How to identify the use of obscene videos to solicit customers to sell products?

Brief of the case During the period from September 26, 2017 to March 27, 2018, in order to promote the male health products operated by his WeChat circle of friends, Zhang Moumou successively established WeChat chat groups named "XXX Leisure Entertainment Group 1 (Group Plus Group Leader)", "XXX Leisure Entertainment Group 2 (Group Plus Group Leader)" and "XXX Leisure Entertainment Group 3 Group Plus Group Leader/No Words. Later, in order to increase his popularity, Zhang Moumou forwarded obscene videos and links in the group. After identification, 400 videos forwarded by Zhang moumou in "group 1 of so-and-so leisure entertainment (group 1 plus group owner)" are obscene articles, 344 videos forwarded in "group 2 of so-and-so leisure entertainment (group 2 plus group owner)" are obscene articles, and 341 videos forwarded in "group 3 of so-and-so leisure entertainment plus group owner/forbidden words" are obscene articles. After the case, the procuratorate of first instance prosecuted the case to the court on suspicion of spreading obscene materials for profit. After trial, the court of first instance held that Zhang was not subjectively profit-making, so his behavior did not constitute the crime of spreading obscene materials for profit, but constituted the crime of spreading obscene materials. Zhang was sentenced to one year and six months in prison. After the judgment of the first instance, the procuratorate filed a protest, believing that the purpose of profit-making required by the crime of spreading obscene articles includes not only direct profit-making through the dissemination of obscene articles themselves, but also indirect profit-making by means of the dissemination of obscene articles. Therefore, the defendant Zhang Qiuying subjectively has the purpose of making profits and should be recognized as the crime of spreading obscene articles for profit. The original judgment made improper restrictive interpretation of "profit, it is wrong to apply the law and the sentence is too light. The facts and evidence found by the court of second instance were the same as those of the court of first instance, but it adopted the protest opinion of the procuratorate and commuted Zhang to the crime of spreading obscene materials for profit, sentenced to three years' imprisonment and fined 5000 yuan. Focus Issues Zhang Moumou's use of obscene materials to attract customers and promote products can be recognized as the crime of spreading obscene materials for profit. legal analysis The main difference between the crime of spreading obscene materials for profit and the crime of spreading obscene materials is that the former requires the purpose of making profits, while the latter does not. In this case, in order to attract customers and sell male health products, Zhang Moumou posted obscene video links in the WeChat group. Regarding this behavior of using obscene materials to promote legal products, whether it constitutes the crime of spreading obscene materials for profit or the crime of spreading obscene materials, in judicial practice There is controversy. In the cases retrieved by the author, some courts have determined that this kind of behavior belongs to commercial drainage, and the intention is to increase attention. The act of spreading obscene videos does not bring benefits to the perpetrator, so it does not meet the crime of spreading obscene materials for profit. The standard of "profit-making. Judgments that hold this view are: jiang mouyang's case of spreading obscene articles [case number (2019) Zhejiang 0624 punishment no 211], Xiang mourong's case of spreading obscene articles [case number (2018) Zhejiang 0523 punishment no 191], Xie moujia, Liu mou's case of spreading obscene articles [case number (2017) Ji 1181 punishment no 71], Jiang moujuan's case of spreading obscene articles [case number (2018) Zhejiang 0881 no. 238 at the beginning of punishment]]. However, some courts hold that the "profit-making purpose" in the crime of spreading obscene materials includes not only the direct profit by spreading obscene materials, but also the indirect profit by means of spreading obscene materials. The dissemination of obscene materials by the perpetrator is a means to increase product attention and promote products. It is an indirect profit by means of disseminating obscene materials. In addition to this view held by the court of second instance in this case, Zhang moujuan, Zhang mouzhu and others also held this view in the case of making, copying, publishing, selling and spreading obscene articles for profit [case number (2019) zhe 10 punishment final 753]. The author believes that the actor uses obscene materials to attract customers and then sell products, which can not be regarded as the "profit-making" plot in the crime of spreading obscene materials for profit, but can only constitute the crime of spreading obscene materials. The specific reasons are as follows: The use of obscene videos by 1. to attract customers and then sell products for profit does not belong to the situation of using the Internet to spread obscene materials for profit as stipulated in legislation and judicial interpretations. The crime of obscene materials corrupts the social atmosphere, corrupts people's soul, and induces other crimes. Therefore, the criminal law of our country has been increasing its crackdown. Article 170 of the 1979 Criminal Law stipulates that "whoever produces or sells pornographic books or paintings for the purpose of profit shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and may also be fined". At that time, the crime of this article was the crime of making and selling obscene books and paintings. The law did not provide for the production and sale of obscene materials other than obscene books and paintings, and other acts related to obscene materials. Article 2 of the Decision of the Standing Committee of the National People's Congress on Punishing Criminals Who Smuggling, Producing, Selling or Disseminating Obscene Articles (hereinafter referred to as the Decision) of December 28, 1990 stipulates: Whoever, for the purpose of making profits, ...... sells obscene articles shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be sentenced to a fine or confiscation of property. Article 8 of the "Decision" defines obscene materials as "books, periodicals, films, video tapes, audio tapes, pictures and other obscene materials that specifically depict sexual behavior or explicitly promote pornography". The "Decision" changed the object of the crime of making and selling pornographic books and paintings in Article 170 of the 1979 Criminal Law from the original pornographic books and paintings to obscene books, films, video tapes, audio tapes, pictures or other obscene materials. The statutory maximum penalty has also been increased from the original three-year fixed-term imprisonment to life imprisonment, and the provisions on unit crimes have been increased, which has greatly increased the punishment for such crimes. On the basis of the comprehensive absorption of the "Decision" in the Criminal Law of 1997, a crime of organizing obscene performances was added, which also demonstrated the determination of our government to punish the crime of obscene materials. However, in 1997, the criminal law did not specify the standard of "profit-making" when amending the criminal object and sentence of the crime of spreading obscene materials for profit. Until 2004, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases Using the Internet, Mobile Communication Terminals, and Voice Stations to Make, Copy, Publish, Sell, and Disseminate Obscene Electronic Information" (hereinafter referred to as "Interpretation"). Article 1 of the "Interpretation" clearly stipulates: "For the purpose of making profits, those who use the Internet or mobile communication terminals to produce, copy, publish, sell and disseminate obscene electronic information, publish, sell and disseminate obscene electronic information by means of membership system, with more than 200 registered members, or use obscene electronic information to collect advertising fees, membership registration fees or other fees, with illegal gains of more than 10000 yuan, Convicted and punished for the crime of making, copying, publishing, selling or disseminating obscene articles for profit." This provision confirms at the level of judicial interpretation that the dissemination of obscene electronic information for profit includes both direct and indirect profit-making. Among them, direct profit-making means that as long as the perpetrator completes the crime of spreading obscene materials, he can directly obtain illegal profits. The specific manifestations are as follows: first, the perpetrator directly disseminates obscene electronic information through the website to obtain high network fees or short message fees; second, the user registers to join the obscene website and becomes a member through payment to watch or obtain obscene information. Indirect profit-making means that after the perpetrator has completed the criminal act of spreading obscene materials, it is necessary for the perpetrator or a third party to carry out other acts in order to obtain profits. Indirect profit-making is a newer and more popular way of making profits, mainly by providing free obscene information files to attract network users, increase the click-through rate of the website, and improve the popularity of the website, so as to attract advertisers and obtain high advertising fees. Different from the traditional direct profit-making method, the benefits obtained by indirect profit-making do not come directly from obscene materials, but from commercial advertising revenue paid by third parties. The spread of obscene materials plays a role in promoting the generation of benefits. In this case, Zhang Moumou posted obscene video links in multiple WeChat groups he formed, with the intention of increasing popularity and increasing attention to the male health products he sold, thereby creating business opportunities for the sale of legal products and increasing the probability of transactions. The behavior itself did not directly charge the members of the group, nor did it earn high advertising fees. The key to Zhang's profit is the profit from the sale of male health products, which is obviously different from the profit-making method identified in the 2004 interpretation. 2., according to the principle of adaptation of crime, responsibility and punishment, Zhang's behavior should not be identified as the crime of spreading obscene materials for profit. According to the provisions of Article 364 of the Criminal Law, those who spread obscene materials shall be sentenced to a maximum of two years' imprisonment without a fine. As for the crime of spreading obscene materials for profit, because it has the subjective purpose of "making profits", the social harmfulness of its behavior is obviously greater than that of simple communication, and the criminal law has obviously cracked down on it. According to the provisions of Article 363 of the Criminal Law, the legal maximum penalty for the crime of spreading obscene materials for profit can be up to life imprisonment, and at the same time a fine or confiscation of property. It can be seen that whether a certain act of spreading obscene materials can be recognized as having a profit-making purpose becomes the key to determine what kind of crime and what kind of legal punishment is applicable. In this case, Zhang Moumou's use of obscene materials to solicit customers to sell products does not belong to the profit-making situation expressly stipulated in the 2004 Interpretation. Whether it can be recognized as other indirect profit-making methods requires the judge to conduct justice on the "profit-making" plot. Interpretation. According to the requirements of the principle of adaptation of crime and punishment, when we interpret the terms of a crime, we need to consider the statutory penalty stipulated in the law and the severity of the sentence that may eventually be pronounced according to this law, so that the conclusion of the interpretation conforms to the principle of adaptation of crime and punishment. The crime of spreading obscene materials for profit is only because it needs to be "for profit" in the constituent elements, and the statutory penalty is far more important than the crime of spreading obscene materials. For this reason, we should strictly interpret the "profit-making" plot, so as to exclude those minor acts of spreading obscene materials for indirect profit from the crime. The modesty of criminal law is one of its fundamental principles, and penalties can only be used if they are forced to do so, and those who can use lighter penalties should not be sentenced to heavier penalties. Judging from the provisions of the "Interpretation" in 2004, the "profit-making" of the dissemination of obscene materials on the Internet mainly includes two ways: directly charging service fees for the dissemination of obscene materials, and indirectly earning high advertising fees through websites or web pages. Either way, the interests obtained by the perpetrator come from the obscene electronic information or the act of spreading obscene electronic information itself. There is a direct and inevitable causal relationship between the way of making profits and the act of spreading obscene electronic information. In this case, Zhang Moumou, as a micro-trader, set up a WeChat group to continuously add people to the group and publish obscene video links in the WeChat group for group members to browse. The purpose is to expand the audience of the goods sold, increase trading opportunities and increase the sales volume of the goods. In other words, Zhang's publication of obscene materials in WeChat groups does not necessarily lead to an increase in the sales of male health products he sells. Zhang's final benefit comes from the male health products sold, not the obscene materials themselves or the act of spreading obscene materials. There is no direct and inevitable causal relationship between this profit-making method and the act of spreading obscene materials. In addition, in the 1. second instance of this case, the public prosecution organ did not provide evidence to confirm Zhang's actual profit. However, Zhang Moumou used obscene materials in the WeChat group to solicit customers to sell products. The court of first instance found that it constituted the crime of spreading obscene materials and sentenced him to one year and six months. The court of second instance adopted the protest opinion of the procuratorate and held that it constituted the crime of spreading obscene materials for profit, and sentenced Zhang to three years' imprisonment and a fine of 5000 yuan. The different determinations of the same facts by the court of first and second instance made Zhang's sentence very different, which obviously violated the principle of adaptation of crime, responsibility and punishment and the modesty of criminal law. Therefore, the author believes that in the case of Zhang Moumou using obscene videos to solicit customers to promote products, the court of first instance determined that the behavior only constituted the crime of spreading obscene materials. The facts were found to be correct and the applicable law was accurate. Zhang Moumou's judgment on the court of first instance It is also recognized. The court of second instance adopted the protest opinion of the procuratorate to change the crime, believing that Zhang's behavior was an indirect profit-making situation, and then found him guilty of the crime of spreading obscene materials for profit, and sentenced him to three years' imprisonment and a fine of 5000 yuan. The judgment thinking and determination logic of the court of second instance are obviously contrary to the spirit of the 2004 Interpretation, and also violate the principle of consistency of crime, responsibility and punishment and the principle of modesty of punishment, which is an error in the application of law.

2022-04-18

Viewpoint | Effective Defense of a Case of Compulsory Indecency and Insult-Whether the Original Match Catches Rape, Beatings Naked "Little Three" and Videotapes Constituting Crime

Brief of the case Bai (female) and Wang (male) have been married for many years, and have a daughter, Xiao Wang, who is an adult. Bai and Wang have a bad relationship in recent years and often quarrel. Later Bai went to her daughter's home to live because she took care of her children for her daughter Xiao Wang. In early 2020, Bai learned that her husband, Wang, was outside and often took the woman to spend the night at home. On the evening of April 1, 2020, after confirming that Wang and "small three" were sleeping at home, Bai, in order to collect evidence of her husband's marital infidelity, contacted her daughter Xiao Wang and nephew Li and other relatives and friends 4 men and 4 women to catch rape at home. Xiao Wang climbed into the room from the balcony of his neighbor's house to open the door without using the key. Nine people rushed into the room. Bai and Xiao Wang beat the "mistress" and prevented him from putting on clothes and blocking his private parts to keep him naked all the time. Li recorded the whole process of nudity and humiliation of the "mistress" for about 30 minutes, the rest are responsible for controlling Wang mou to prevent him from resisting and for the whole process. Video recording. Xiao Wang and others took the initiative to call the police in order to leave smoothly, considering that Wang had a tendency to violence. After forensic identification, "Xiao San" suffered facial contusion, soft tissue swelling caused by external force, accompanied by scattered skin scratches on the face and trunk, and the degree of injury was minor. The public security organ filed a case for investigation on suspicion of compulsory indecency and insult by Bai, Xiao Wang and Li, and then transferred the case to the procuratorate for examination and prosecution. Case handling results The author accepted the entrustment at the stage of examination and prosecution. After reading the papers, the author thinks that the behavior of Bai and others does not constitute the crime of compulsory indecency or compulsory insult. Although the public security organ can accept the alarm affairs, it should not put the case on file for investigation as a criminal case. Based on the above analysis, after forming a written defense opinion, the author communicated with the undertaking prosecutor many times and submitted a legal search report on similar cases. Finally, the undertaking prosecutor adopted the above opinions of the author, believing that Bai and others did not constitute the crime of compulsory indecency and insult, and returned the case to the public security for withdrawal. Of course, the author's defense point of view will only play a role if it is adopted and accepted by the undertaking prosecutor, and the undertaking prosecutor's adherence to the principle of "taking facts as the basis and the law as the criterion" and fairness and justice is the ultimate fairness of Bai and others. The fundamental guarantee for handling. defense thinking The news that the original match took people to catch rape and beat "mistress" in public often appeared on the Internet. The author conducted legal searches through big data and found that the judicial practice was not the same for this kind of behavior. Some courts believed that violence was used. The method openly insulted women in public, and the circumstances constituted a crime of compulsory insult; some courts believed that the act constituted a crime of insult and was a private prosecution case; some courts believed that this act was a crime of compulsory indecency. The public security organ transferred the case to the procuratorate for examination and prosecution on suspicion of compulsory indecency and insult. The author believes that the crime of compulsory indecency and insult is a selective crime, and Bai's behavior involved in the case is neither compulsory indecency nor compulsory insult. Looking at the whole process of the incident, we can see that Bai was very angry about her husband Wang's infidelity during his marriage and wanted to sue for divorce. He gathered his daughter and others to collect divorce evidence by catching rape in bed. At the time of the incident, someone was responsible for controlling Wang, and someone was responsible for filming the entire process. Bai beat the "little three" in anger and prevented him from wearing clothes and kept him naked for about half an hour. It can be said that the basic facts of this case are relatively clear. The author believes that whether Bai and others constitute the crime of compulsory indecency and insult depends on whether Bai and others subjectively have the criminal intention of "pursuing sexual stimulation and sexual satisfaction" and objectively Whether it infringes on the sexual autonomy of the "little three. Analysis of the charges involved According to the provisions of Article 237 of the Criminal Law of our country, the crime of compulsory indecency and insult refers to the act of forcibly molesting others or insulting women by violence, coercion or other means against the will of the victim. The object of the crime of compulsory indecency and compulsory insult is the victim's right to decide on sexual freedom. The crime of compulsory indecency and insult is a selective crime in form. In theory, it can be identified as a complete crime, and the "compulsory indecency" and "compulsory insult" can be convicted separately. However, the author believes that there is a certain rank relationship between "compulsory indecency" and "compulsory insult". Of course, indecency hurts women's sexual shame and personal dignity in sexual health, so it must "insult" women at the same time. For those whose behavior means and circumstances are related to "indecency" but slightly lower than "compulsory indecency", the "crime of compulsory insult" can be determined separately ". Although it is not stated in the law that the crime should be constituted "for the purpose of pursuing sexual stimulation and sexual satisfaction", both in theory and in practice, it is required that the crime should be constituted subjectively "for the purpose of pursuing sexual stimulation and sexual satisfaction", that is, the actor has a specific stimulation and the tendency to satisfy sexual desire is a necessary condition for the crime. analysis of the case (I) Bai and others entered the house to "catch rape" in order to collect evidence of divorce, the various acts involved in the case were to vent their anger, did not have the purpose of pursuing sexual stimulation and sexual satisfaction, and did not meet the constitutive elements of the crime of compulsory indecency. The cause of this case is that Bai mou wanted to collect evidence of her husband's infidelity for divorce because her husband had an extramarital affair with the victim. considering that her husband was irritable and had committed domestic violence against him, Bai mou found his daughter Xiao Wang and other relatives to help "catch rape" and collect evidence. At the time of the crime, Bai saw her husband sleeping naked with the victim in his own home. Bai opened the quilt, and then controlled the victim with Xiao Wang and others, abused, pulled, prevented him from wearing clothes, and arranged for someone to take nude photos of the naked victim. This case is dominated by Bai. Xiao Wang is his daughter. He participated in the case out of the motive of helping his mother teach the "little three". The other people present were Bai's relatives and friends, and the victim was taught out of the idea of helping Bai. Although Li was a male, he was only responsible for taking photos and videos at the time of the crime, and did not have physical contact with the victim. "Indecency" is interpreted as "promiscuous and indecent actions" in the "Modern Chinese Dictionary". Compulsory indecency emphasizes personal contact to a certain extent. Judging from the course of the case, it is mainly Bai who has physical contact with the victim in this case. In this case, the closest action to "indecency" is Bai's "grabbing the lower body" and "touching the breast" of the victim. However, Bai, as a derailed woman, did not allow the naked victim to wear clothes, abuse, beat, grab the lower body, touch the breast and other acts at the scene of "catching rape", which was motivated by anger and subjective purpose. It is to derogate the victim's personality and reputation. No matter Bai himself or Xiao Wang and other criminal suspects had no sexual thoughts about the victim at the time of the crime, and subjectively did not have the intention to satisfy the obscene and shameless hooligan psychology. Therefore, the behavior of Xiao Wang and others does not meet the constitutive elements of the crime of compulsory indecency. (II) the behavior of Bai and others does not meet the constitutive elements of the crime of compulsory insult. In the "Modern Chinese Dictionary", the word "insult" has only one meaning, that is, "to damage the personality or reputation of the other party and suffer shame", but "insult" is given a different meaning in the criminal law. The "insult" in the crime of insult in Article 246 of the Criminal Law uses the general meaning of the term, that is, the infringement of citizens' general personal dignity, focusing on the protection of citizens' right of reputation. The crime of compulsory insult stipulated in Article 237 of the Criminal Law is separated from the crime of hooliganism in the Criminal Law of 1979. From its historical evolution and its position in the whole criminal law system, it can be seen that the crime of compulsory insult belongs to the crime of infringing on sexual rights and sexual health, focusing on the personal interests and dignity of women's right to decide on their own sex, the "insult" in the count of the crime should be understood as being related to "indecency" or at least equivalent and equivalent in guilt. Different from the insult in the crime of insult, the act of compulsory insult will of course damage and humiliate the other party's personality or reputation, but the crime is limited to the behavior of the perpetrator related to the right to sexual health for the purpose of sexual stimulation and sexual satisfaction. From the point of view of the object of the crime, the crime of compulsory insult is that the perpetrator commits a crime out of hooligan motive, and its object is an unspecified woman, who is randomly selected in the commission of the crime. In this case, Bai and others collected evidence of her husband's infidelity for the purpose of "catching rape", and the object of the violation was specific. From the subjective aspect of the crime, Bai did not insult the victim out of a hooligan motive seeking stimulation. The location of the crime was Bai's own home, which objectively did not endanger the social management order. Bai's purpose was not to accomplish his own hooligan purpose, but only to derogate the victim's personality, venting anger. Therefore, in this case, the behavior of Bai, Xiao Wang and others is based on venting revenge and insulting the victim, making him embarrassed, damaging his reputation and lowering his social evaluation. The object of this behavior is specific. Bai, Xiao Wang and others subjectively do not have the hooligan motive and purpose of pursuing sexual stimulation and sexual satisfaction, and their behavior does not meet the constitutive requirements of the crime of compulsory insult. (III) the behavior of openly insulting others must reach the degree of seriousness to constitute the crime of insulting. The behavior of Bai and others has not reached the degree of seriousness and does not constitute the crime of insulting. According to Article 246 of China's Criminal Law, the crime of insult "refers to the use of violence or other means to openly derogate the personality of another person, damage the reputation of another person, and the circumstances are serious. The crime of the preceding paragraph shall be dealt with only if told, except for those that seriously endanger social order and national interests." The crime of insult violates the object of abstract human dignity and reputation right; the subjective aspect of the perpetrator is generally motivated by revenge, jealousy, and anger, with the purpose of belittling the personality of others and destroying their reputation. Although there is an act of blatant insult to others, it does not belong to the serious circumstances, but only belongs to the general civil tort, that is, the act of blatant insult to others must reach the serious degree to constitute the crime of insult. The so-called serious circumstances, mainly refers to the means bad, serious consequences and other situations. In this case, Bai witnessed her husband sleeping naked with the victim on the spot, and his behavior was out of control. He carried out various humiliating behaviors to the victim. Subjectively, he wanted to make the victim make a fool of himself, mainly out of anger and revenge. The victim in this case knew that Wang was married and still had an improper relationship with him for a long time, destroying other people's families, and had a major fault for the occurrence of this case. Moreover, the case occurred in Bai's own home, which was a closed space. Although Bai and others took photos and videos of the incident, they did not upload the photos and videos to the Internet or forward them to social platforms, it did not cause the victim's social evaluation to be reduced on a large scale, nor did it cause consequences that harmed the public order and national interests. In addition, although Bai and others have beaten the victim, they only cause the harmful consequences of minor injuries to the victim. After the incident, Bai took the initiative to contact the victim, actively compensated the victim and obtained understanding. This case was caused by the intensification of marriage and family conflicts. Bai was unable to correctly handle the marriage crisis. In order to vent his anger and retaliate, the act of "catching rape" violated the law. Considering the circumstances of this case and the victim's own fault, the behavior of Bai and others has not yet reached The degree of seriousness should not be recognized as constituting a crime of insult.

2022-04-06

Examples of retrial | Can the parties apply for retrial and file a protest against the retrial judgment?

Brief description of the case In the case of a private lending dispute between Zhang and Zhao, Zhang lent ten million yuan to Zhao in 2012 without agreeing on interest. During the loan period, both parties paid interest at 20% of the annual interest rate. During the period, the two parties had other economic exchanges. In 2018, the two parties re-issued a debit note, recording that Zhang lent RMB 10 million to Zhao, with no agreed interest, and in actual performance, Zhao repaid a fixed amount of RMB to Zhang every month (for which the two parties are in dispute over whether the principal or interest of the repayment). After the dispute between the two sides, in 2020 Zhang as a creditor to the people's court to claim the remaining loan principal and interest. Zhao filed a counterclaim, requesting a judgment on Zhang's return of the over-paid loan and interest. After the case was heard by the 1. court of second instance, the court of second instance upheld the judgment of first instance and ordered the debtor Zhao to pay the remaining principal and interest of the loan. Zhao believes that the second trial judgment is wrong and applies to the court for a retrial. After accepting Zhao's application for retrial, the people's court rejected his application for retrial. Zhao still refused to accept the judgment of the second instance and applied to the people's Procuratorate for procuratorial supervision. The people's Procuratorate filed a protest with the court. After the retrial of the trial supervision procedure, the people's court revoked the judgment of the second instance and changed the judgment that Zhang returned the principal and interest of the overpaid loan to Zhao. Creditor Zhang is not satisfied with the retrial judgment. At this time, can Zhang apply to the court for retrial or protest to the people's procuratorate? Is there any other remedy? 1. in this case, Zhang cannot apply to the court for a retrial, nor can he apply to the procuratorate for a protest After the judgment of the second instance of the (I) comes into effect, the appellant, the appellee and other parties to the case have the right to apply for a retrial in accordance with the law for the judgment and ruling of the second instance that has taken effect. Both parties may have the right to apply for a retrial within the statutory time limit. If both parties apply for a retrial, the retrial court shall examine the case together and make a judgment. When one party applies for a retrial within the statutory period and the other party fails to apply for a retrial within the statutory period, its right to apply for a retrial has been extinguished due to the expiration of the statute of limitations. After the termination of the trial supervision procedure caused by one party's application for retrial, the procedural rights of all parties to apply for retrial against the legally effective second-instance judgment and ruling have been eliminated, and the other party will not reserve the right to apply for retrial to the retrial court for another time because the other party has not exercised the right to apply for retrial within the statutory period. Therefore, once the retrial judgment is made, neither party has the right to apply for retrial. Article 383 of the Interpretation of the Supreme People's Court of the (II) on the Application of the the People's Republic of China Civil Procedure Law (2020 Amendment) stipulates that "If a party applies for retrial under any of the following circumstances, the people's court shall not accept it: 1. The application is filed again after the application for retrial has been rejected; 2. An application for a retrial judgment or ruling; 3. The application is filed after the People's Procuratorate has made a decision not to submit a retrial procuratorial proposal or protest against the application of the party. Under the circumstances specified in items 1 and 2 of the preceding paragraph, the people's court shall inform the parties concerned that they may apply to the people's procuratorate for retrial procuratorial suggestions or protests, except for judgments and rulings made in retrial due to the people's procuratorate's retrial procuratorial suggestions or protests." The above provisions are the legal basis for the retrial judgment not to apply for retrial, nor to apply to the procuratorate to protest. Combined with this case, because Zhao was not satisfied with the judgment of the second instance, he applied to the court for retrial. After the people's court rejected his application for retrial, he applied to the people's Procuratorate for protest. The protest organ believes that there is an error in the judgment of the second instance, and after submitting a protest to the people's court, the people's court initiates the trial supervision procedure and changes the judgment. The respondent Zhang believes that the facts of the court of second instance are clear and the legal evidence is applicable. Zhang is not satisfied with the retrial judgment and cannot apply for retrial or apply to the procuratorate for protest. 2. on the way to initiate retrial proceedings ex officio The retrial procedure is an important way for the people's court to correct errors. The retrial procedure can be initiated on application, by the procuratorate, or ex officio. The method of initiation is different, and the trial supervision procedures applied are also different. Article 205 of the the People's Republic of China Civil Procedure Law (amended in 2021) stipulates that "if the presidents of the people's courts at all levels find that there are definite errors in the judgments, rulings or conciliation statements that have taken legal effect in their courts and believe that a retrial is necessary, they shall submit them to the adjudication committee for discussion and decision. If the Supreme People's Court finds that there is a definite error in a legally effective judgment, ruling or mediation statement of a local people's court at all levels, or a people's court at a higher level finds that there is a definite error in a legally effective judgment, ruling or mediation statement of a people's court at a lower level, it shall have the right to bring it up for trial or instruct a people's court at a lower level to retry". The provisions of this article are that the court initiates the retrial procedure according to its functions and powers. If the president of the court discovers a legally effective judgment, ruling or mediation statement and finds that there is a definite error, the president shall submit it to the members of the judicial committee for discussion and decision; if the people's court at a higher level finds that there is a definite error in a legally effective judgment, ruling or mediation statement of the people's court at a lower level, it shall have the right to bring the right to trial or instruct the people's court to retrial. Specifically in this case, the creditor Zhang is not satisfied with the retrial judgment made through the procuratorate's protest, and may not apply for retrial, nor may he apply for the procuratorate's protest. If the retrial judgment is indeed wrong, the president finds that the retrial procedure is initiated. In practice, the president finds that the retrial procedure is started. First, the parties concerned should submit the application form and relevant evidence. After the president of the court finds that there may be errors in the original effective judgment, he submits it to the trial committee for discussion. The trial committee decides that the retrial of the case is based on the trial supervision procedure, it is not an inevitable procedure, let alone a way to initiate a retrial based on the subjective judgment of the parties. Finally, if the parties are not satisfied with the effective judgment and want to start the trial supervision procedure through the president, how to submit the materials and in which way to receive the materials are not completely unified by the local courts.

2022-03-21

Point of View... The (III) of the rules of the mortgage period.

(Continuously) 2. From the General Principles of Civil Law to the Interpretation of the Guarantee System: the legislative evolution during the exercise of mortgage in China. (I) initial stage The General Principles of Civil Law, promulgated in 1986, do not provide for the period during which the mortgage is exercised, but only three provisions describe the types of prohibited collateral and the manner in which the secured obligation is performed-the mortgage. In 2005, the "Guarantee Law" was promulgated, which changed the position of the "General Principles of Civil Law" on mortgage, redefined the meaning of mortgage from the perspective of the civil law system, and proposed for the first time in Article 52 of this law that the mortgage and its secured creditor's rights "co-exist and co-exist". It is precisely because of the emergence of this clause that it leaves room for discussion on the definition of the nature of the mortgage during the exercise period. In addition, the General Principles of Civil Law does not set up a chapter on the General Principles of the Law of Debt, and in practice, the "general provisions" on the termination of rights and obligations under the Contract Law are often regarded as the general cause of the extinction of the debt, but the "general provisions" do not include "the loss of the right to prevail on the principal claim due to the expiration of the statute of limitations" as one of the circumstances in which the extinction of the claims. According to the provisions of "co-existence and co-extinction", the mortgage is still in existence at this time, and the general principles of civil law do not give a clear answer on how to deal with it after the mortgagor invokes the creditor's limitation defense. In 2000, the "Interpretation of Guarantee Law" was issued. Article 12 for the first time specifies the period of mortgage exercise, that is, "within two years of limitation of main creditor's rights". The author thinks that the above period should be divided into two periods for calculation. The first period is the limitation of action for main creditor's rights. Although the legislation does not clearly stipulate that the mortgage in this period is subject to the suspension, interruption and extension of the limitation period of main creditor's rights, however, some scholars, taking into account the basic principles of civil law, define this period as the period of exclusion, during which the mortgage is extinguished upon the expiration of four years (including the second period); others believe that it is a statute of limitations and should be understood as the "period of exclusion of the statute of limitations (the second period)", but agree that the second period is the "period of exclusion". What is to be explained here is that the second period does not belong to the limitation of execution. Before the Interpretation of Guarantee Law was promulgated, a review of the legislative evolution of China's Civil Procedure Law found that Article 169 of the 1982 Civil Procedure Law (Trial) and Article 219 of the Civil Procedure Law promulgated in 1991 are "six months" and "one year", which have nothing to do with the two-year exclusion period. Some scholars believe that this article draws on the provisions of civil law in Taiwan. In addition, the article only provides for "support", and no explanation is given as to whether "non-support" should be understood as "not protected by law" or "the mortgage is extinguished. (II) development stage Before the promulgation of the Property Law in 2007, there were four versions of disputes regulating the duration of mortgage. The legislation finally chose to delete the two-year exclusion period mentioned above, shortening the period of mortgage exercise from "within two years of limitation of the main creditor's right" to "within the limitation of action of the main creditor's right", so that the nature of the dispute was retained in the first period of discussion. At the same time, "support" is expressed as "not protected", this change in legislative language does not really solve the question of whether the mortgage is extinguished, but leaves the difficult question of whether the mortgagor can apply for the mortgagee's assistance in canceling the mortgage registration. Based on this, the following three kinds of judgment results are mainly obtained through the investigation of practical cases: first, the limitation of action of the mortgage right due to the main creditor's right has not been eliminated, and the mortgagee has no obligation to assist the mortgagee to cancel the mortgage registration; Second, the limitation of the mortgage right due to the main creditor's right has not been eliminated. In order to maintain the normal use and circulation of the mortgage and create greater social value, the mortgagee, the mortgagor shall have the right to apply for the cancellation of the registration of the mortgaged property. In addition, in 2014, the Jilin Provincial Higher People's Court issued the "(I) on Answers to Some Difficult Questions in Commercial Trials". The reply to question 28 clearly stated that the mortgage right due to the limitation of action of the main creditor's rights had not been eliminated. At the same time, it cleverly avoided the existing legislative gaps and proposed another way to cancel the mortgage registration. The mortgagor could sue for the termination of the mortgage contract as stipulated in Item 1 of Article 110 of the Contract Law. After the court decides to terminate the mortgage contract, the mortgagor may apply for cancellation of the mortgage registration with the judgment. Through the above combing, it is known that in this period of judicial practice, different levels of courts "different judgments in the same case" phenomenon, the purpose of mortgage setting is difficult to achieve at the same time so that both parties trapped in the mortgage relationship can not get rid of, and finally a "lose-lose" situation. (III) perfection stage In view of the difficult disputes at the forefront of civil and commercial trials, in order to unify the thinking of adjudication, standardize the discretion of judges, and enhance the openness, transparency and predictability of civil and commercial trials. The Supreme People's Court promulgated the "Minutes of the National Court Civil and Commercial Trial Work Conference" (hereinafter referred to as the "Minutes of the Meeting") in 2019, in which Article 59 clearly stipulates "the legal consequences of the mortgage right after the statute of limitations of the main creditor's rights", That is, the right to cancel the registration request is based on the premise of "the elimination of the mortgage right. However, we need to note that the Minutes of the Meeting do not belong to judicial interpretation and cannot be invoked as a basis for adjudication, but can only be invoked in the specific analysis of the reasons for the application of the law in the "opinion of this Court" part of the adjudication document. The Supreme Court, on the premise that it is unable to interpret the law in accordance with the existing context, amended the provisions of Article 202 of the Property Law by way of judicial guidance, which is undoubtedly a regulation of the phenomenon of "different judgments in the same case", with a view to the correct understanding and application of the minutes of the meeting by courts at all levels in the trial of the case. When the Civil Code was promulgated in May 2020, and the academic and practical circles criticized that it was still following the legislative model of Article 202 of the Property Law, the promulgation of Article 44 of the Interpretation of the Guarantee System made a new interpretation of Article 119 of the Civil Code, resulting in a new meaning of the period of exercise of the mortgage, the scope of application and the effect. However, there are also differences brought about by the differences in the legislative terms of "no protection" and "no support", and how to connect the "elimination of mortgage" adopted in the Minutes of the Conference and the "occurrence of defense" adopted in the Civil Code. Basic relationship between the period during which the 3. mortgage is exercised and the statute of limitations and enforcement of the principal claim (see next issue)

2022-02-21

Point of View... The (II) of the rules of the mortgage period.

Discrimination and Analysis of 1. Related Concepts (I) Mortgage Period and Mortgage Term Exploring the relationship between the mortgage period and the term of the mortgage is essentially a discussion of the difference between "term" and "period. What is the period and duration? The modern Chinese dictionary says that the former is "a certain period of time", and the latter is "a limited time, which also refers to the final limit of the limited time". From the legal point of view, "duration" refers to the time that causes the occurrence, change and elimination of civil legal relations. Combined with the meaning of the dictionary, it should be divided into period and duration, the former refers specifically to the time elapsed from a particular point in time to another particular point in time, a particular period of time (dynamic phase) on the expiry date of the spot date, while the latter refers specifically to a particular point in time, or a certain time that is indivisible (static point). From this point of view, the expression of the period of exercise of the mortgage may cover two meanings, one is the period of exercise of the mortgage, that is, the provision of a certain period of time. The second is the date of exercise of the mortgage, that is, a certain period of time. The specific meaning still needs to be examined in the context of the specific context, and if it refers only to a period of time, the expression of the period during which the mortgage is exercised may be more appropriate than the expression of the period during which the mortgage is exercised. (II) statute of limitations and mortgage period From a broad point of view, the statute of limitations, that is, the legal system in which the right holder's failure to exercise his rights within the statutory period will result in the obligor's right to file a defense of refusal to perform, should be attributed to the components of the period, both of which can be understood as the time that leads to the creation, change and elimination of civil legal relations. At this time, the period can be understood as including the period of limitation of action, the period of mortgage, the period of avoidance, etc.; from a narrow point of view, the limitation of action is not part of the period, but is outside the period, different from the period during which the right holder exercises the right or the obligor performs the obligation. At this point, the statute of limitations is juxtaposed with the period, which, of course, includes the guarantee period, the mortgage period, the period during which the right of avoidance is exercised, and so on. According to the current system, the current legislation of our country adopts the broad concept of period, and regards the statute of limitations as a specific period. (III) the period of exercise of the mortgage and the period of the mortgage, the period of the mortgage. The legislation related to the period of exercise of mortgage in the Property Law and the Interpretation of the Guarantee Law shall be invalidated after the entry into force of the Civil Code, but its provisions are still of reference to the existing legislation and judicial practice. Although the "mortgage period" mentioned in Article 191 of the Property Law is different from the "mortgage period" mentioned in Article 67 of the Interpretation of the Security Law, from the perspective of system interpretation, both refer to the period from the establishment of the mortgage to the extinction of the mortgage. Article 419 of the Civil Code adopts the legislative model of the Property Law, and the "mortgage period" should also be understood according to the above meaning. The author believes that the mortgage period (or the duration of the mortgage right) includes the "vacant" period of the mortgage right, the exercise period of the mortgage right and the "natural" period of the mortgage right. The "vacant" period refers to the period from the registration of the real estate mortgage right or the entry into force of the chattel mortgage contract to the expiration of the liquidation period of the secured principal creditor's rights; the exercise period of the mortgage right should be understood as "effective duration" in essence ", means the period from the expiration of the period of liquidation of the secured principal claim to the expiration of the statute of limitations for the secured principal claim; the" natural "period of the mortgage is the period from the expiration of the statute of limitations for the secured principal claim to the extinction of the mortgage. If the mortgagor does not invoke the limitation defense, but waives the limitation defense through judicial proceedings, the conclusion of an agreement to realize the mortgage, the creditor's own auction, the sale of the mortgaged property, etc., the effective duration of the mortgage includes the "natural" period of the mortgage, that is, until the mortgage is extinguished. Since it is impossible to predict whether the effect of exclusion of enforcement will occur, it would be inappropriate to extend it to the point of extinction of the mortgage in a state of uncertainty. In summary, whether the mortgage period or the duration of the mortgage includes the effective duration of the mortgage, the three overlap in time stages, but there are differences in the determination of the starting and ending points and the termination points. Period of exercise of (IV) mortgage and period of exclusion In addition to the period of reprimand, in addition to the meaning of exclusion, rebuke, rebuke, rebuke words, means that the right due to the expiration of the period and extinguished, also known as the predetermined period, unchanged period, duration and so on. What we want to explain here is that although the exclusion period is also called the duration, the meaning of the two is not exactly the same. The exclusion period can be called the duration, such as the "revocation period" mentioned in Article 152 of the Civil Code, the "duration of agreed rights" mentioned in Article 199, and the "duration of debt repayment period" mentioned in Article 28 of the Sole Proprietorship Law. However, the duration does not specifically refer to the period except the denunciation period, for example, "during the existence of a legal person" as described in Chapter III of Title I of the Civil Code, and "during the existence of a marriage relationship" as described in Title V. In other words, the duration includes the period of exclusion, the period of exercise of the mortgage, etc. What is the relationship between the period of exclusion and the period of the exercise of the mortgage, it is necessary to define the nature of the period of the exercise of the mortgage, the academic and practical circles have always had great differences on this, the author will focus on the following.

2022-02-17

Point of View... The (I) of the rules of the mortgage period.

Abstract From the point of view of the interpretation of the civil law system, the meaning of the mortgage period and the duration of the mortgage convergence, but different from the effective duration of the mortgage, the mortgage "period" and the mortgage "term" is synonymous with the specific context. Legislative amendments and improvements so far, the nature of the term of the exercise of mortgage rights is still controversial, the statute of limitations, except for the period of rebuke, from the attribute theory and other theories came into being, the universities said each has its own advantages, the academic community and even the judicial practice community has not formed a unified conclusion for a long time. The inconsistency of the legislative terms "no protection" and "no (to) support" related to mortgage rights also causes great ambiguity. After the mortgaged immovable property (or movable property) has been lost, damaged or expropriated, the "guarantee substitute" has been obtained. At this time, the mortgage exercise period rules should be extended to the "guarantee substitute" and continue to apply; if the "guarantee substitute" is not obtained, both parties will mortgage other immovable property (or movable property) again. In order to achieve a balance of interests between the creditor and the mortgagor, the legislation should clarify the corresponding mortgage exercise period of the "second mortgage, rather than simply discussing the" period of exercise of the mortgage "on the basis of the existing Civil Code and the Interpretation of the Security System". Introduction According to the current system, from the "duration of mortgage" mentioned in the Interpretation of the Security Law to the "duration of mortgage" mentioned in the Property Law to the "duration of mortgage exercise", "duration of mortgage exercise" and "duration of effective mortgage" mentioned in academic and even practical circles, do the above expressions mean that the concepts are the same, and how should they be distinguished if different concepts are recognized? What is the relationship between different concepts? After the distinction, we look back on the legislative history of the "time limit for the exercise of the mortgage right" and find that the Security Law promulgated in 1995 did not stipulate the time limit for the exercise of the mortgage right, and the Interpretation of the Security Law in 2000 explicitly stipulated the time limit for the exercise of the mortgage right as "within two years of the limitation of the principal claim". After a lapse of seven years, the promulgation of the "Property Law" broke the original legislative model, shortening "within two years of the limitation of the main creditor's rights" to "within the limitation period of the main creditor's rights". At the beginning of the promulgation of the "Civil Code", the legislative model of the "Property Law" was also adopted. However, with the promulgation of the "Interpretation of the Guarantee System", the period for the exercise of mortgage has been given a new definition. After such a long period of legislative amendments and improvements, has the existing legislation failed to add new diseases to the old ones? Has the nature of the period of exercise of the mortgage been clearly defined? Are the legal consequences of not exercising within the statutory period sufficiently clear? How to clarify the relationship between the period of exercise of the mortgage and the limitation period of the main claim and the limitation period of execution? On the basis of conceptual analysis and legislative evolution, how should we understand the provisions of existing legislation on "no (to) support" and "no protection? In the event that the collateral is lost, damaged without compensation (compensation, insurance) or the value of the collateral is reduced, the parties again set up a mortgage on another immovable property (or movable property), how to connect the original immovable property (or movable property) mortgage period with the existing immovable property (or movable property) mortgage period? This paper hopes to explore and tentatively give the answer or solution to the corresponding problem from the fuzzy zone of the existing legal regulation.

2022-02-17

The civil and commercial perspective... How to determine the ownership of the house at the time of divorce.

Briefing Li Jun (male) and Wang Yi (female) are both post-90s and will get married in 2019. Having a son in 2020, due to the low income of the couple after marriage, they are unable to buy real estate, and Li Jun's hometown is in the countryside, and their parents are unable to help them realize their housing dream. In October 2021, considering their children's schooling, Wang Yi's parents decided to pay a down payment for their only daughter, purchase a school district house, and register it in the names of both parties, and the couple will repay the loan on a monthly basis. In February 2022, Wang Yi believed that the relationship between husband and wife had broken down and wanted to sue the court for divorce, requesting to determine that the ownership of the house belonged to him. Wang Yi consulted the author: Will Wang Yi's claim be supported by the court? Lawyer Analysis Because Wang Yi sued for divorce after the Civil Code came into effect, the provisions of the Civil Code should be applied in this case. According to the relevant provisions of the the People's Republic of China Civil Code, the school district house was purchased by Li Jun and Wang Yi after their marriage and Wang Yi's parents made a down payment for both parties. Li Jun, Wang Yi and Wang Yi's parents did not sign any agreement on the ownership of the house, and Wang Yi had no evidence to prove that the house was a gift to one of them. Because the property is the property donated by Li Jun and Wang Yi during the marriage relationship, it should be recognized as the joint property of husband and wife. Simply put, if there is no agreement, the purchase of a house before marriage is the property of one individual, and the purchase of a house after marriage is the joint property of the husband and wife. In this case, although Wang Yi's mother believed that she had made a down payment to buy a school district house for her daughter, the house should belong to her daughter, and the other party could be compensated for the repayment. However, according to the the People's Republic of China Civil Code and judicial interpretation, the author believes that the law should be recognized as the joint property of husband and wife. Views of the People's Court of the Supreme Court In judicial practice, it often happens that parents pay part of the price (often the down payment) for the purchase of a house for their children after marriage, sign a contract for the sale of the house in the name of the child and register the ownership of the house in the name of one child or the children of both parties, if the two parties do not agree or the agreement is not clear, the down payment of the capital contribution shall be recognized as a gift to both husband and wife in accordance with the principle stipulated in paragraph 4 of Article 1062 of the the People's Republic of China Civil Code. Accordingly, the real estate purchased with the capital contribution as a down payment, whether registered in the name of one of the children or both, shall be regarded as the joint property of the husband and wife. Under normal circumstances, during the existence of the marriage relationship between the parties, one or both parents make a capital contribution to the purchase of a house for both parties, except for the case where the parents clearly indicate that the capital contribution is a gift to their children to purchase a house, according to the principle of the legal joint property system of husband and wife, it should be recognized as the joint property of husband and wife. When the people's court determines the ownership of property after marriage, the people's court shall first apply the legal principle of the joint system of marital income after marriage, that is, the property acquired by one or both of the husband and wife during the marriage relationship belongs to the joint property of the husband and wife. Secondly, it is determined whether it is owned by the husband or wife according to the exclusion. This is also the general principle of the treatment of property acquired by the couple during the marriage. Risk Alert First of all, sign an agreement to give their children and agree on the nature of the contribution. In recent years, the rising house prices to young couples to buy a huge pressure. When young couples buy a house, it is common for capable parents to help their children make up the down payment and for young couples to repay the loan together. In most cases, parents are often because of their feelings. When buying a house for their children, they will not clearly agree on the nature of their capital contribution, nor will they sign relevant agreements with their children. As a result, when their children divorce, the two parties will have a problem with the ownership of the house. Dispute over the issue. In order to prevent risks, the author suggests: when buying a house after marriage, if one of the parents contributes, it is best for the parents, children and children's spouse to sign a written agreement together, clearly agreeing on the nature of the contribution, whether it is a loan or a gift. If it is a loan, you need to agree on a repayment period and interest. If it is a gift, it is also necessary to agree whether it is a gift to one's own children or to both husband and wife. Otherwise, once a divorce occurs, it will be determined as the joint property of the husband and wife according to the provisions of the law and judicial interpretation. Secondly, when signing the agreement, we should pay attention to distinguish whether the parents' contribution is partial or full. The judicial interpretation of the original "the People's Republic of China Marriage Law" stipulates different attribution for the purchase of a house with partial capital contribution and full capital contribution by the parents, but the "Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Section of the the People's Republic of China Civil Code" does not clearly stipulate, and the author suggests that when signing an agreement, attention should also be paid to distinguish between full capital and partial capital contribution. Links to relevant laws 1. Article 29 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that before the parties get married, if the parents contribute to the purchase of houses for both parties, the contribution shall be recognized as a personal gift to their children, except where the parents explicitly indicate that the gift is given to both parties. After the parties get married, if the parents contribute to the purchase of houses for both parties, they shall be dealt with in accordance with the agreement; if there is no agreement or the agreement is not clear, it shall be dealt with in accordance with the principles stipulated in the fourth paragraph of Article 1062 of the Civil Code. 2. Article 1062 of the the People's Republic of China Civil Code stipulates that the following property acquired by the husband and wife during the existence of the marriage relationship shall be the joint property of the husband and wife and shall be jointly owned by the husband and wife: (I) wages, bonuses, remuneration for labor services; income from (II) production, operation and investment; income from the (III) of intellectual property rights; property inherited or donated by the (IV), except as provided for in paragraph 3 of Article 1063 of this Law; (V) other property that should be jointly owned. Husband and wife have equal rights to dispose of common property.

2022-02-15

Legal Application Practice. The priority of advance registration in banking business from the perspective of the Civil Code (below)

Abstract: The Supreme People's Court on the application<中华人民共和国民法典>After the promulgation of the Interpretation of the Guarantee System (hereinafter referred to as the "Interpretation of the Guarantee System"), the advance notice registration and this registration have been fully connected. Under the circumstances that the building has the conditions for the first registration of ownership, the advance notice registration is valid and the property registered in advance notice is consistent with the property registered for the first time, it is presumed that the obligee of the advance notice registration has the same effect as that of mortgage registration. Advance registration presumption of the establishment of a mortgage, the effectiveness of the stage guarantee. Typically, in order to secure the realization of the creditor's claim, the developer or the security company is often liable for the creditor in stages during the period from advance registration to mortgage registration. After the interpretation and implementation of the security system, if the provisions of Article 52 are met, the mortgage is presumed to be established and the creditor has priority. At this time, there are two major controversies in practice regarding the disposition of phased guarantees: 1. One view is that the stage guarantee of the developer or guarantee company and the creditor's acquisition of real estate mortgage belong to the undertaking relationship, and if the creditor obtains the mortgage right, the stage guarantee liability is exempted. Such: (1) Qingdao Intermediate People's Court of Shandong Province (2021) Lu 02 Min Zhong No. 8922: Liu Xia, Qingdao Green City Huajing Real Estate Co., Ltd. and Industrial Bank Co., Ltd. Qingdao Branch Financial Loan Contract Dispute Civil Second Instance Civil Case Judgment "The original intention of the establishment of the phased guarantee is to reduce the risk of debt settlement due to incomplete registration of formal property rights, to encourage developers to complete the development and construction of projects in a timely manner, and to actively assist in the registration of property rights. In this case, Greentown Huajing Real Estate has submitted evidence to prove that it has fulfilled its relevant obligations. The reason why the property involved in the case failed to formally handle the property right registration and mortgage registration is that the property involved was sealed up in another case. Therefore, Greentown Huajing Real Estate has no fault in failing to complete the mortgage registration, and its periodic guarantee liability should be exempted. Therefore, the court supports the appeal claim of Greentown Huajing Real Estate in accordance with the law." (2) Weihai Intermediate People's Court of Shandong Province (2021) Lu 10 Min Zhong No. 1631: China Everbright Bank Co., Ltd. Weihai Branch, Weihai Dongxin Real Estate Co., Ltd. and other civil judgments of second instance on financial loan contract disputes "The Court believes that the focus of this case is whether Everbright Bank has a priority right to compensation for the mortgaged property involved. According to Article 52 of the Interpretation of the Supreme People's Court on the Application of the Relevant Guarantee System, after the parties have registered the mortgage advance notice, the advance notice registration obligee requests priority compensation for the mortgaged property. After examination, there are cases where the first registration of building ownership has not been completed, the property registered in advance notice is inconsistent with the property at the time of the first registration of building ownership, and the mortgage advance notice registration has expired, the people's court shall not support it; if the first registration of the ownership of the building has been completed after examination, and there is no failure of the advance notice registration, the people's court shall support it and shall determine that the mortgage right is established from the date of advance notice registration. After trial, it was found that the real estate involved in the case went through the advance registration of the mortgage right of the pre-purchased commercial housing on November 19, 2015, and Dongxin Real Estate has gone through the first registration of the ownership of the building, and there is no case that the advance registration is invalid, so the mortgage of the real estate involved The right was established from the date of advance registration. The court of first instance held that Everbright Bank did not enjoy the priority of the property involved in the property and should be corrected. As for the question of whether the guarantee liability of Dongxin Real Estate is exempted. According to the contract involved in the case, the phased guarantee of Dongxin Real Estate starts from the date of signing the contract to the date when the mortgagor has effectively established a mortgage on the mortgage, and the relevant mortgage right certificate and relevant supporting documents for setting the mortgage are delivered to the lender for formal management. According to the law, the mortgage right of the real estate involved in the case has been established from the date of advance notice registration, and Dongxin Real Estate should no longer bear joint and joint guarantee liability, however, since Dongxin Real Estate did not raise a defense in the original trial and did not file an appeal after the judgment of the first instance, it was regarded as a waiver of the right, and the court did not review the defense of Dongxin Real Estate." 2. Another view is that the stage guarantee should be terminated according to the contract agreement: if it is a conditional discharge, the establishment of the presumption of the mortgage does not mean the substantive establishment of the mortgage, and the stage guarantor should still bear the responsibility for the guarantee. Such: Henan Zhengzhou Intermediate People's Court (2021) Yu 01 Min Zhong No. 9445: Industrial Bank Co., Ltd. Zhengzhou Branch, Zhang Wei and Other Financial Loan Contract Disputes Civil Second Instance Civil Judgment "The focus of the dispute in this case is whether the conditions for the release of the guarantee liability of the harmonious company as agreed in the Personal Purchase Mortgage (Guarantee) Loan Contract have been achieved. The case involves the "Personal Purchase Mortgage (Guarantee) Loan Contract" stipulates that if the debtor has completed the registration procedures of the house ownership certificate and the mortgage of the house with the creditor as the mortgagee, the guarantor's guarantee liability shall be discharged from the date when the debtor hands over the original mortgage certificate of the house to the creditor's right. However, the guarantor shall still be liable for the obligations of the debtor due before that date and the obligations under this contract arising from the default of the guarantor or/and the debtor before that date. The agreement is specific and clear, including two levels of meaning: First, the borrower has completed the house ownership certificate involved in the case and completed the house mortgage registration procedures with the lender as the mortgagee, which guarantees the termination conditions attached to the legal relationship for Harmony Company; Second, for the debts that have expired before that date, and the debts under this contract caused by the guarantor or/and the borrower's default before that date, the guarantor shall still bear the corresponding liability for breach of contract or guarantee liability, which means that in the event of a breach of contract by Harmony Company, a breach of contract by the borrower or both, Harmony Company shall not be relieved of the claim to waive the guarantee liability by stage joint and several guarantee liability. In this case, the house involved has not yet completed the house ownership certificate, and the conditions for the release of Harmony Company's guarantee liability have not been fulfilled, so Harmony Company should still bear joint and several guarantee liability for the loan involved." In response to the above-mentioned disputes, our lawyers prefer the first view, from the point of view of trading habits and contractual purposes, the purpose of establishing a phased guarantee is to protect the rights of creditors rather than to increase the burden of the phased guarantor. If the creditor's rights have been determined by other means, the purpose of the establishment of the phased security has been achieved, the basis of its existence has been lost, and the role of the real estate mortgage has been completed. Therefore, when financial institutions, small loan companies or other entities (hereinafter referred to as "obligees") act as creditors, they should exercise their rights in a timely manner, and actively urge mortgagors and developers to assist in mortgage registration when conditions are met, so as to avoid the loss of rights. The above opinion does not exclude the possibility that the court in judicial practice determines whether the stage guarantor is exempt from the liability of the guarantee after the right holder obtains the priority of the mortgage involved in the case on the basis of the specific agreement in the stage guarantee contract. Other views based on case search: if the real estate involved in the case is pre-sealed by the court after the advance registration, can the right holder of the advance registration continue to register the mortgage? Case: Jiangsu Higher People's Court (2018) Su Min Zai No. 100: Civil Judgment of Retrial of Disputes over Financial Loan Contract between Nanjing Renheng Real Estate Co., Ltd. and Nanjing Hubei Road Sub-branch of China Everbright Bank Co., Ltd. and Wan Xinjing Viewpoint: The right holder of the advance notice registration of the mortgage right does not have the right of priority compensation. However, the house involved in the case was pre-sealed by the court after the advance registration of the mortgage, which did not affect the registration of the mortgage. Mortgage advance registration rights holders may, after formal registration, according to the mortgage on the case-related housing priority compensation. The referee stated that the house involved in the case was pre-sealed by the court after the advance notice registration of the mortgage right, which did not affect the registration of the house mortgage right and the Hubei Road Branch of Everbright Bank gave priority to the compensation of the house involved in the case. First, the advance registration of mortgage rights is designed to enable creditors to determine the acquisition of mortgage rights after the corresponding conditions are met, and if it is considered that after the real estate has been seized or pre-seized, the advance registration of mortgage rights cannot be converted into mortgage registration even if the conditions are met, it is clearly contrary to the purpose of advance registration. Second, even if the pre-registration of mortgage rights on the seized or pre-seized real estate is converted into mortgage registration, it will not affect the effectiveness of the seizure or pre-seizure, and will not harm the interests of the applicant. Third, before the seizure or pre-seizure, the advance notice registration of mortgage rights that can be converted into mortgage registration in the future has been publicized through advance notice registration, and according to the law, the advance notice registration of mortgage rights can be converted into mortgage registration when conditions are met. This transformation based on the nature of registration in the first place does not constitute an obstruction to the court's enforcement measures. Therefore, although the "Real Estate Registration Data Inquiry Result Certificate" shows that after the advance notice registration of the housing mortgage involved in the case on July 23, 2014, the People's Court of Yuhuatai District, Nanjing City, Jiangsu Province and other courts seized the housing involved in the case, but it does not affect the case. The exclusive effect of the advance notice registration of the housing mortgage, the aforementioned seizure does not affect the priority of the housing compensation of Everbright Bank Hubei Road Branch. Relevant legal advice In summary, in order to protect the realization of the right holder's claim, it is recommended that the right holder, when registering the advance mortgage: 1, strictly abide by the internal business norms, to ensure that the mortgagee, the right holder signed the pre-mortgage/mortgage guarantee contract is the true intention of both parties; 2. Timely update the terms of the developer's phased guarantee contract according to the latest judicial practice, such as increasing the conditions that the developer should meet to exempt the phased guarantee liability, and clarifying that for whatever reason, the developer should continue to bear the phased guarantee liability if there is no formal mortgage registration of the creditor's rights; 3. Check whether the property registered in advance is the same as the property at the time of the first registration of the ownership of the building; 4. In accordance with Article 221 of the Civil Code and the interpretation of the guarantee system, after the advance mortgage registration and the first registration of the building, promptly urge the mortgagor and the developer to assist in the registration of the real estate mortgage, and retain the relevant evidence to urge the mortgagor and the developer to register the real estate mortgage; 5. During the period of advance notice registration, follow up the status of the mortgage involved in the case in a timely manner. For the sake of insurance, the formal mortgage registration shall be completed within 90 days from the date when the real estate registration can be carried out after the advance notice registration.</中华人民共和国民法典>

2022-02-14

Legal Application Practice. The priority of advance registration in banking business from the perspective of the Civil Code (above)

Abstract: The Supreme People's Court on the application<中华人民共和国民法典>After the promulgation of the Interpretation of the Guarantee System (hereinafter referred to as the "Interpretation of the Guarantee System"), the advance notice registration and this registration have been fully connected. Under the circumstances that the building has the conditions for the first registration of ownership, the advance notice registration is valid and the property registered in advance notice is consistent with the property registered for the first time, it is presumed that the obligee of the advance notice registration has the same effect as that of mortgage registration. 1. Comparison of Old and New Viewpoints Before the implementation of the (I) Civil Code and the interpretation of the guarantee system. Article 20 of the "the People's Republic of China Property Law" stipulates that "The parties sign an agreement to buy and sell houses or other real property rights. In order to ensure the realization of real rights in the future, they may apply to the registration agency for advance registration in accordance with the agreement. After the advance notice is registered, if the real property is disposed of without the consent of the right holder of the advance notice registration, the effect of the real property shall not occur. After the advance notice registration, if the creditor's rights are extinguished or the registration is not applied for within three months from the date when the real estate registration can be carried out, the advance notice registration shall be invalid." Since the interpretation of the original property law did not provide for the priority of advance registration, according to the traditional point of view, the above-mentioned provisions on advance registration are the right of the property law to grant the right holder of advance registration to request future mortgage registration, is the right to request future mortgage acquisition, belongs to the right of expectation. This means that the right holder does not enjoy the mortgage right in the strict sense at the time of the advance notice registration, and in view of the uncertainty of whether the right holder can finally obtain the mortgage right, its priority compensation right is also in an uncertain state. In previous jurisprudence, courts often do not support the claim of mortgage or priority over real estate through advance notice registration [such as:(2012) Hu Er Zhong Min Liu (Shang) Zhong Zi No. 138 (Supreme Law Gazette Case), Jiangsu Higher People's Court (2018) Su Min Re No. 100, Jilin Higher People's Court (2019) Ji Min Zhong No. 187, Sichuan Higher People's Court (2020) Chuan Min Re No. 318]]. After the implementation of the (II) Civil Code and the interpretation of the guarantee system Article 221 of the Civil Code continues the provisions of the Property Law on advance notice registration of real estate, and further clarifies the application time for advance notice registration: "The parties sign an agreement to buy and sell a house or sign an agreement to sign other real property rights, in order to ensure the realization of real rights in the future, In accordance with the agreement, you can apply to the registration agency for advance notice registration. After the advance notice is registered, if the real property is disposed of without the consent of the right holder of the advance notice registration, the effect of the real property shall not occur. After the advance registration, if the claim is extinguished or if the registration is not applied for within 90 days from the date on which the real estate can be registered, the advance registration shall be invalid." At the same time, the Supreme People's Court issued the Supreme People's Court on December 31, 2020.<中华人民共和国民法典>Article 52 of the Interpretation of the Guarantee System (Fa Shi [2020] No. 28) stipulates: "After the parties go through the mortgage advance notice registration, the advance notice registration right holder requests that the mortgaged property be paid first. After examination, there are situations such as the property that has not been registered for the first time of building ownership, the property registered for the advance notice is inconsistent with the property when the building ownership is registered for the first time, and the mortgage advance notice registration has expired, if the conditions for mortgage registration are not met, the people's court shall not support it; if the first registration of the ownership of the building has been completed after examination, and there is no failure of the advance notice registration, the people's court shall support it, and shall determine that the mortgage right is established from the date of advance notice registration. If the party concerned has gone through the mortgage advance notice registration and the mortgagor is bankrupt, and the mortgaged property belongs to the bankruptcy property after examination, and the obligee of the advance notice registration claims priority compensation for the mortgaged property, the people's court shall support it within the value range of the mortgaged property when accepting the bankruptcy application, except that the debtor establishes mortgage advance notice registration for debts without property guarantee within one year before the people's court accepts the bankruptcy application." Thus, the Supreme Law, through judicial interpretation, affirms that the registration of advance notice of mortgage is equivalent to the effect of mortgage registration under certain conditions, and has the right to claim the right of priority compensation. The application of the interpretation of the 2. guarantee system. The interpretation of the security system does not further explain the expected ownership of advance registration as dealt with in the Civil Code and the original property law, but directly clarifies the effect of advance registration under certain conditions equivalent to mortgage registration, as follows: 1. The building has been registered for the first time. According to the relevant provisions of the the People's Republic of China Civil Code and the Interim Regulations on Real Estate Registration, registration refers to the act of the real estate registration agency recording the ownership of real estate rights and other legal matters in the real estate register in accordance with the law, and the establishment, change, transfer and transfer of real estate rights The elimination takes effect when it is recorded in the real estate register. In practice, the "first registration" of a building refers to the act of registering the ownership of the whole building in the name of the developer after the completion and acceptance of the building, commonly known as "applying for a big certificate"; only the real estate of "applying for a big certificate" can register the real estate with the small owners, And this kind of real estate registration (that is, "applying for a small certificate") by the developer to the buyer is "transfer registration". After the transfer registration, the notice registration right holder can formally register the mortgage with the mortgagor (small owner). In terms of time, after the building is registered for the first time, it means that the building has the conditions for handover and the small owner as the mortgagor can exercise its right to use as the owner. It also means that the initiative to handle the mortgage is in the hands of the mortgagor, and the advance notice registration has the conditions for conversion to formal mortgage registration. At this time, the bank, as the right holder of advance registration, shall promptly urge the mortgagor to register the real estate mortgage. According to the provisions of Article 52 of the interpretation of the guarantee system, if the first registration of the ownership of the building has been completed by the people's court within the validity period of the advance notice registration, the right holder of the advance notice registration shall have the right to claim priority. Since the first registration only makes the building have the conditions for mortgage registration, it does not mean that the mortgage right has been established. In practice, there may be cases where the real estate mortgage cannot be handled due to non-advance registration rights holders. At this time, consideration should be given to whether the advance registration rights holders are at fault. If the mortgage registration fails to be handled due to the fault of the advance registration rights holders, priority can be claimed. The relevant cases are as follows: (1) Qingdao Intermediate People's Court of Shandong Province (2021) Lu 02 Min Zhong No. 8922: Liu Xia, Qingdao Green City Huajing Real Estate Co., Ltd. and Industrial Bank Co., Ltd. Qingdao Branch Financial Loan Contract Dispute Civil Second Instance Civil Case Judgment [Case Involving Property Seized Causing Failure to Handle Mortgage Registration]] "On the focus of the first issue, the case of the" individual purchase mortgage (guarantee) loan contract "is the true intention of the parties, legal and valid. The Supreme People's Court on the application<中华人民共和国民法典>According to the first paragraph of Article 52 of the interpretation of the relevant guarantee system, after the parties have registered the mortgage advance notice, the obligee of the advance notice registration requests priority compensation for the mortgaged property. After examination, the property that has not been registered for the first time, the property that has been registered in advance and the property that has been registered for the first time, and the mortgage advance notice registration has been invalid, The people's court will not support it; if the first registration of the ownership of the building has been completed after examination, and there is no such situation as the failure of the advance notice registration, the people's court shall support it and shall determine that the mortgage right is established from the date of the advance notice registration. The real estate located in Shinan District of Qingdao City has already met the conditions for property right registration, that is, formal mortgage registration. Because it was sealed up by the Huangdao District Supervision Committee of Qingdao City, formal mortgage registration cannot be handled. There is no evidence to prove that the appellee Industrial Bank Qingdao Branch is at fault, and there is no evidence to prove that Industrial Bank Qingdao Branch was not in good faith when signing the contract involved. Although Societe Generale Qingdao Branch did not appeal against the mortgage in this case, it dealt with the mortgage in this case because it involved the issue of the developer's phased guarantee liability." (2) Guangzhou Intermediate People's Court of Guangdong Province (2021) Yue 01 Min Zhong No. 25138: Civil Judgment of Second Instance on Disputes over Financial Loan Contracts such as Guangzhou Agile Real Estate Development Co., Ltd. and Guangzhou Zengcheng Sub-branch of Bank of China Co., Ltd. [Case of Failure to Handle Transfer Registration due to Unauthorized Changes of Property by Owners after First Registration, Mortgage Registration Not Established]] "Third, judging from the specific circumstances of this case, Zengcheng Sub-branch of Bank of China, as a creditor, went through the mortgage advance registration of the property involved in the case shortly after the loan was issued (September 12, 2008) in order to ensure the safety of its financial creditor's rights. However, due to the reasons of Yu Shaozhou and Tang Limei of the two borrowers, the property involved in the case still failed to go through the formalities of property transfer and mortgage registration. The occurrence of this situation is not the fault of the Bank of China Zengcheng Branch, nor is it his subjective will. Fourth, Article 52 of the newly promulgated Interpretation of the Supreme People's Court on the Application of the Relevant Guarantee System stipulates that after the parties have registered the mortgage advance notice, the advance notice registration obligee requests priority to be paid for the mortgaged property. After examination, there are cases where the building ownership has not been registered for the first time, the property registered in advance notice is inconsistent with the property when the building ownership is registered for the first time, and the mortgage advance notice registration has expired, if the conditions for mortgage registration are not met, the people's court shall not support it; if the first registration of the ownership of the building has been completed after examination, and there is no failure of the advance notice registration, the people's court shall support it, and shall determine that the mortgage right is established from the date of advance notice registration. According to Article 3 of the" Several Provisions of the Supreme People's Court on the Effect of Applicable Time "," Civil dispute cases caused by legal facts before the implementation of the Civil Code, where the laws and judicial interpretations at the time did not provide for but the Civil Code did, the Civil Code may apply. Provisions, except for those that obviously derogate from the legitimate rights and interests of the parties, increase the legal obligations of the parties, or deviate from the reasonable expectations of the parties, article 52 of the Interpretation of the Supreme People's Court on the Application of the Relevant Guarantee System is applicable to this case. In this case, the appellant has already registered the ownership of the house involved in the case for the first time, and Zengcheng Sub-branch of Bank of China has set up mortgage advance notice registration for the house involved in the case, and its rights do not have the failure circumstances stipulated in the second paragraph of Article 20 of the the People's Republic of China Property Law, and it has no fault for not registering the mortgage at present. Therefore, the court determines that the mortgage right of Zengcheng Sub-branch of Bank of Bank of Bank of Bank of Bank of China has been established from the bank of China since the mortgage notice notice registration, support the appellant's appeal that the Bank of China Zengcheng Branch has obtained the right to priority compensation for the property involved." 2, the existence of a valid advance registration or advance registration with the conditions for mortgage registration. According to the provisions of Article 221 of the Civil Code, if the creditor's rights are extinguished or the registration is not applied for within 90 days from the date when the real estate registration can be carried out, the advance notice registration shall be invalid. From the point of view of the interpretation of the legislative purpose, the change of the notice registration to the increase of the time limit on the mortgage registration is conducive to the protection of the determined state of property rights, and urge the notice registration right holders to actively exercise their rights. If the right holder neglects the formal right, he loses the priority. The relevant cases are as follows: (1) Shandong Haiyang Municipal People's Court (2021) Lu 0687 Minchu No. 3734: Civil First Instance Civil Judgment on Disputes over Financial Loan Contracts such as Haiyang Sub-branch of Bank of China Limited and Qiao Zhehao [The obligee of advance notice registration failed to handle mortgage registration in time after the first registration of building ownership, resulting in the expiration of advance notice registration]] Regarding the Bank of China Haiyang Branch on the pre-mortgage property involved in the case after the discount, auction, sale of the price whether to enjoy the priority of compensation. The Court believes that according to the relevant provisions of the "the People's Republic of China Property Law", because the house involved in the case has not gone through the formal mortgage registration, the Bank of China Haiyang Branch does not enjoy the priority of compensation. Article 52 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System of the the People's Republic of China Civil Code stipulates that "after the parties have registered the advance notice of mortgage right, the obligee of the advance notice registration requests priority to be paid for the mortgaged property. After examination, there are situations such as the first registration of building ownership, the inconsistency between the property registered in advance notice and the property registered in the first registration of building ownership, and the mortgage advance notice registration has expired, if the conditions for mortgage registration are not met, the people's court shall not support it; if the first registration of the ownership of the building has been completed after examination, and there is no failure of the advance notice registration, the people's court shall support it and shall determine that the mortgage is established from the date of the advance notice registration." According to this regulation, two conditions must be met for the property that has been registered for the advance notice of mortgage to enjoy the priority of compensation, that is, the building has been registered for the first time, and there is no failure of the advance notice registration. At the same time, according to relevant regulations, after the advance notice registration, If the registration is not applied for within three months from the date when the creditor's rights are extinguished or the real estate registration can be carried out, the advance notice registration, the advance notice registration shall be invalid. Specific to this case, the house involved in the case went through the first registration of building ownership on April 20, 2020. So far, the conditions for handling the property right certificate and mortgage registration have been met. However, it has been more than three months since the time. The house involved in the case still has not gone through the mortgage registration, and the mortgage advance notice registration has expired. Therefore, the house does not meet the provisions of the Supreme People's Court on the application of the relevant guarantee system of the the People's Republic of China Civil Code of the People's Republic of China, and therefore does not meet the conditions for the right of priority compensation. For the Bank of China Haiyang Sub-branch of the request, the Court does not support. (2) Shandong Jining Intermediate People's Court (2021) Lu 08 Min Zhong No. 4297: Shandong Huaruiyuan Real Estate Development Co., Ltd. and Zhang Hu, Zhang Chengkai and other financial loan contract disputes civil judgment of second instance [the obligee of advance notice registration failed to handle mortgage registration in time after the first registration of building ownership, resulting in the expiration of advance notice registration]] On the question of whether the plaintiff has a priority right to pay the mortgaged property. The mortgage of real estate shall be registered, and the mortgage right shall be established at the time of registration. The second paragraph of Article 20 of the "the People's Republic of China Property Law" stipulates that after the advance notice registration, if the creditor's rights are extinguished or the registration is not applied for within three months from the date when the real estate registration can be carried out, the advance notice registration shall be invalid. In this case, the mortgaged property provided by the defendants Zhang Hu and Zhang Chengkai (No. 02-0102, Floor 1, Unit 02, Building 10, Shengjing Xiyuan Plot B, Southeast Huacheng) was registered only on June 6, 2019. After the defendant Huaruiyuan Real Estate Company registered the ownership of "Building 10, Shengjing Xiyuan Plot B, Southeast Huacheng" for the first time on November 27, 2019, 2019, the conditions for handling the property certificate and other certificates. Because both the plaintiff and the defendant failed to register the real estate mortgage within three months from the date when the real estate registration was able to be carried out, according to the above-mentioned legal provisions, the advance notice registration of the real estate mortgage involved in the case has become invalid. The Supreme People's Court on the application<中华人民共和国民法典>According to Article 52 of the interpretation of the relevant guarantee system, after the parties have gone through the mortgage advance notice registration, the obligee of the advance notice registration requests priority compensation for the mortgaged property. After examination, the property that has not been registered for the first time, the property registered in advance notice is inconsistent with the property at the time of the first registration of building ownership, and the mortgage advance notice registration has been invalid, The people's court will not support it.</中华人民共和国民法典></中华人民共和国民法典></中华人民共和国民法典></中华人民共和国民法典>

2022-02-11

Legal Viewpoint... How to divide the stock purchased by one party before marriage in the event of divorce.

Basic case Ms. Li and Mr. Wang are in free love. They registered for marriage in October 2010 and have a son after marriage. Ms. Li filed a lawsuit with the court in May 2020, claiming that the relationship between the couple had broken down and requesting a divorce. Mr. Wang said the relationship is not broken, do not agree to divorce. The court ruled against divorce. Six months after the verdict came into effect, Ms. Li filed a divorce lawsuit again, requesting a divorce and raising a legitimate child. Mr. Wang agreed to the divorce and agreed that the legitimate child would be raised by Ms. Li and that she would pay monthly support, but asked to split the market value of the shares purchased by Ms. Li before marriage in the fund account of a securities business department of a certain securities company limited. &middot; Lawyer's Views The author represents Ms. Li, in the process of receiving Ms. Li, the author told Ms. Li that if the stock account set up before marriage did not buy and sell after marriage, the value-added part of the stock belongs to the natural value-added, the other party has no right to divide. If there is a buy and sell, and the time and energy spent to maintain the value of the stock, the other party has the right to divide the value-added part. Ms. Li told the author that after marriage, buying and selling frequently, and the amount of value added is very large. So the author according to the actual situation of the case analysis of the stock should be owned by Ms. Li, but Ms. Li needs to pay half of Mr. Wang's stock appreciation. &middot; Views of the People's Court of the Supreme Court The key to how to define whether the value-added portion of the stock purchased before marriage is the joint property of the husband and wife is whether the stock account has been moved after marriage. If the stock account has not been moved, it is the purchaser's premarital property and the other party has no right to request a division of the value-added portion; if the stock account has been operated and managed after marriage, the value-added shall be treated as the joint property of the husband and wife, and the other party may request a division of the value-added portion. Value added is the increase in price of a thing or right. According to the causes of value-added, it can be divided into natural value-added and active value-added. Natural value-added means that the value-added occurs as a result of inflation or changes in market conditions, and has nothing to do with whether one or both spouses put material, labor, effort, management, etc. into the property. For example, the house, antiques, calligraphy and painting, jewelry, gold, etc. owned by the husband and wife before marriage are increased in value due to the increase in market prices during the marriage relationship. Active value-added means that the reason for the value-added is not only inflation or changes in market conditions, but also related to the labor, investment, management, etc. paid by one or both spouses to the property. For example, the value-added part of the pre-marital house of the husband and wife due to the decoration during the marriage relationship. Specific to the issue of stock appreciation, the reasons for stock appreciation should be analyzed. If the stock is held before marriage and has not been operated, the value-added of the stock is entirely caused by changes in market conditions, and this value-added should be understood as natural value-added, and it is more appropriate to identify it as personal property before marriage by applying the provisions of Article 26 of the Judicial Interpretation I of Marriage and Family. If the stock has been bought and sold many times after marriage, it is more appropriate to understand the appreciation of the stock as an investment behavior. Because in this case, the appreciation of the stock often requires one of the husband and wife to invest a lot of time and energy, and its income often depends on the management of the stock speculator, which requires the other party of the husband and wife to pay more in other aspects, such as the upbringing of children and the income of family daily expenses. If it is unilaterally understood as natural appreciation, it may be unfair. And in real life, there are professional stock speculators, who specialize in stock speculation, or simply rely on stock speculation income to survive, if the value-added income of the stock does not distinguish the situation, all as the property of one of the husband and wife, will not be conducive to the protection of the rights and interests of the other party. Therefore, it is more appropriate to understand the return on stocks as the return on investment operations. Investment is divided into direct investment and indirect investment. Direct investment refers to the direct investment of money or in kind in the production and operation activities of an enterprise, and its investment income is usually accompanied by the investor's business behavior, and the income obtained by this investment method is usually known and accepted as the joint property of the husband and wife. Indirect investment is more hidden, it does not directly invest in enterprises, its income is usually not directly related to the business activities of enterprises, mainly in the purchase of stocks, bonds, investment funds and other securities to obtain dividends, dividends, fund investment income and the difference between the transfer of the above-mentioned securities and the deduction of principal. In this case, the proceeds of the appreciation of the stock as an indirect investment should belong to the joint property of the husband and wife, and the other party may of course request a division. &middot; The court of first instance held As of the plaintiff's lawsuit, the market value of the shares in the capital account of a securities business department of XXX Securities Co., Ltd. was 349768 yuan. The account was opened in 2009 and the market value was 55555 yuan at the time of opening the account. As both parties did not provide a transaction list and the shares rose or fell, the current market value could not distinguish between income, interest and natural appreciation. Defendant Wang received half of the market value of the account, that is, 174884 yuan. &middot; Second instance Ms. Li appealed against the verdict. In the second instance, after court mediation, Mr. Wang only got half of the stock appreciation, that is, 147106.50 yuan. &middot; Legal provisions 1. Article 1062 of the the People's Republic of China Civil Code stipulates: "The following property acquired by the husband and wife during the existence of the marriage relationship shall be the joint property of the husband and wife and shall be jointly owned by the husband and wife: (1) wages, bonuses and remuneration for labor services; Income from (II) production, operation and investment; Income from (III) of intellectual property rights; Property inherited or donated by the (IV), except as stipulated in Item 3 of Article 1063 of this Law; (V) other property which shall be owned jointly. Husband and wife have equal rights to deal with common property." 2. Article 26 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates: "The income generated by the personal property of one spouse after marriage shall be recognized as the joint property of the husband and wife, except for fruits and natural appreciation."

2022-02-09