), and Fashi [2002]23 is still in force. In addition, from the perspective of maintaining social stability and the vital interests of employees, it is also in line with the original intent of the legislation to pay off the employees' fund-raising claims of bankrupt enterprises as the first order. Therefore, the employee fund-raising funds are settled by reference to the first order. III Tracing the concept of employee fund-raising It is generally believed that employee fund-raising refers to the loan that an enterprise needs to borrow from the employees of the unit for the purpose of production and operation or expansion of production, and the employees provide to the enterprise for the purpose of obtaining interest income. Employee fund-raising belongs to the category of borrowing, but it is different from other fund-raising behaviors in society. It has the characteristics that the lender is the employee of the enterprise, the purpose of borrowing is the production and operation of the enterprise, and the borrowing behavior is limited to the enterprise. This generalization is in line with the contents of Guo Fa [1994] No. 59 and French Interpretation [2015] No. 18, but is this the whole concept of employee fund-raising? What is the origin of employee fund-raising? Fashi [2002] No. 23 only mentions the concept of fund-raising funds for employees but does not give too much explanation. Is it just to unify the handling standards of state-owned enterprises and other enterprises, and to summarize the description of Guofa [1994] No. 59 "in order to maintain production and operation, funds raised from employees", then why is it not quoted in the original text, but a different name? Or does the name already exist? Since Guo Fa [1994] No. 59 provides for the treatment of such claims in bankruptcy, it indicates that the phenomenon of borrowing from employees should have existed before. So where on earth did it come from as a legal concept at first? Why did Fashi [2015] No. 18 put forward separately only to support the validity of the contract? Was it invalid before? Why did Fashi [2002] No. 23 give priority to protection? With these questions, the author explored. In the People's Bank of China, the "Notice on Strengthening the Management of Internal Fund-raising in Enterprises" (Yinfa [1989] No. 21) issued by the People's Bank of China in 1989 to implement the "Notice of the State Council on Strengthening the Management of Internal Bonds" (1989 No. 174), The author discovered the concept of internal fund-raising of enterprises. The notice stipulates that "internal fund-raising of enterprises refers to the behavior of enterprises raising funds from internal employees. Internal fund-raising should generally take the form of issuing internal bonds. When an enterprise conducts internal fund-raising, it must formulate a fund-raising charter or method, and submit it to the People's Bank of China for approval after examination and approval by the enterprise's account-opening financial institution. The monthly report of securities issuance statistics adds an eighth item, 'intra-enterprise fund-raising, 'and so on. In 1999, the Supreme People's Court issued the "Reply on How to Confirm the Effectiveness of Borrowing Acts between Citizens and Enterprises" (Fa Shi [1999] No. 3) [1], which pointed out that enterprises illegally raise funds from employees in the name of loans, enterprises illegally raise funds from society in the name of loans, enterprises issue loans to the public in the name of loans, and other violations of laws and administrative regulations are invalid. Although due to various reasons, the internal fund-raising of enterprises has been strictly controlled and even severely cracked down, the enterprise fund-raising in China has never completely disappeared. Regarding fund-raising, the regulatory authorities are basically in the "three noes" attitude of no approval, no accident, and no accusation, which makes fund-raising widespread "illegal" existence. Article 12 of the judicial interpretation of private lending issued in 2015 is a timely and effective way to fill this legal gap. 4 Legal analysis of employee fund-raising funds. The author thinks that the employee fund-raising as a legal concept has its important characteristics of the times. The employee fund-raising should not be defined according to the interpretation of the text and applied to the current bankruptcy practice, but should adopt historical interpretation and systematic interpretation. The laws and policies of different periods regulate the internal fund-raising of enterprises differently, and the concept of "employee fund-raising" has different connotations in different periods, the nature of fund-raising claims should also change. Yinfa [1989] No. 174 puts forward higher requirements for the legality of enterprise internal fund-raising, which is different from ordinary lending. According to the upper document "Notice of the State Council on Strengthening the Management of Enterprise Internal Bonds" (Guo Fa [1989] No. 21), it can be seen that the original intention of enterprise internal fund-raising is enterprise internal bonds. If an enterprise raises funds from internal employees to meet its strict requirements, it should naturally be protected by a higher level of law. Fashi [1999] No. 3 stipulates that "enterprises illegally raise funds from employees in the name of loans" is invalid, which also confirms that internal fund-raising in accordance with Yinfa [1989] No. 174 should be protected by law. According to the modern legislative system, Yinfa [1989] No. 174 should be a departmental normative document. After the implementation of the Contract Law on October 1, 1999, internal fund-raising in violation of Yinfa [1989] No. 174 should not be deemed as It is invalid, but it is also free from the original conditions of internal fund-raising of enterprises and turns into the characteristics of ordinary private lending relationships, and should not be subject to higher protection. Fashi [2002] No. 23 is still valid [3]. Although the reason for not abolishing it is unknown, it may be explained in a bankruptcy case of a state-owned enterprise that the author once participated in. The state-owned enterprise entered bankruptcy proceedings in 2017. During the liquidation process, it was found that a large number of employee fund-raising funds from the 1980 s to the 1990 s had not been repaid, and relevant approval documents were not found, however, in accordance with the provisions of the judicial interpretation, the administrator gave priority to the settlement of the employee fund-raising funds as labor claims, and neither the creditor nor the debtor raised any objection to this. After the abolition of Yinfa [1989] No. 174 [2], the internal employees of the enterprise voluntarily lend funds for the paid use of the enterprise for the business activities of the enterprise, which is no different in essence from the lending of funds by social personnel and the repayment of principal and interest by the enterprise on schedule. If only the employee status and the condition of the word "fund-raising" on the debit note are different from the non-employee private lending behavior, it is recognized as the employee's claim in bankruptcy, which violates the legislative purpose of the new Enterprise Bankruptcy Law to fairly clean up the creditor's rights and debts and protect the legitimate rights and interests of all creditors. Five conclusions The author believes that under the "three nos" attitude of the regulatory authorities, the definition of employee fund-raising funds should be distinguished by the implementation date of the new "Enterprise Bankruptcy Law. For employee fund-raising claims that occurred before the implementation of the Enterprise Bankruptcy Law on June 1, 2007, in accordance with the laws and regulations at that time, with reference to the wages and labor insurance expenses owed by the bankrupt enterprise, they shall be paid off in the first order; For employee fund-raising claims that occurred after the implementation of the Enterprise Bankruptcy Law on June 1, 2007, private loans should be treated as ordinary claims in principle. Note: [1] Repealed on July 20, 2019, Decision of the Supreme People's Court on Repealing Some Judicial Interpretations (Thirteenth Batch) Law Interpretation [2019] No. 11. [2] Repealed on October 26, 2010, the People's Bank of China, China Banking Regulatory Commission Announcement [2010] No. 15. [3] The national laws and regulations database (npc.gov.cn) is valid, and the last query time is November 8, 2021. References: 1. Du Hongfang's "An Analysis of the Nature of Employees' Fund-raising Claims in Bankruptcy Cases". 2. Zhang Huaxin's Legal Analysis of the Nature of Employee Fund Raising in Bankruptcy Proceedings. 3. Du Wanhua, Editor-in-Chief, Understanding and Application of Judicial Interpretation of Private Lending by the Supreme People's Court, August 2015.
2021-11-08
Zhongcheng Qingtai Jinan Region
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