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2021-10
Recently, the General Office of the Jinan Municipal people's Government issued the measures for the Administration of Collective Construction Land in Jinan (for trial implementation) (JZBF [2021] No. 21, hereinafter referred to as the "measures"). The aim is to further strengthen the management of collective construction land, standardize the examination and approval of the right to the use of collective construction land, prudently promote the entry of collective construction land into the market, and build a unified urban and rural construction land market. This paper attempts to interpret from the following aspects: Drafting background and process The "the People's Republic of China Land Management Law" (hereinafter referred to as the "Land Management Law") implemented on January 1, 2020 clearly stated for the first time the legal requirements for collective operating construction land to enter the market. Article 63 of the "Land Management Law" stipulates: "The overall land use planning, urban and rural planning (land and space planning) are determined as industrial, commercial and other operating uses, and the collective operating construction land is registered in accordance with the law, the owner of the land may hand it over to the unit or individual for use by means of transfer, lease, etc". The "Regulations on the Implementation of the Land Management Law" implemented on September 1, 2021 further refined and clarified the entry of collective operating construction land into the market. At the level of Jinan City, the 2021 "Government Work Report" included "improving the rural collective construction land management system and promoting the entry of collective operating construction land into the market" as a matter of deepening agricultural and rural reform in 2021. At the same time, in order to actively promote the entry of collective operating construction land into the market, Jinan City has also been actively establishing and improving the collective operating construction land management supporting system. In the above context, the Jinan Municipal People's Government closely combined with the actual situation of Jinan City, drafted the "Jinan City Collective Construction Land Management Measures (Trial)", the "Measures" has been by the Jinan Municipal People's Government Office on October 13, 2021 Officially issued, effective from December 1, 2021. Clarify the use scope of collective construction land In order to solve the problems of unclear use scope and weak operability of rural collective construction land in practice, the "Measures" further clearly define the use scope of collective construction land. Article 5 of the measures clearly stipulates the scope of project construction that can use collective construction land, namely: first, villager (resettlement) residential quarters (including supporting facilities); second, public welfare undertakings and public facilities projects; third, industrial storage, commercial, tourism, entertainment and other business projects; fourth, major (key) projects such as indemnificatory public rental housing determined by governments at or above the district and county level; the fifth is the bottom clause, that is, other construction projects that meet the requirements. Further standardize the approval process The second chapter of the measures stipulates the implementation scope, procedures, application materials and approval documents of the examination and approval of the right to the use of collective construction land. Article 8 of the "Measures" stipulates that the scope of examination and approval shall be other collective construction land except for collective business construction land such as industrial storage, commerce, tourism, and entertainment that enter the market in accordance with the law. Article 9 of the "Measures" and the application materials for land use shall be approved by the town government (sub-district office), the district natural resources department, and the district government in turn. Articles 10 and 11 of the measures further clarify the application materials and approval documents under the scope of examination and approval for the implementation of the right to the use of collective construction land. Detailed provisions on the entry of collective operating construction land into the market Chapter III of the measures specifies in detail the relevant concepts, implementation subjects, entry conditions and procedures to be performed for the entry of collective operating construction land into the market. Article 12 and Article 13 of the "Measures" respectively stipulate the concepts of collective operating construction land and collective operating construction land entering the market. Collective operating construction land refers to the collective construction land that is determined by the land space planning (overall land use planning, urban and rural planning) as industrial warehousing, commerce, tourism, entertainment and other operational uses, and the land ownership registration is handled in accordance with the law. The entry of collective business construction land into the market refers to the act that the land owner, through the open land market, hands over the land use right to other units or individuals for use in a certain period of time by means of transfer, lease, capital contribution (shareholding) and other paid means. Among them, the maximum service life of collective construction land shall be implemented with reference to state-owned construction land of similar use; the land lease period shall generally not be less than 5 years, and the maximum shall not exceed 20 years. Article 14 of the measures stipulates that the main body of collective business construction land entering the market is the land owner (collective economic organization), and Article 15 stipulates that the transfer methods of collective business construction land include competitive transfer methods such as bidding, auction and listing, and agreement transfer. Article 18 of the measures also clearly stipulates the conditions that should be met for the entry of collective business construction land into the market. The first is to meet the requirements of national industrial policy, land use, ecological environment protection, etc.; the second is to clarify the source of construction land, land property rights, clear boundary sites, and no ownership disputes; the third is to clean land or above-ground buildings, structures and other attachments The ownership is clear. It should be noted that the state's requirements for state-owned construction land must be "net land" transfer; fourth, it has the basic conditions required for development and construction. Article 22 of the Measures provides more detailed regulations on the procedures that should be performed for the entry of collective operating construction land into the market. In summary, there are mainly the following procedures: First, the main body of the market compiles the land entry plan; second, the land entry plan is submitted to the relevant departments for review; third, if the market is entered by agreement or lease, it needs to be reported to the district government for approval; if the market is sold in a competitive manner, after the corresponding approval, incorporate into the public resource trading platform, uniformly organize the public bidding of land, and the market entry subject issues the market entry transaction announcement as required; fourth, the market entry subject publicizes the land entry result or transfer result in accordance with the regulations; fifth, the market entry subject and the person who has obtained the land use right sign the "Collective Operating Construction Land Use (Lease) Contract". In addition, the right holder who has obtained the right to use collective construction land in accordance with the law can apply to the real estate registration agency in the district for registration of the right to use after paying the land price, related taxes and fees and value-added income. Clearly defined payment standards The Measures also stipulate the standards for the fees that should be paid for the entry of collective construction land into the market. Article 24 of the Measures clarifies that collective business construction land shall pay part of the land value-added income when entering the market, industrial storage land shall pay 20% of the net land income, and commercial service (commercial, tourism, entertainment, etc.) land shall pay 50% of the net land income. The net income from land shall be determined by the district governments with reference to the calculation method of the net income from similar state-owned construction land and in the light of the actual situation. In addition, Article 25 of the "Measures" stipulates that when collective business construction land enters the market, the person who obtains the land use right shall pay deed tax at 3% of the land transaction price. This provision is also a reference to the applicable tax rate for the payment of deed tax on the sale of state-owned land.
2021-10-18
14
2021-10
The raising of the problem In the field of construction projects, the general contractor and the subcontractor agree in the subcontract terms such as "payment according to the progress of the construction unit", "payment according to the proportion after the construction unit's funds arrive", "payment to the subcontractor on the premise of receiving the construction unit's project funds", because the general contractor takes the payment to the employer (construction unit) as the premise of its payment to the subcontractor, such clauses are therefore referred to as "back-to-back" clauses. In this way, the general contractor transfers part of the risk of the construction unit paying for the project to the subcontractor, and for whatever reason, it seems that it can use this as a reason to oppose the subcontractor's payment request before the construction unit fails to pay the project. But how should this provision be applied? Especially in the case that the general contractor neglects to exercise its creditor's rights against the construction unit or the two parties are in a payment impasse due to disputes, how should the subcontractor safeguard its legitimate rights and interests? view of judicial adjudication 1. If the "back-to-back" clause is valid and the agreed conditions for payment are not met, it shall be deemed that the conditions for payment are not met, such as (2020) Supreme Law No. 655: Wu Jikui and Ningbo Construction Engineering (contractor) for the construction of the construction of the internal contract relationship, Wu Jikui to Ningbo Construction Engineering issued a "letter of commitment", confirming that Wu Jikui contracted profit or income to achieve the way for Ningbo Construction Engineering to obtain and Feng Real Estate (contractor) of the 14 sets of housing sales rebates. The "Letter of Commitment" involved in the case agreed to use the 14 sets of housing sales of Hefeng Real Estate as Ningbo Construction to pay Wu Jikui contract profits or income conditions do not have. Although Wu Jikui has the right to claim the contract profit or income from Ningbo Construction Engineering, the conditions for Ningbo Construction Engineering to pay the contract profit or income to Wu Jikui have not yet been fulfilled because the project contractor and Feng Real Estate still owes Ningbo Construction Engineering money. 2. If the "back-to-back" clause is valid and one party fails to perform the relevant obligations, the back-to-back condition may be deemed to have been fulfilled, such as (2020) Supreme Law Minzong Judgment No. 106: The "Subcontract" and supplementary agreement signed by China Construction First Bureau and Qiyue Company are the true intentions of both parties. The content does not violate the mandatory provisions of the law and is legal and effective. The contract has made a "back-to-back" agreement that "the completed project shall be completed with the approval of the employer and the payment shall be audited and settled in advance, and the professional contractor may require the project contractor to make progress payment according to the proportion paid by the employer". as to whether the payment terms have been fulfilled, China construction first bureau proposed that both parties have agreed that China construction first bureau shall not have the payment obligation if Dadong construction fails to pay the project payment. However, the exemption of China Construction First Bureau shall be based on its normal performance of its obligations such as assisting in acceptance, settlement and collection. As the collection obligor of Dadong construction project funds, China Construction First Bureau has not provided valid evidence to prove that it has actively fulfilled the above obligations after the completion of the project involved in the case and before the lawsuit in this case, and has issued a collection, audit, settlement and collection for Dadong construction. On the contrary, the testimony of Fang Mou, a staff member of China Construction First Bureau, confirmed that China Construction First Bureau was negligent in performing its duties, refused the request of Qiyue Company, and never actively claimed rights to Dadong Construction. This situation belongs to the situation in which the parties improperly prevent the achievement of conditions for their own interests in the conditional contract stipulated in Article 45, paragraph 2 of the the People's Republic of China Contract Law, which is regarded as the achievement of conditions, therefore, the claim that the "back-to-back" condition has not been fulfilled and that the China Construction Bureau does not have the obligation to pay is not justified. Corresponding to the above cases, if the contractor does not fail to perform its obligations, it shall comply with the "back-to-back" clause. Such as (2019) Lu 01 Min Zhong No. 10060 involved in the contract agreed that "Party B (subcontractor) on the 25th of each month to report the completion of the project volume and output value of the current month, after Party A (general contractor) audit and confirmation depending on the owner's funds in place to pay Party B in proportion. After the completion of the project, the settlement of the project is audited by the owner, and the payment is made on a pro rata basis according to the availability of the owner's funds until the settlement" The court held that "the 'back-to-back' clause is by nature a conditional contract clause. This clause is a true expression of the meaning of the parties and there are no other factors that cause the clause to be invalid, and it shall be a valid clause. Lucheng Construction Company submitted settlement reports to China Construction Third Bureau Company both before and after the lawsuit, indicating that it actively claimed its rights to China Construction Third Bureau Company and that there was no delay in exercising its rights. In the case that the settlement value between the two parties has not been determined, it is impossible to determine the proportion and amount of the project payment payable by Lucheng Construction Company to Amber Labor Company, so the conditions for the payment of the project payment in dispute are not yet available." 3, the parties only agreed on "back-to-back" payment, as the agreement is not clear, should be in accordance with the law within a reasonable period of time to perform, such as (2021) Beijing 03 Min Zhong No. 7492: The contract stipulates that "the contract between Party A (the general contractor) and Hesheng Company (the owner) shall be attached to the contract, and the payment method shall be paid according to the back-to-back payment method of Party A and Hesheng contract, and it is agreed to accept the construction according to the technical requirements of Party A and Hesheng contract". Although both parties sign the contract and agree to use the back-to-back payment method, the contract is obvious violation of the contract, therefore, it should be determined that both parties to the contract do not know the payment method. In this case, the reasonable performance method of both parties can be determined according to the context of the contract and the relevant provisions of the law. However, since the project involved in the case was accepted and put into use many years ago, Qibaoliang Company filed the lawsuit in this case only after the warranty period of the project involved was exceeded, in view of Tongda Jiyuan Company's failure to submit sufficient evidence to prove that it had raised quality problems with Qibao Liang Company during the warranty period of the project involved, according to the opinions and spirit of relevant judicial interpretations, it should be deemed that the quality of the project involved installed by Qibao Liang Company is qualified, the payment terms have been fulfilled, and Tongda Jiyuan Company should pay the corresponding contract money to Qibao Liang Company. legal analysis Effect and nature of back-to-back clauses in (I) 1. Effect of "back-to-back" clauses There are a few views in judicial practice that deny the effect of "back-to-back" clauses on the grounds that they violate the relativity of the contract or violate the principle of fairness. However, the former confuses the contractual rights and obligations with the terms of payment attached to the contract, arguing that the premise of third-party payment as payment in this contract (subcontract) breaks through the relativity of the contract. The latter analyzes from a realistic point of view, and thinks that the clause obviously puts the subcontractor at a disadvantage and violates the principle of fairness, while ignoring the principle of fairness. It focuses on whether the two parties are in a considerable position at the time of the establishment of the contract. It is true that in the "buyer's market" environment of the contract relationship in the construction market, the subcontractor has realized the legal risks of the clause and has to bear the risks of the clause. Especially in the "A-refers to subcontracting" model, the general contractor is closer to the role of the project management company, the economic benefits in the designated subcontracting project is usually very limited, generally limited to management fees, through the "back-to-back" clause to avoid payment risk, it is understandable. Therefore, there is no case of showing fairness from the perspective of understanding, and even if it is obviously unfair, the legal effect it leads to is not invalid, but revocable. Therefore, there is no factual and legal basis for denying the validity of the "back-to-back" clause on the grounds that it violates the relativity of the contract or is obviously unfair. On the premise that the subcontract is valid, the "back-to-back" clause itself does not violate the mandatory provisions of laws and administrative regulations, and if it belongs to the true intention between the parties rather than the malicious collusion between the contractor and the general contractor to harm the interests of the subcontractor, it shall be a valid clause. Some local high courts clarify their effectiveness through answers and guidance opinions, such as Article 22 of the Beijing Higher People's Court's Answers to Several Difficult Questions in the Trial of Construction Contract Disputes, and the Anhui Higher People's Court on the Trial of Construction (II) Guiding Opinions on Legal Issues Applicable to Construction Contract Disputes. In judicial practice, most of them have recognized its effectiveness, but there are differences in how to apply it. 2. On the nature of the "back-to-back" clause One view is that the "back-to-back" clause is a conditional clause, broadly on the grounds that, from a practical point of view, the owner's payment is not inevitable, the owner's payment is an act for the owner, but an event for the general contractor, and whether the event occurs depends on the will of the owner and is therefore an uncertain fact. Another view is that according to the basic principles of the law and relevant provisions, under the premise of qualified project quality, the construction unit to pay for the project should be a definite fact, only the length of the payment period, which is also in line with the reasonable expectations at the time of the signing of the contract, so tend to "back-to-back" clause as a term clause. There is also a view that the clause is neither conditional nor time-limited, since the conditions and periods of time provided by law are conditions of entry into force, lapse or duration, while the "back-to-back" clause is not a condition of entry into force for payment, but merely an agreement between the parties on the time of payment. The above three views are based on objective facts, the logic of contract performance and the basic provisions of the law, and draw different conclusions about the nature of the "back-to-back" clause, forming a logical vortex. Therefore, in the judgment instrument on how the "back-to-back" clause applies, few instruments will analyze whether the clause is a conditional clause or a term clause, but directly identify it as a conditional clause or an explicit payment term agreement is unclear and then apply its corresponding legal consequences in conjunction with the facts of the case. From this perspective, different determinations about the nature of "back-to-back" clauses will also have different coping ideas and legal applications. The application of law in the case of the validity of the "back-to-back" clause of the (II). On the premise that the subcontract is valid, there are several legal logics in the application of the "back-to-back" clause: first, the agreement of the "back-to-back" clause should be observed under certain circumstances; Second, the general contractor's failure to exercise its rights to the employer to prevent the conditions from being fulfilled is deemed to have been fulfilled. Third, if "back-to-back" is recognized as the payment term, it may be deemed that the agreement is unclear. 1. Under certain circumstances, the subcontractor shall comply with the agreement of the "back-to-back" clause. The "back-to-back" clause belongs to the autonomy of the parties, does not violate the mandatory provisions of laws and administrative regulations, and is legal and effective. However, the "back-to-back" clause cannot be the permanent defense for the general contractor to refuse to pay, and the subcontractor should be bound by the "back-to-back" clause only under certain circumstances. Under the premise of the validity of the subcontract, there should be at least three requirements:(1) The content of the "back-to-back" clause should be clear, and the general contractor should not only agree to pay the subcontractor after the payment on behalf of the employer or the construction unit, instead, the specific proportion and scope of payment should be agreed, because the payment of construction works is generally phased and proportional payment, the general agreement will be regarded as the agreement is unclear. (2) The general contractor does not have the situation of idle exercise of rights, according to the principle of easy control of the near cause of proof, after the payment conditions are available, the general contractor should prove that it has actively claimed claims to the contractor. (3) The "back-to-back" clause can only be a defense for the general contractor within a reasonable period, I .e. within a reasonable period of time after the completion, delivery or expiration of the warranty period, the reasonable period can be determined in combination with the facts of the case. To the extent that all of these conditions are met, it may be tempting to assume that the subcontractor should be bound by the "back-to-back" clause. 2. If the general contractor is idle in claiming claims from the contractor, it shall be deemed that the terms of payment have been fulfilled. There are a large number of cases in judicial decisions that directly identify "back-to-back" clauses as conditional clauses, and the more typical ones include the above-mentioned (2020) Supreme Court Civil Final Judgment No. 106. Although the attached conditions are not the entry into force conditions stipulated by law, according to the interpretation method of "lifting weights to lightness", the entry into force of the contract can still be subject to conditions, and the performance of the contract can also be subject to conditions, the provisions of Article 159 of the Civil Code may be directly applied by analogy, and a conditional civil juristic act is deemed to have been fulfilled where the parties improperly prevent the achievement of the condition for their own benefit. If the general contractor is lazy in exercising the creditor's rights to the employer, the standard of "lazy in exercising" in the conditions for exercising the right of subrogation can be cited. As long as the general contractor does not exercise through litigation or arbitration, and the general contractor cannot prove that he actively claims the creditor's rights to the employer, he can be regarded as lazy in exercising the due creditor's rights, and then he can draw the conclusion that his improper prevention of the achievement of the conditions is regarded as the conditions, the subcontractor may request payment from the general contractor on this grounds. 3, "back-to-back" terms of the agreement is not clear, the general contractor should pay within a reasonable period of time. The "back-to-back" clause only takes the general contractor's receipt of the employer's payment as the premise of its payment to the subcontractor, but does not agree on the specific payment scope and proportion. The following disputes may arise between the parties:(1) when the employer pays the general contractor, the subcontractor can claim the right to the general contractor, and whether the employer must pay all the project funds as the premise;(2) As there are many different sub-projects in the construction projects, if the contractor pays the general contractor for the part other than the construction of the subcontractor, whether the subcontractor can claim the right to the general contractor. If the "back-to-back" clause is considered to be an agreement on the term of payment, the existence of the above dispute indicates that the clause itself is unclear. Article 501, paragraph 4, of the Civil Code stipulates: "If the time limit for performance is not clear, the debtor may perform at any time and the creditor may request performance at any time, but the other party shall be given the necessary preparation time. This clause establishes the legal rules that should be performed within a reasonable period of time in the event of an unknown period of performance, according to which the "back-to-back" clause is not clear, the subcontractor may request payment from the general contractor within a reasonable period of time. After the subcontractor obtains the due claim against the general contractor through litigation or arbitration according to the above ideas, if the general contractor has no ability to pay, and its delay in exercising the due claim causes damage to the subcontractor, the subcontractor may subrogate the general contractor's claim against the contractor in its own name, that is, the creditor's subrogation right stipulated in Article 535 of the Civil Code and Article 44 of the (I) of the Supreme People's Court on the Interpretation of Legal Issues Applicable to the Trial of Construction Contract Disputes. The application of law in the case of invalidity of back-to-back clauses in (III) If the subcontract is found to be invalid due to the violation of the law, the "back-to-back" clause shall also be invalid. According to Article 793 of the Civil Code: "The construction project contract is invalid, but if the construction project has passed the completion and acceptance, the contractor may be compensated at a discount by reference to the contract's agreement on the price of the project." This clause is based on the principle that restitution or restitution cannot be applied in the event of an invalid contract, so that its input is compensated at a discount by reference to the contractual agreement, and it does not lead to the conclusion that the time and conditions of payment are also applicable by reference, and the "back-to-back" clause does not apply by reference in the event of an invalid contract. At the same time, the subcontractor (the actual builder) may, in accordance with Article 43 of the Interpretation (I) of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Construction Contracts for Construction Projects, request the general contractor to pay and claim that the contractor shall bear joint and several liability within the scope of the outstanding payment. Summary The "back-to-back" clause is not a legal concept in the strict sense, and the application of the law and judicial interpretation is not uniform and clearly stipulated, but based on the general contractor, especially in the case of "A-finger subcontracting", the risk of price payment is avoided, and there are a large number of such clauses in practice. Most of the "back-to-back" clauses will be considered valid, and from the point of view of the application of the law, it should be analyzed in the light of the facts of the case whether the agreement of the clause is clear and whether the general contractor is lazy in claiming claims to the contractor.
2021-10-14
13
2021-10
Counting the major events in the real estate market in 2021, there must be "centralized land supply". More than half of this year's centralized land supply has been launched, and the rules of land auctions have been continuously improved. What impact will it have on the market? 1 Centralized land supply proposal Since 2016, the central government has set the tone of "housing, not speculation", and the state has played a "combination fist" to regulate the real estate market. With the emergence of new land kings, the rules of land auctions have been adjusted one after another to curb the excessive rise in land and house prices from the supply side. 2 First round of centralized land supply As of the end of June, the first round of centralized land transfer in 22 cities was completed, with a transaction amount of more than 1 trillion yuan, a transaction area of about 0.11 billion square meters, a transaction floor price of about 9,600 yuan/㎡, and an average premium rate of 15%, showing a relatively high overall heat. From the perspective of specific cities, Beijing, Shanghai, Chengdu, Suzhou, etc. have relatively low transaction premiums due to strict land auction rules; Chongqing and Wuhan have relatively high transaction premiums due to loose land auction rules. In short, the popularity of plain cities and plots of average quality is still flat, while the core plots of hot cities and non-hot cities with better de-localization are still being scrambled, and the effect of "three stability" is not as good as expected. 3 The second round of centralized land supply and change On July 22, Vice Premier Han Zheng pointed out that it is necessary to speed up the improvement of the "stable land price" working mechanism, optimize the land auction rules, and establish an effective review system for enterprise land purchase funds. On August 11, the Ministry of Natural Resources held a closed-door meeting to adjust the second round of land transfer policies, strictly review the qualifications and funds of bidding companies, and the upper limit of the premium is 15% to ensure a certain profit margin for real estate companies. In addition, the Ministry of Housing and Construction has repeatedly mentioned that efforts should be made to establish a real estate linkage mechanism, promote Beijing's practice of "limiting house prices, controlling land prices, and improving quality", establish a qualification examination system for land purchase enterprises, and establish a mechanism for reviewing and refunding land purchase funds. In the second round of centralized land supply, several cities announced the postponement, and the rules for participating in the auction were adjusted, including limiting land prices, controlling premiums, banning waistcoats, limiting qualifications, checking funds, competing quality, etc. All localities strengthened the linkage of real estate, and the rules for land auction converged. Main rule changes Transfer progress and performance 4 Impact on the market The supply of residential land is based on solving the outstanding housing problems in big cities. Beijing and other big cities are inclined to affordable rental housing in land supply, and further increase the supply of public rental housing, affordable rental housing and shared property housing through centralized construction and allocation. In addition, it is a normal phenomenon that the heat of various urban plots is divided. In addition to the rules of land auctions, it is mainly affected by many factors such as economy, population mobility, and urbanization development. The government sets the rules, and the others are adjusted through the market mechanism, and there is a reasonable stratification from land price to housing price, so as to meet the diversified market demand. In a word, "stable land price, stable house price and stable expectation" are the objectives of real estate market regulation. Therefore, all localities have continuously improved the land auction rules: limiting land price from the supply side, controlling premium to control actual land price, limiting qualification of participating enterprises from the demand side, strictly checking capital sources to control effective demand, and "limiting land price + competition quality + lottery" to guide bidding enterprises to attach importance to development quality and ensure certain profit rate. "No vest + limited number of auctions" to protect more housing enterprises to participate in the interests of land auction, in addition to the state-owned enterprises and head housing enterprises, other regional housing enterprises will also get more opportunities. With the cost of land under control, it brings stable expectations for the real estate market. The author of this article: World Federation Appraisal, the country's leading land, real estate and asset appraisal institution, has a strong appraiser team, holds the qualifications of RICS, MAI, HKIS and other international societies, is committed to continuous professional leadership, deeply interprets the real estate market from a forward-looking perspective, and the content starts with the value of the territory public number, with continuous originality and excitement!
2021-10-13
11
2021-10
Source: Department of Housing and Urban-Rural Development of Shandong Province Notice on Soliciting Comments on the List of Contents of Whole Process Engineering Consulting Services (Draft) Municipal engineering cost management agencies and relevant units: In order to establish the whole process engineering consulting service standard system of Shandong Province, guide the cost consulting enterprises in our province to improve the whole process engineering consulting service ability, and standardize the practice behavior of cost consulting enterprises and their employees, Shandong engineering construction standard cost center has organized and compiled the list of contents of whole process engineering consulting service (Draft for comments), which is now widely soliciting opinions from the society. Please organize the municipal project cost management agencies to summarize the opinions of relevant units and send the electronic version of the opinions to the electronic E-mail wxg7058@shandong.cn before October 17. Contact: Wang Xiaoguang Tel: 0531-87087055 Annex: List of Contents of Whole Process Engineering Consulting Services (Draft for Comments).docx (See http://zjt.shandong.gov.cn/art/2021/10/8/art_119937_10297640.html for details) Shandong Engineering Construction Standard Cost Center 8 October 2021
2021-10-11
28
2021-09
The raising of the problem Article 43 of the (I) of the Supreme People's Court on the Interpretation of Legal Issues Concerning the Trial of Construction Contract Disputes (hereinafter referred to as the "Construction Project Judicial Interpretation (I)"), which came into effect with the Civil Code on January 1, 2021, stipulates that If the actual builder sues as a subcontractor or an illegal subcontractor, the people's court shall accept it in accordance with the law. If the actual builder claims the rights of the contractor as the defendant, the people's court shall add the subcontractor or the illegal subcontractor as the third party in the case, and after finding out the amount of the construction project price owed by the contractor or the illegal subcontractor, the contractor shall be liable to the actual builder within the scope of the construction project price owed. The judicial interpretation basically continues the provisions of Article 26 of the 2004 Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Contract Disputes and Article 24 of the 2018 Interpretation (II) of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Contract Disputes, with the word "actual builder" used at the beginning of the sentence, and in the latter sentence only provides that in the case of subcontracting and illegal subcontracting, the actual builder can claim the project price to the contractor, then the same as the actual builder's affiliate, similar to subcontracting and illegal subcontracting, in the case of invalid contract can claim the project price to the contractor? There are different viewpoints in theory and judicial practice. judicial practice viewpoint There are two different views in the administration of justice. One is that the affiliated person is no different from the actual construction person in the case of subcontracting or illegal subcontracting. Article 43 of the (I) for Judicial Interpretation of Construction Projects should be applied by analogy. The affiliated person can claim the project price from the employer; the other is that the scope of application of the judicial interpretation should be strictly limited, the affiliated person shall not claim the project price from the contractor on this basis. Several cases are cited below to illustrate: (I) support the case of the affiliated person claiming the project payment from the contractor. 1. Supreme People's Court (2019) Supreme Law Minzong No. 329 Civil Judgment Referee's Point of View: Zhu Tianjun borrowed the qualification of Zhongding Company to sign a construction contract with Wulan County Land and Resources Bureau. As the borrowed qualification party, Zhongding Company lacks the true meaning of signing a construction contract with Wulan County Land and Resources Bureau. Zhongding Company does not have a substantive legal relationship with Wulan County Land and Resources Bureau. In this case, Zhu Tianjun, as the actual builder of the project involved in the case, formed a de facto legal relationship with the Wulan County Land and Resources Bureau in the process of concluding and performing the construction contract, and Zhu Tianjun had the right to claim the project payment from the Wulan County Land and Resources Bureau. 2. Supreme People's Court Supreme Law Minzong No. 353 Civil Judgment Referee's Point of View: The "Affiliation Agreement" signed by Zheng Guoping and Zhongqin Qinghai Branch clearly stipulates that Zheng Guoping is affiliated with Zhongqin Qinghai Branch to contract the project involved in the construction case. Although Yuntian Company does not approve the agreement, the "Statement" issued by the company on July 23, 2017 clearly states that the construction party is Zheng Guoping. The existing evidence in this case is sufficient to prove that Zhongqin Qinghai Branch has not fulfilled its construction obligations, but is only the nominal subject of the contract. Yuntian Company knows the fact that Zheng Guoping is affiliated with Zhongqin Qinghai Branch for actual construction. The construction contract of the construction project in this case was actually performed by Yuntian Company and Zheng Guoping, so the two parties formed a de facto relationship of rights and obligations. A series of contracts signed by Zheng Guoping in the name of Zhongqin Qinghai Branch shall be deemed invalid in accordance with the provisions of Article 1 of the judicial interpretation of the construction contract. Article 58 of the the People's Republic of China Contract Law stipulates the legal consequences of the invalidity of the contract, that is, the parties to the contract have the obligation to return the property, compensate for the discount, compensate for the loss, etc. In this case, Zheng Guoping, as the affiliated construction party, the materials and services it invested have been materialized into the project involved in the case, and its value has been determined through appraisal. Yuntian Company shall complete the obligation to return the property after the contract is invalid by paying the project funds to Zheng Guoping. Zheng Guoping has the right to claim claims against Yuntian and has the right to directly request Yuntian to pay for the project. 3. Jiangsu Provincial Higher People's Court (2016) Su Min Zhong Zi No. 46 Civil Judgment Referee's point of view: The affiliated person claims the project payment to the contractor, which is due to the contractor's acceptance of the work results of the affiliated person, resulting in the obligation to pay to him. However, there is no factual and legal basis for the affiliated person to require the affiliated person to bear joint and several liability for the contractor's non-payment of the project funds. 4. Supreme People's Court (2019) Supreme Law No. 1350 Chen Yajun and Jiangxi four built between the formation of affiliated relations. When dealing with unqualified enterprises or individuals affiliated with qualified construction enterprises to undertake projects, they should further examine whether the contract counterpart is in good faith and whether they know the affiliated facts at the time of signing the agreement to make corresponding determinations. If the relative does not know the affiliated facts and has reason to believe that the contractor is the affiliated person, priority should be given to protecting the bona fide counterpart. The agreement signed by both parties directly binds the bona fide counterpart and the affiliated person. At this time, an illegal subcontracting relationship may be formed between the affiliated person and the affiliated person. The actual builder can request the contractor and the employer to bear corresponding civil liabilities for the project price involved in the case. If the counterpart knows the affiliation when signing of the agreement, that is, the relative and the affiliated person, the affiliated person conspires to make a false intention, then the affiliated person and the contractor may directly form a de facto contractual rights and obligations relationship, the affiliated person can directly claim rights to the contractor. That is, no matter what kind of situation it belongs to, it is not possible to simply deny the right of claim for the price of the project enjoyed by the attached person only by the existence of an attached relationship. Therefore, the court of first instance held that the affiliated relationship could not apply the provisions of Article 26 of the interpretation of the Supreme People's Court on the application of legal issues in the trial of construction contract disputes, and further determined that Chen Yajun was not the qualified plaintiff in this case and rejected his lawsuit, which was an error of applicable law. The (II) does not support the case of the affiliated person claiming the project payment from the contractor. 1. Civil Ruling No. 3613 of the Supreme People's Court (2017) Referee's point of view: In the case of affiliated construction, there are two legal relationships of different nature and content, one is the legal relationship of construction projects, the other is the legal relationship of the affiliated legal relationship, according to the principle of contract relativity, the rights and obligations of the parties should be dealt with separately according to the relevant contract. Jianbang Foundation Company has not provided evidence to prove that it has formed a de facto construction contract relationship with China Metallurgical Group Company. Therefore, even if Jianbang Foundation Company is identified as the actual constructor of the project involved in the case, it has no right to break through the relativity of the contract and directly claim the contract right of the construction project to China Metallurgical Group Company, which is not the counterparty to the contract. Article 26 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Disputes over Construction Contracts for Construction Projects applies to illegal subcontracting and illegal subcontracting of construction projects, and does not apply to affiliated situations. Article 2 of the interpretation gives the subject of the right to claim the project payment as the contractor rather than the actual construction person, and the actual construction person under the condition that Jianbang Foundation Company claims to be attached can directly claim the project payment to the counterparty of the contract over the attached unit, which is not based on enough. 2. Supreme People's Court (2018) Supreme Law Civil Judgment No. 391 Referee's point of view: Even if Shen Guangfu, the subject of the case, is the actual construction person attached, the judicial interpretation does not clearly stipulate that the actual construction person attached has the right to claim rights against the contractor, and in this case the contractor has claimed rights against the contractor, its claim should not be supported. legal analysis According to the current legal system and its interpretation methods, whether or not based on Article 43 of the (I) for Judicial Interpretation of Construction Projects, there are different angles and bases for each person to claim the project price from the contractor, which can be analyzed from the following aspects: The legal analysis of the application of Article 43 of the (I) on the judicial interpretation of construction projects by the (I) affiliated persons Whether the affiliated person can refer to the provisions on subcontracting and illegal subcontracting, the analogy applies the provisions of Article 43 of the judicial interpretation, directly to the contractor to claim the price of the project, can be based on the legislative purpose from the perspective of the relationship between the interests of the affiliated person and the contractor to make a value judgment: 1. Analysis from the perspective of the affiliated person Whether it is subcontracting, illegal subcontracting or affiliation, although the contract is invalid, but without the confirmation of the court or arbitration institution, there is no contractual relationship between the contractor and the actual builder in the legal form, let alone the claim of contractual rights, otherwise there is a violation of the relativity of the contract. Even after the contract is confirmed to be invalid, according to the provisions of Article 793 of the Civil Code, if the construction project has passed the completion and acceptance, the contractor shall be compensated at a discount with reference to the contract on the price of the project. However, Article 43 of the (I) on Judicial Interpretation of Construction Projects allows breaking through the relativity of the contract under the circumstances of subcontracting and illegal subcontracting, which should be regarded as an exception to the relativity of the contract. The reason is to protect the vulnerable groups (especially the interests of migrant workers) who have performed the contract although they have not performed the contract. The Supreme People's Court also pointed out that breaking through the relativity of the contract is mainly applicable to the failure to pay of migrant workers, therefore, from the purpose of interpretation, the affiliated person and the other two types of actual construction is no different, the same need to protect, although the judicial interpretation is not clearly defined, but has the basis of the legislative purpose of analogy application. 2. Analysis from the Employer's Point of View In the case of affiliation, it is necessary to distinguish whether the contractor is aware of the facts of the affiliation, and then to determine whether the affiliation is contrary to the principle of protecting good faith if the affiliation claims to it. (1) The Employer does not know the facts of the affiliation. If the employer does not know the qualification of the affiliated party, from the perspective of bona fide protection of the employer, according to the principle of contract relativity and trust protection, it may come to the conclusion that the legal relationship between the affiliated party and the employer has formed a construction contract, and then it is concluded that there is no de facto construction contract relationship between the affiliated party and the employer, and the affiliated party directly requests the employer to claim the project price without a claim basis. However, from another perspective, both the affiliated person and the affiliated person enjoy monetary creditor's rights. According to the second paragraph of Article 545 of the Civil Code on the transfer of monetary creditor's rights, even if it is admitted that only the affiliated person can request the project price from the employer and both parties agree that the project payment creditor's rights cannot be transferred, the affiliated person can also transfer the project payment creditor's rights to the affiliated person, and the employer cannot use this as an excuse against the third person, therefore, even if the contractor is in good faith and does not know the facts of the affiliation, it is not impossible for the affiliation to directly claim the project payment from him. In addition, from a result-oriented point of view, the contractor pays the affiliated person within the scope of the project payment owed to the nominal contractor, and the project payment owed to the nominal contractor is eliminated at the same time, which can simplify the rights and obligations between the three parties. (2) The Employer knows the facts of affiliation If the contractor is aware of the fact of the affiliation, the contract signed by the contractor in name with the affiliated person shall be invalid for the false meaning of the accomplice of both parties, and the actual construction contract relationship between the affiliated person and the contractor hidden by the false meaning shall also be invalid because the affiliated person does not have the corresponding qualifications. In the case that both contract relationships are invalid, according to the general theory of judicial practice, the actual performance of the contract should be respected. The affiliated person, as the actual builder, has a de facto legal relationship between the construction contract and the employer. If the quality of the project involved is qualified, the affiliated person has the right to request the owner to pay the project fund according to the agreement of the construction contract. To sum up, from the balance of interests between the affiliated person and the employer, Article 43 of the (I) for Judicial Interpretation of Construction Projects is not without applicable space for the affiliated person, and can be applied by analogy based on the above reasons. (II) other paths for the affiliated person to claim the price of the project from the contractor. In addition to the application of the above-mentioned judicial interpretation to the contractor by analogy, there is also the possibility of realization through other paths, such as the right of subrogation and the right of claim for the return of unjust enrichment. 1. The attached person may claim the project payment from the contractor on the basis of the right of subrogation. Article 44 of the (I) for Judicial Interpretation of Construction Projects stipulates that if the subcontractor or the illegal subcontractor is lazy in claiming the due claims from the contractor, the actual contractor may claim the subrogation litigation for the defendant. Although the judicial interpretation does not make it clear that the affiliated person can exercise the right of subrogation, according to the general provisions of the General Principles of the Civil Code of Contracts on the right of subrogation, the right of subrogation is not limited by the subject. As long as the affiliated person is idle in claiming the project claim to the contractor, affecting the realization of the project payment claim enjoyed by the affiliated person, the affiliated person can exercise the right of subrogation to claim the project payment to the contractor. 2. The affiliated person may claim the project payment from the contractor on the basis of the right to claim the return of unjust enrichment. Whether it is the provisions of Article 793 of the Civil Code on invalid discount compensation for construction contracts, or Article 157 of the Civil Code on the invalidity of general legal acts and the return of property or discount compensation after revocation, in the case of invalid contracts, their essence is the return of unjust enrichment. Similarly, the affiliated person as the actual construction person, its labor materialization in a specific construction project, the contract is invalid, the abstract labor results can not be returned, can only be discounted compensation, which is also the legislative basis of the above-mentioned legal provisions. The construction project is constructed and completed by the affiliated person, and the contractor benefits as a result, so the affiliated person can get out of the dilemma of contract relativity and claim the project payment to the contractor through the right of return of improper profits. Summary Whether the affiliated party can directly claim the project price from the employer can be analyzed from two angles. One is to weigh the interests of the affiliated party and the employer on the basis of legislative purpose, and to analyze whether the provisions of Article 43 of the (I) for Judicial Interpretation of Construction Projects can be applied by analogy through legal interpretation and value judgment. The second is to jump out of the dilemma of applying the above judicial interpretation and contract relativity by analogy, attempt to claim the project payment from the contractor by exercising the right of subrogation or the right of return of unjust enrichment.
2021-09-28
22
2021-09
On May 18, 2021, a traffic accident case concluded by Jiangsu Higher People's Court was revised to the trial results of the first instance and the second instance. The opinions of the retrial High Court are inconsistent with the judgment purpose of the guiding case issued by the Supreme People's Court. Therefore, in this article, the author takes the retrial judgment as the starting point to discuss and learn the traffic accident cases involved with everyone, the legal issues related to the special constitution of the victim and the mitigation of the infringer's liability. The case of Jiangsu Shen Higher People's Court involves the following facts: the victim was injured in a traffic accident. Before the traffic accident, the victim had his own disease. The old fracture of lumbar 12 vertebral body, which was hit by the traffic accident, was injured again in the waist. After identification, the compression fracture of thoracic 12 vertebral body was caused by the traffic accident, and the left waist movement was limited, which constituted grade 10 disability in the traffic accident, and the participation in the traffic accident was 50%. In the first and second instance of the case, the court did not support the defendant's disability compensation corresponding to the 50% participation caused by the deduction of the victim's personal constitution. The case was finally revised after retrial. Let's take a look at the discussion of the court's determination in the High Court's retrial judgment: "This court believes that the causal relationship between the infringement and the consequences of the damage is the constituent element of the infringement. The causality of tort is divided into the causality of liability and the causality of the scope of liability. The former judges the causality between the infringement and the infringement of rights and interests. The latter determines the causal relationship between the tort and the consequences of the damage. There is no doubt that there is a causal relationship between the tort of the traffic accident in this case and the damage caused by Liu Yun, and there is no dispute on the establishment of tort liability. The focus of the dispute in this case is mainly on the determination of the causal relationship between the scope of liability. That is, as the infringer responsible for the traffic accident, what is the scope of responsibility that should be borne, and whether it should bear full responsibility for the damage consequences of Liu Yun's ten-level disability. The Court believes that the occurrence of tort results in the real world, the causes are complex, can not be generalized, the emergence of a damage consequence, sometimes with several acts of causality, should consider several violations of the damage to the consequences of the damage participation, that is, the problem of the proportion of the cause. When the victim itself has a special physique, it should also consider the proportion of the cause. Road traffic accidents themselves are negligent liability, and the perpetrators of the damage are unwilling to occur. As for how the victim's physical fitness is not what the person responsible for the infringement can predict, if the damage participation is completely denied, it is not in line with the fairness principle of civil law. From another perspective, the victim's original disease or damage is not caused by the perpetrator. When a traffic accident occurs, the perpetrator cannot expect the result of adding the victim's own physical reasons. Therefore, when the road traffic accident and The victim's own injury factors are superimposed to cause the damage consequences, it is necessary to find out the cause of the final damage consequences and distinguish the magnitude of the force of each cause in order to effectively draw the responsibility." Through the above-mentioned discussion of the court's view, we will discuss several issues involved: First, the issue of injury participation. 1, the concept of injury participation Injury participation refers to the proportional relationship that injury plays a role in the occurrence of death, disability and sequelae in the event that trauma, disease (including aging and physical differences) and other factors act on the human body together to damage human health. 2, the level of injury participation Injury participation can be divided into five levels: ①, there are both injury and disease, the consequences are completely caused by the injury, the disease does not work, there is an inevitable causal relationship between the injury and the consequences, which is a complete causal relationship; ②, there are both injury and disease, the consequences are mainly caused by the operation, the disease only plays an auxiliary role, then there is a direct causal relationship between the injury and the consequences, which is the main causal relationship; ③. There are both injuries and diseases, neither of which exists alone can cause the current consequences, or they are equally important in causing the current consequences, and it is difficult to prioritize, then the injury and the current consequences are boundary-type causal relationship, which is the same causal relationship; ④ There are both injuries and diseases, and the injury is the inducing or aggravating factor, that is, the injury is relatively minor and does no great harm to the human body, however, if it can induce or promote the onset of the disease, the indirect causal relationship between the injury and the current consequences is a secondary causal relationship; ⑤, there is both injury and disease, if the consequences are entirely caused by the disease, there is no causal relationship between the injury and the consequences. Second, the Jiangsu Provincial Higher People's Court mentioned in the discussion of this case: the causality of infringement is divided into the causality of the establishment of the responsibility and the analysis of the causality of the scope of the responsibility. The division of tort causation into the causation of liability establishment and the causation of liability scope is not distinguished by the High People's Court of Jiangsu Province itself, but the mainstream view of causation theory and practice in our civil law system at present. In fact, it is often said that there is considerable causation. The doctrine holds that no such act is usually bound to cause such damage, but such act is sufficient to cause such damage, there is a considerable causal relationship between the two, the doctrine holds that the causal relationship is divided into the causal relationship between the establishment of responsibility and the causal relationship between the scope of responsibility, referred to as the dichotomy of causation, the doctrine needs to divide the boundaries between the establishment of responsibility and damages. 1, the causal relationship between the establishment of responsibility. The causal relationship of responsibility is that there is a causal relationship between the imputable act and the infringement of power. The author thinks that this solves the problem of fact determination, that is, the causal relationship at the factual level, which involves the qualitative problem, that is, there is a causal relationship between the infringer's harm behavior and the victim's damage consequences. 2, the causal relationship of the scope of responsibility. The causal relationship of the scope of liability refers to the causal relationship between the infringement of power and the damage. The author thinks that this solves the problem of legal determination, that is, the causal relationship at the legal level, which involves quantitative problems. What is solved is the causal relationship between the harm behavior and one of the closest damages, that is, how much causal relationship is between the infringer's harm behavior and the victim's damage consequences. The classification of causality involved in tort law is a very complex issue. In reality, there are theories of causality, such as conditional theory, cause theory and Guran causality theory, in addition to the above-mentioned mainstream equivalent causality theory. However, no matter how reasonable the theory is, science cannot really solve all the causality problems involved in tort, therefore, some people think that the causal relationship involved in tort is not a legislative issue, but a judicial issue, and judges should be given discretion in individual cases to achieve judicial justice and further unity of judicial and social effects. Therefore, in this paper, the author only makes a brief discussion on the mainstream theory of causality, and no longer discusses it in depth. Third, the Supreme People's Court Guidance Case No. 24 involving the special constitution of the victim and the reduction of the infringer's liability. Guidance Case No. 24 issued by the Supreme People's Court in 2014 held that: Article 26 of the "the People's Republic of China Tort Liability Law" stipulates: "If the infringer is also at fault for the occurrence of the damage, the infringer's liability can be reduced." In this case, although the plaintiff Rong X Ying's personal physical condition has a certain impact on the occurrence of damage consequences, but this is not the tort liability law and other legal provisions of the fault, Rong X Ying should not be due to personal physical condition on the disability caused by traffic accidents There is a certain impact and self-responsibility. Although Rong X Ying is old, her old osteoporosis is only an objective factor of the consequences of the accident, and there is no legal causal relationship. Therefore, the victim Rong X Ying is not at fault for the occurrence or expansion of the damage, and there is no statutory situation to reduce or exempt the perpetrator from liability. For personal physical problems, the law of our country does not give clear opinions, so after the introduction of the guiding cases in that year, it played a certain role in the judicial practice of traffic accident cases that appeared in a certain period of time. However, with the development of time and the progress of theory, it is not supported by pure and unfair to a certain extent. Therefore, the author believes that the views of the Higher People's Court of Jiangsu Province precisely represent the further development of the theory of tort causation in practice. Fourth, the provisions of local courts on the special physique of victims. 1. Trial Rules of the Intermediate People's Court of Hefei City on Cases of Compensation for Damages in Road Traffic Accidents (Trial)(2019) Article 27: Where there is a causal relationship between the victim's own health condition and the consequences of the damage, and the self-health condition originates from the natural aging or special constitution of the human body, the infringer's liability for compensation shall not be reduced: but the disease suffered by the victim before the traffic accident significantly aggravates the consequences of the damage, for the part that exceeds the limit of liability for compulsory traffic insurance, the victim's own disease participation in the consequences of the damage should be considered, and the infringer's liability should be reduced accordingly. 2. The answer to the difficult questions on the application of civil trial law of Zhejiang Higher People's court in the 17th issue of 2013 is: if the victim with special physique (including physical and mental special physique, as well as congenital heredity or acquired aging and sick physique) suffers infringement, the compensation obligor shall, in principle, be liable for all the damages suffered by the victim. If the indemnity obligor defends that the damage suffered by the victim is induced by his own special constitution, it is generally not supported, but the consequences of the damage are beyond the scope that can be expected under normal circumstances and the infringer does not have intentional or gross negligence, the liability of the obligor may be appropriately mitigated by taking into account the specific circumstances such as the degree of fault of the infringer, the means of infringement, the manner of conduct, the gap between the usual possible consequences of the infringement and the actual consequences of the damage, and the financial capacity of the infringer to bear the liability. To sum up, whether the individual special physique can be a factor to reduce the responsibility of the infringer, although the theory of causality has certain limitations in practice, the author believes that in the trial practice, the judge can learn from the theory, comprehensively consider the degree of the infringer's fault, the means and methods of the harmful act, the expected consequences, the principle of fairness and other comprehensive identification, should not be supported.
2021-09-22
02
2021-09
The Rules for the Supervision of Civil Litigation by the People's Procuratorates (hereinafter referred to as the "New Rules") were adopted at the 62nd meeting of the 13th Procuratorial Committee of the Supreme People's Procuratorate and shall come into force on August 1, 2021. As an important judicial interpretation of the procuratorial organs in the field of civil prosecution, the new rules have a far-reaching impact on lawyers to apply for inspection suggestions or to inspect and supervise cases. In view of this, this paper selects the bright spots in the new regulations to interpret, and combs the "acceptance-review-supervision-management" model under the new rules into process guidelines and compares the old and new provisions, with a view to throwing bricks and mortar. Interpretation of New Highlights The new rules have 10 chapters and 135 articles, which is 1 chapter less and 11 more than the original rules. The main contents are: 1. Section on "Jurisdiction" deleted 2. Clarify the time limit for applying for supervision The parties shall submit the retrial application within two years from the date when the people's court makes a ruling rejecting the retrial application or the retrial judgment or ruling takes legal effect. This period is a constant period and does not apply to suspension, interruption or extension. There are no restrictions on cases in which the people's procuratorates initiate supervisory procedures ex officio. It is worth noting that Feng Xiaoguang, director of the Sixth Procuratorate of the Supreme People's Procuratorate, said that this clause generally does not have retroactive effect and is only applicable to newly accepted cases. Considering that the parties need to have reasonable expectations for the new provisions of judicial interpretation, for civil cases before the implementation of the new civil litigation supervision rules, the time limit for the parties to apply for supervision should be calculated from the date of implementation of the revised civil litigation supervision rules, so as to ensure the exercise of the parties' right to apply for supervision. 3. Clarify the remedies for procuratorial organs not accepting applications for supervision in accordance with the law. If the procuratorial organs fail to accept the application for supervision according to law, the parties have the relief channels to apply to the procuratorate at the next higher level for supervision, which broadens the channels for safeguarding rights, and forces the procuratorial organs to perform their duties and accept the application for supervision from the standpoint of level supervision. 4. New types of ex officio supervision cases Three new cases of ex officio supervision have been added and a bottom-up clause has been added, especially the case of false litigation has been included, thus broadening the scope of ex officio supervision. "Major" and "necessary" situations need to be independently judged by the procuratorate, which gives the procuratorate more room for ex officio supervision. The newly added People's Procuratorate initiates supervision procedures for civil cases ex officio, and is not restricted by whether the parties apply for retrial. This is of great significance to the parties. For some cases that have failed to apply for retrial, if they are unable to apply for supervision, if they fall within the scope of ex officio supervision, they can provide clues to the procuratorate to continue legal procedures. 5. New Implementation Supervision The new rules stipulate that the people's procuratorate may issue a "notice explaining the implementation of the case" to the people's court and make procuratorial suggestions to the people's court at the same level. A special chapter is also set up to provide for supervision of implementation. Civil cases from filing, trial, adjudication to enforcement, including the enforcement of civil non-litigation enforcement basis such as arbitral awards and notarized creditor's rights documents, no matter which link there is illegal situation, the procuratorial organ has the right to supervise in accordance with the law. If a lawyer finds that the people's court is negligent in performing its duties or is passive or delays execution during the execution of the lawsuit, he may provide clues to the procuratorate, which may request the court to explain the execution and reasons or make procuratorial recommendations to the people's court at the same level. 6. Increased the specific work of the expert consultation and argumentation system and access to the provisions of the sub-volume (1) According to the "Supreme People's Procuratorate's Civil Administrative Litigation Supervision Case Expert Consultation and Demonstration Work Measures", the new rules increase the relevant content of organizing expert consultation and demonstration. (2) The new rules implement the requirements of the CPC Central Committee on exploring the system of reviewing the main and secondary volumes together, increase the relevant provisions of the court's litigation files and secondary volumes, and further improve the working mechanism of case review, investigation and verification. Guidelines for the Process of the Rules for the Supervision of Civil Litigation by the People's Procuratorate
2021-09-02
01
2021-09
With the rapid development of China's economy and society and the accelerating process of urbanization, the problem of noise pollution is becoming more and more prominent. According to the 2020 China Environmental Noise Pollution Prevention and Control Report released by the Ministry of Ecology and Environment, according to incomplete statistics, more than 2 million environmental noise complaints were received nationwide in 2020. Among the public reports received by the "National Ecological Environment Complaint Management Platform", noise nuisance accounted for 41.2, ranking second among all environmental pollution factors. Among them, the construction noise pollution at night is widely concerned because it is closely related to the life and rest of residents. In practice, how should night construction noise pollution be determined? How to compensate?
2021-09-01
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
