Viewpoint | Successful Case: Lawyers Zhou Jiakui and Li Baojun Decided Not to Prosecute for Major Fraud Crimes

Article 266 of the the People's Republic of China Criminal Law stipulates that defrauding public and private property, and a large amount constitutes the crime of fraud. In determining whether the parties constitute the crime of fraud, it is very important to demonstrate whether the parties have the intention of illegal possession. Now the author combines the following lawyer successful defense case to elaborate on the problem, hoping to have some enlightenment to the readers.

2024-06-04

Viewpoint... The determination and analysis of the joint and several liability of shareholders who are lazy in fulfilling their liquidation obligations.

This paper combs through the legal provisions on shareholders who are idle in fulfilling their liquidation obligations, which are included as a kind of tort liability.

2024-05-28

Viewpoint... Will execution path analysis.

With the continuous progress and development of society and the continuous improvement of people's material living standards, more and more people pay more attention to the distribution of their own inheritance, and solve their worries by establishing the distribution of testamentary property. But then follow-up questions continue to emerge, especially the acceptance of the heir to the will before the testator dies, how will the will be executed?

2024-05-11

Point of View | What kind of quality problems can refuse to accept the house and claim the responsibility of overdue delivery? -- Zhang San v. a real estate company in Qingdao for a dispute over a commercial housing presale contract

This article will interpret the case and combine the judgments of similar cases to provide a reference for the owners to reject the house or require the developer to assume the responsibility for repair when they encounter quality problems in the house.

2024-05-07

World Earth Day | Zhongcheng Qingtai Jinan Institute Environmental Law Business File

April 22 is Earth Day and World Law Day, and on the eve of this day, Zhongcheng Qingtai released an "Environmental Law Business File", what exactly is the content of the file? Let's uncover its mystery together......

2024-04-22

Viewpoint... Analysis of the civil liability of "lending bank account".

In real life, companies often borrow the accounts of legal representatives, financial personnel, shareholders, employees, or friends and relatives who have nothing to do with the company. According to the investigation, there are a large number of situations such as mutual borrowing accounts between enterprises, borrowing bank accounts of natural persons by enterprises, and borrowing enterprise accounts by natural persons. In the event of an economic dispute, creditors will usually sue the recipient of the money as a debtor for evidentiary relevance, at which point lending their accounts to the business may be subject to litigation risk and may even face civil liability.

2024-04-18

Viewpoint | Discuss whether the rotation of farmers recruited by state-owned mining enterprises before the implementation of the Labor Law is a labor relationship adjusted by the Labor Law, and whether the people's court should accept it.

This paper discusses whether the rotation of farmers employed by state-owned mining enterprises before the implementation of the Labor Law belongs to the labor relations adjusted by the labor law and whether the people's court should accept it.

2024-03-14

Viewpoint... The crime of picking quarrels and causing trouble together is suspected of not prosecuting and innocent defense ideas.

From February 12 to February 19, 2022, a parked an electric tricycle in the middle of a construction road on the south side of a village in area a on the grounds of noise and dust pollution to intercept the motorcade of a limited company in Jinan, hindering the normal driving of the vehicle and demanding compensation for noise and dust pollution. does the act constitute the crime of provoking trouble?

2023-10-23

In the case of the case, if the guarantor is not required to assume the responsibility of the guarantee during the guarantee period, the guarantee liability is exempted.

Recently, a private lending dispute case handled by the author received a second-instance judgment made by the Jinan Intermediate People's Court (hereinafter referred to as the "Jinan Intermediate Court"). The court of first instance in the case ruled that the guarantor of the debt involved in the case was jointly and severally liable for the debt involved in the case. The author filed an appeal on behalf of the guarantor, and the Economic South Intermediate Court heard the trial. The final judgment revoked the first instance judgment, and the guarantor was not required to bear joint and several liability for the debts involved in the case, effectively safeguarding the legitimate rights and interests of the guarantor. Brief of the case On August 20, 2000, a company signed a Repayment (Repayment Guarantee) Agreement with Zheng and Zhang, agreeing that Zheng would lend a loan of 244000 yuan to a company with an annual interest rate of 13% until August 1, 2000. Zhang, as the vice president of the company, signed the agreement as the guarantor of repayment, and promised to "provide unconditional full repayment guarantee for the loan with his family property". At the bottom of the agreement, write "this agreement as an attachment to the original loan contract (No.998060). all parties agree that party B (a company) can repay it in monthly installments at a rate of 10% per month until June 2001", with Zhang's signature attached, but the words "monthly installments at a rate of 10% per month" and "June 2001" have been altered. In August 2021, Zheng filed a lawsuit with a district court in Jinan City, demanding that a company repay the principal and interest, and Zhang bear joint and several liability. Zhang did not appear in court to participate in the proceedings. A district court held that a company should bear the responsibility for repayment in accordance with the contract, and Zhang, as the vice president of the company, promised to provide unconditional full repayment guarantee for the loan with his family property, and should bear joint and several liability with the borrower, and accordingly ruled that Zhang should bear joint and several liability for the debts involved in the case. Zhang refused to accept the judgment of the first instance and entrusted the author to appeal. Grounds of Appeal 1. There are a large number of traces of alteration in the key evidence provided by Zheng in the first instance, and the alteration shall not be used as the basis for the final decision without Zhang's consent; 2, Zhang in this case is joint and several guarantee liability, the agreement did not agree on the guarantee period, and Zheng did not require Zhang to assume the guarantee responsibility within the statutory six-month guarantee period, Zhang's guarantee responsibility has long been exempted; 3, even if the court found that Zhang should bear the responsibility of guarantee, the statute of limitations of the main debt in this case has expired, as a guarantor of Zhang in accordance with the law to enjoy the main debtor's statute of limitations defense, no need to bear the responsibility of guarantee. The focus of the second trial dispute Whether Zhang is jointly and severally liable for the debts involved, I .e. whether Zhang's guarantee has exceeded the guarantee period. case analysis 1. On the issue of altered evidence The handwritten part at the bottom of the agreement, "divided into months at a rate of 10% per month" and "June 2001", was altered without Zhang's consent, and the above altered content is obviously beneficial to Zheng, so it has no legal effect on the above altered. Zhang, as the vice president and guarantor of the company, is deemed to have changed the repayment period of the debt involved in the case, that is, the performance period of the principal debt involved in the case should be "June 2001". 2. The question of whether the guarantee liability has passed the guarantee period. In this case, Zhang assumed joint and several guarantee liability, but the agreement involved in the case did not stipulate the guarantee period. Therefore, the guarantee period for Zhang to bear joint and several liability in this case should be six months after the expiration of the main debt performance period stipulated by law. In this case, Zheng did not provide evidence to prove that he required Zhang to bear the guarantee responsibility within six months from July 1, 2001, and should bear the adverse consequences. Therefore, Zhang's guarantee responsibility has been due to Zheng's failure to make a claim within the guarantee period. Exempt. Referee result After trial, the Jinan Intermediate People's Court revoked the original judgment of first instance that Zhang should bear joint and several liability for repayment, and changed the judgment to reject Zheng's claim against Zhang. Article Link Article 77 of the the People's Republic of China Contract Law "The contract may be changed if the parties agree through consultation. Where laws or administrative regulations stipulate that the modification of a contract shall be subject to approval, registration and other procedures, such provisions shall be followed." Article 78 of the the People's Republic of China Contract Law "If the parties are not clear about the content of the contract change, it is presumed that it has not been changed." Article 24 of the the People's Republic of China Guarantee Law "Where the creditor and the debtor agree to change the main contract, they shall obtain the written consent of the guarantor, and without the written consent of the guarantor, the guarantor shall no longer bear the guarantee liability. If it is otherwise agreed in the guarantee contract, it shall be in accordance with the agreement." Article 26 of the the People's Republic of China Guarantee Law "If the guarantor of joint and several liability guarantee and the creditor have not agreed on the guarantee period, the creditor shall have the right to require the guarantor to assume the guarantee liability within six months from the date of expiration of the period of performance of the independent debt. If the creditor fails to require the guarantor to assume the guarantee liability during the guarantee period agreed in the contract and the guarantee period specified in the preceding paragraph, the guarantor shall be relieved from the guarantee liability." Lawyer Reminder 1, for creditors, in order to avoid the guarantor out of the insurance, it is necessary to claim the guarantee liability to the guarantor or re-sign the guarantee contract within the guarantee period. 2. For the guarantor, the first is the defense that the guarantee period has passed the guarantee liability has been exempted, and the second is to exercise the defense rights of the principal debtor according to law, including the statute of limitations. 3. After the implementation of the Civil Code, the contents of the main creditor's rights and debts contract shall be changed without the consent of the guarantor, and if the debt is reduced, the guarantor shall still bear the guarantee liability for the changed debt, and if the debt is aggravated, the guarantor shall not bear the guarantee liability for the aggravated part. (Author: Zhang Wenhong)

2022-06-08

Examples of retrial | A brief description of the status of the parties in a retrial case in the context of a specific case

Basic case Zhang is an individual business operator, and Li is a husband and wife relationship. In September 2017, Zhang borrowed money from Tai one after another. On May 8, 2018, after Zhang and Tai audited the accounts, together with the interest, Tai issued an IOU with an amount of 400000 yuan. The IOU did not stipulate interest, and it was agreed that this amount would be from April 10 to April 2019. One-time return on the 20th, if overdue, the interest will be settled in accordance with relevant laws and regulations. On October 9, 2019, Tai asked Li for money but failed to sue to the court, demanding that the loan principal be returned to 400000 yuan, and from May 8, 2018 to the date when the loan was repaid, the annual interest rate was 6%. Pay interest; litigation costs are borne by Zhang and Li. Zhang replied that there was beheading interest in 400000 yuan's IOU, and the actual loan principal was 370000 yuan. There is no objection to the authenticity of the 400000 yuan transfer record provided by Tai, because there are frequent business transactions between the two sides, of which 30000 yuan's transaction record is the payment for goods from individual industrial and commercial households paid by Tai. Li argued that although he was a husband and wife relationship with Zhang, the two were emotionally discordant. He did not rule out a false lawsuit between Zhang and Tai, and had objections to the authenticity of the IOU. He did not know or sign the loan, and the loan was not used. Family life and business, so it is not a joint debt of husband and wife. The court of first instance held that Zhang borrowed money from Tai, and the facts were clear and the evidence was indeed sufficient. According to the Supreme People's Court on the application<中华人民共和国婚姻法>Article 24 of the (II) for Interpretation of Certain Issues states that creditors who claim rights over the debts incurred by one of the spouses in their own name during the marriage relationship shall be treated as the joint debts of the husband and wife. Li mou argued that he did not know about the loan, the receipt was not signed by Zhang mou, did not submit relevant evidence, did not provide evidence to prove that the debt belonged to Zhang mou's personal debt, and his defense was not accepted. The judgment supports Tai's claim. Both Zhang and Li refused to accept the judgment and appealed to the court of second instance, saying that Zhang had frequent business contacts between the two sides, of which the transaction record of 30000 yuan was the payment for goods from individual industrial and commercial households paid by Tai, and the second instance submitted the details of sales records of individual industrial and commercial households. First of all, Li Mou appealed that Zhang's signature in the IOU provided by Tai Mou was not his own, and now Li Mou requires handwriting identification. Secondly, Li Mou thinks that Tai Mou stated in the original trial that the 400000 yuan loan was formed by three loans. The first loan was formed in September 2017. Now Li Mou finds out the receipt issued by Tai Mou to Zhang on December 31, 2018 at home, it is proved that the loan has been paid off in September 2017, so Tai's statement in court is not true and the IOU is false. Thirdly, according to the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of cases involving marital debt disputes, Li did not know or sign the loan, and there was no evidence to prove that it was used for family life and business, so it was not a joint debt of husband and wife. Tai argued that the 400000 yuan IOU issued by Zhang to Tai was issued by Zhang after the final settlement of multiple loans in Tai. According to Articles 24 and 26 of the Judicial Interpretation of the the People's Republic of China Marriage Law, Li should bear Repayment responsibility. In the second instance, upon Li's application, whether Zhang's signature in the 400000 yuan IOU on May 8, 2018 was written by himself was verified by handwriting. The appraisal opinion was: Zhang's signature was written by the borrower in the IOU, and the handwriting was written by Zhang himself. The court of second instance ruled that the appeal was rejected and the original judgment was upheld. Zhang and Li both refused to accept the second instance judgment and applied for a retrial. In the light of this case, how does the civil retrial application list the status of the parties? In practice, after the court accepts the application for retrial, how does it list the status of the parties? First, Zhang and Li, as defendants in the first instance and appellants in the second instance, can apply for a retrial if they refuse to accept the judgment of the second instance. Zhang and Li can jointly write a retrial application. Both parties are retrial applicants. Tai is the respondent. Zhang and Li specify the specific facts and reasons in the application. If Zhang and Li apply for retrial respectively, the court will also combine the review. Second, in practice, if both parties are not satisfied with the effective judgment and apply for retrial, within the statutory time limit, the court accepts and examines the retrial application of one party, and if the other party also applies for retrial, the court will review it together, listing both parties as the retrial applicant, and the review period shall be recalculated. If both parties apply for a retrial, one or both parties are established and the retrial is ruled. If neither party is established, the retrial shall be rejected. Third, how to list the status of the parties in the application for retrial. If (I) parties or outsiders apply for retrial, they shall be listed as "retrial applicants"; if all parties apply for retrial, they shall be listed as "retrial applicants"; the respondent specified in the retrial application shall be listed as "respondent"; other parties in the original trial who have not filed an application for retrial or have not been listed as the respondent shall be listed according to their status in the first instance, the second instance and the appellant in the second instance "; in the case of a retrial application for a ruling of inadmissibility, only the applicant for retrial shall be listed. (II) the brackets after "retrial applicant" and "respondent" specify the litigation status of the parties in the first, second and retrial according to "plaintiff of first instance, counterclaim defendant (or defendant of first instance, counterclaim plaintiff), appellant of second instance (or appellee of second instance), original retrial applicant (or original respondent)"; If a civil application for retrial has been retried more than twice, the retrial litigation status in brackets is listed according to the litigation status of the parties in the last retrial. The retrial procedure is initiated by the people's procuratorate's protest or the people's court ex officio, and the retrial litigation status in brackets is listed according to "original complainant (or original respondent)"; If an outsider applies for a retrial, the "outsider" shall be listed in brackets ". If the name of the (III) party changes, the original name shall be indicated in brackets after the name. If the (IV) party is a natural person, the name, gender, nationality, date of birth, occupation, and address shall be listed; if the natural person's occupation is not clear, it may not be stated; if the party is a legal person or other organization, the name, residence, and legal representative or The name and position of the main person in charge. (V) the party is a natural person, the address is written as "residence: specific address". If the address stated in the application for retrial is inconsistent with the address stated in the effective referee or ID card, the address is written as "residence: address stated in the ID card, current residence: address stated in the application for retrial". If the party concerned is a legal person or other organization, the domicile shall be written as "domicile: the domicile stated in the business license". If the party's address or residence is located in the municipal district, it shall be written as "×× province (municipality directly under the Central Government, autonomous region) ×× city ×× district (specific address)"; if the party's address or residence is in a county under the jurisdiction of the city or a county-level city under the jurisdiction of the city, it shall be written as "×× province (municipality directly under the Central Government, autonomous region) ×× county (city) (specific address)", not prefecture-level city (city); if two or more parties have the same address, they should be stated separately and cannot be replaced by "the same address as above. The legal representative or principal person in charge of a (VI) legal person or other organization is written as "legal representative (or person in charge):×××, chairman (or factory director, director, etc.) of the company (or factory, village committee, etc.)". To sum up, there are strict requirements for the status of the parties applying for retrial. I hope you will pay more attention when writing the application for retrial, so as not to cause unnecessary trouble. </中华人民共和国婚姻法>

2022-04-24