Viewpoint | If criminals are temporarily placed outside prison due to pregnancy or lactation, please understand

1. Legal basis and legislative spirit The second item of the first paragraph of Article 265 of the Criminal Procedure Law: Women who are pregnant or are breastfeeding their own babies; criminals sentenced to fixed-term imprisonment or criminal detention may be temporarily executed outside prison. The system of temporary execution outside prison is a special system of penalty execution in our country. The application of temporary execution outside prison to women who are pregnant or breastfeeding their babies is the maintenance of the health rights of women and babies, and is an important manifestation of the spirit of humanitarian justice. 2. Who can make a decision on the temporary execution of a pregnant offender? If the offender is found to be pregnant or nursing a baby before the sentence takes effect, the decision of the people's court (court of first instance) that handed over the execution shall be made; if the offender is found to be pregnant or nursing a baby after the sentence takes effect, the prison or detention center shall submit a written opinion to the prison administrative organ at or above the provincial level or the public security organ at or above the municipal level divided into districts for approval. Therefore, if the criminal is in a state of bail before the judgment takes effect, he can apply to the court for temporary execution outside prison when the judgment takes effect. For the application, the court will organize a review and seek the opinions of the procuratorate, and then make a decision on whether to agree to the temporary execution outside prison. 3. Is the sentence offset during the period of temporary execution outside prison? Temporary execution outside prison can be used to offset the sentence. The period of temporary execution outside prison shall be calculated from the date of service of the decision on temporary execution outside prison. Generally speaking, the decision to suspend execution outside prison will be made later than the effective time of the court decision. For example, (2022) Ji 0128 Xing Geng No. 2. On January 25, 2022, the People's Court of Shenze County issued a criminal judgment (2022) Ji 0128 Xingchu No. 1, and sentenced the criminal Song to six months in prison for obstructing credit card management. After the judgment came into effect, the current criminal Song Mou applied for temporary execution outside prison on the grounds of "pregnancy. The Shenze County People's Court solicited the opinions of the Shenze County People's Procuratorate and the Shenze County Judicial Bureau in writing, and both believed that the criminal Song Ce met the conditions for temporary execution outside prison. On May 5, 2022, the criminal Song Mou was temporarily sentenced to execution outside prison. 4. How long is the temporary execution time outside prison? China's criminal law has no explicit provisions on lactation during temporary execution outside prison. However, according to Article 63 of the labor law, Article 9 of the special provisions on labor protection of female employees and Article 9 of the interpretation of the Supreme People's Court on several issues concerning the specific application of law in the trial of crimes of trafficking in women and children, the definition of "infant" is consistent, that is, children under one year old. Based on this, in judicial practice, "lactation" is generally understood as "the period of breastfeeding one's baby under one year of age". That is, this period should be up to 1 year, from the date of birth to the following year's birthday. Because this is natural time, there is no situation that can prolong lactation. Thus, if the offender has not given birth at the time of the court's decision to suspend the execution outside prison, the period of suspension outside prison extends from the date of service of the decision to one year after the birth of the child. 5. Can I continue to apply for execution outside prison if I become pregnant again during the temporary execution outside prison? The Criminal Procedure Law and the Regulations on Temporary Execution Outside Prison jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Justice, and the National Health and Family Planning Commission only stipulate the circumstances under which temporary execution outside prison can be temporarily executed. The number of times is specified. Therefore, if a woman who is breastfeeding her baby becomes pregnant again during the period of temporary execution outside prison, she can continue to apply for temporary execution outside prison. For example, case number:(2016) Ji 0426 Xing Zhi Zi No. 178-1, the criminal Ren Mouxiang is a woman who is breastfeeding her baby. The Shexian County People's Court made a decision on June 15, 2017 to temporarily execute her outside prison. When the temporary execution outside prison expired, the criminal Ren Mouxiang applied for temporary execution outside prison with another pregnancy and provided relevant supporting materials. On August 13, 2018, the Shexian County Court once again made a decision on its temporary execution outside prison. 6. Abortion during temporary execution outside prison. How to calculate the period of temporary execution outside prison? Once a pregnant woman has a miscarriage, she does not meet the conditions for temporary execution outside prison. For those whose sentences have not expired, continuing to reform in the community cannot achieve the purpose of punishment, and they need to be admitted to prison in time. Therefore, during the period of temporary execution outside prison, if the community correction staff find that the offender has miscarried, they will generally submit a recommendation for admission to the court that made the execution outside prison. After review, the court will make a decision on the execution of imprisonment in accordance with Article 268 of the the People's Republic of China Criminal Procedure Law. In judicial practice, the period during which the offender is admitted to correction after miscarriage is not allowed to offset the sentence. For example, (2021) Ji 0128 Punishment No. 4, after the judgment came into effect, the criminal Gu Moumei applied to the court for temporary execution outside prison in 2020 and 2021 on the grounds that she was in the "breastfeeding period" and "pregnant". After review, the court decided to temporarily execute him outside prison. In the process of execution, the staff of the Bureau of Justice found that Gu Moumei had miscarried, and suggested that the criminal Gu Moumei should be put in prison for execution on the grounds that the situation of temporary execution outside prison disappeared but the sentence was not expired. After investigation, the court found that the criminal Gu Moumei miscarried on October 1, 2021, and the situation of temporary execution outside prison has disappeared, and the sentence has not expired, and should be sent to prison for execution, and the criminal Gu Moumei was temporarily executed outside prison. Until October 1, 2021. 7. Is the offender a woman who is pregnant or breastfeeding her own baby necessarily subject to temporary execution outside prison? The Criminal Procedure Law stipulates that for criminals who are pregnant or breastfeeding, "can" apply to execution outside prison rather than "should", that is to say, it is not inevitable to apply execution outside prison to such criminals. In judicial practice, specific judgments should be made according to the criminals' performance in reform and attitude of confession and repentance. Of course, after admission, women who are pregnant or breast-feeding their babies will be given humane care, and temporary places like "homes" will be set up in the supervision places to try not to cause harm to innocent babies. When their breastfeeding period expires, they will be immediately handed over to their relatives. If there are no relatives or relatives who are unwilling to raise them, they can be raised by civil affairs agencies and social welfare agencies.

2023-06-12

Dynamic | Fan Huaping, deputy director of the Standing Committee of Shandong Provincial People's Congress, and his party visited Zhongcheng Qingtai Jinan Institute to investigate the work of lawyers.

On June 9, Fan Huaping, deputy director of the Standing Committee of the Shandong Provincial People's Congress, and his entourage were accompanied by Zhu Xiaofeng, member of the Party Committee and Deputy Director of the Provincial Department of Justice, Wang Minsheng, Chairman of the Provincial Lawyers Association, Huang Guili, Deputy Director of the Standing Committee of the Jinan Municipal People's Congress, and member Jin Lixia. Sun Delong, Secretary and Director of the Bureau of Justice, Party Committee Member Chen Qijun, visited Zhongcheng Qingtai (Jinan) Law Firm to investigate the lawyer work and other leaders and held a forum. Geng Guoyu, Secretary of the Party Committee and Director of Zhongcheng Qingtai Jinan Institute, and Du Wentang, Director of the Administrative Committee, received warm reception. Du Wentang accompanied Deputy Director Fan Huaping and his party to visit Jinan's office area, party building activity room, law firm's honor wall, etc., and introduced Zhongcheng Qingtai's development process, party building work, strategic layout, market expansion and business development. The symposium was presided over by Jin Lixia, member of the Standing Committee of the Jinan Municipal People's Congress. Sun Delong, Secretary of the Party Committee and Director of the Municipal Bureau of Justice, reported on the implementation of the Lawyers Law and the management of the lawyer team in the city, and Geng Guoyu, President of the Municipal Lawyers Association, reported on the work. Lawyer du wentang of jinan institute spoke as a lawyer's representative. Fan Huaping emphasized that the lawyer system is an important part of a country's legal system and an important symbol of the progress of the rule of law civilization. The team of lawyers is an important force in the construction of a country under the rule of law, a society under the rule of law, and a government under the rule of law. We must unswervingly grasp political guidance and always keep in mind that lawyers are the party's lawyers and the people's lawyers. We must adhere to the party's overall leadership of lawyers' work and always be consistent with the party's goals and tasks. We should unswervingly grasp the high-quality development of the industry, actively adapt to the requirements of economic and social development in the new era, improve the ability and quality, and enhance the core competitiveness. It is necessary to unswervingly grasp the expansion of foreign business, accurately understand the requirements of the central government on building a new development pattern of international and domestic "double circulation", actively adapt to the process of economic globalization, give full play to the advantages of rich lawyers' resources, base on domestic business, and at the same time look overseas, develop foreign-related legal services, establish brands, and become bigger and stronger. It is necessary to unswervingly grasp the "urgent and anxious" of the industry, benchmark General Secretary Xi Jinping's important expositions on the rule of law and the central decision-making and deployment, focus on the difficulties and weak links in development, focus on the needs of the lawyer industry, and take pragmatic measures to solve the problems involving the lawyer industry High-quality development issues, give full play to the active role of lawyers in the construction of a country under the rule of law, a government under the rule of law, and a rule of law, and a society under the rule of law. Responsible comrades of the Supervision and Judicial Committee of the Provincial and Municipal People's Congress, the Department of Justice, and the Lawyers Association, and some lawyers' representatives participated in the event. In the next step, Zhongcheng Qingtai Law firm will conscientiously study and implement Xi Jinping's thinking on socialism with Chinese characteristics in the new era, thoroughly study and implement Xi Jinping's thinking on the rule of law, and actively promote the materialization of party building work. Promote the integrated development of party building and business work, adapt to the social development situation, strengthen the construction of norms, and refine service standards. In the construction of a country under the rule of law, a government under the rule of law, and a society under the rule of law, lawyers should play an active role and contribute greater wisdom and strength.

2023-06-10

Wang Lili, senior partner of Zhongcheng Qingtai Law Firm, visited OQ Group, an Oman energy company.

On the afternoon of June 6, 2023, lawyer Wang Lili, deputy director and senior partner of Shandong Zhongcheng Qingtai (Jinan) Law Firm, visited OQ Group Sales Company (OQ Trading Limited) in Dubai International Financial Center (DIFC) and OQ Group Headquarters in Muscat, capital of Oman, on June 8. Wail Al Jamali, CEO of OQ Group Sales Company, and Yasser Al Fadhil, Trading Manager of OQ Group, received a warm reception. This time, lawyer Wang Lili, together with Jin Zong, head of the world's top 500 and domestic listed companies, and Wang Zong of Oman Dragon Investment Co., Ltd., visited Oman OQ Group and had an all-round exchange on crude oil, LPG, LNG and other energy bulk trade and related legal services, investment and financing business. CEO Wail Al Jamali and manager Yasser Al Fadhi both said that OQ Group hopes to further strengthen communication and docking with Chinese enterprises, deepen exchanges and cooperation, actively promote energy trade with China, and carry out business cooperation as soon as possible in the near future. At the same time, it hopes that Zhongcheng Qingtai Law Firm can provide it with more high-quality legal services and investment and financing services. Oman OQ Group is a global comprehensive energy company and Oman's top oil company. The business network covers 17 countries and regions around the world, ranging from oil and gas exploration and exploitation to production and marketing of high-performance chemicals, covering the entire energy and chemical value chain. Products are sold in more than 60 countries and regions around the world.

2023-06-09

Viewpoint | A brief analysis of the consensus termination of the labor contract.

Article 36 of the "Labor Contract Law" stipulates that the employer and the employee may terminate the labor contract by consensus. Because of its flexibility and low risk, consensus cancellation is also one of the most used ways of cancellation by employers. Referee's point of view 1. Unless the laborer proposes to terminate the labor contract in accordance with Article 38 of the Labor Contract Law, the laborer proposes to terminate the labor contract, and both parties agree to terminate the labor contract, the employer may not pay economic compensation for the termination of the labor contract. 2. If the employer proposes to terminate the labor contract and both parties agree to terminate the labor contract, the employer shall pay the employee economic compensation for the termination of the labor contract. 3. If the labor contract is terminated by consensus, it shall not be subject to the restriction of 30 days' written notice as stipulated in Articles 37 and 40 of the Labor Contract Law. 4. Except for the reasons provided by law, if the parties agree on the reasons for the termination or termination of the labor contract, the agreement shall be null and void, except where the agreement of the parties is specific to the statutory reasons. 5. The agreement reached between the worker and the employer on the cancellation or termination of the labor contract, the payment of wages, overtime pay, economic compensation or compensation, etc., does not violate the mandatory provisions of laws and administrative regulations, and there is no fraud, Coercion or take advantage of the danger of others shall be deemed valid. If the agreement is significantly misunderstood or is obviously unfair, and the parties request to cancel it, the people's court shall support it. 1. Dissolution of Labor Contract and Economic Compensation by Consensus According to Item 2 of Article 46 of the Labor Contract Law, if the employer proposes to terminate the labor contract to the laborer in accordance with Article 36 of the Labor Contract Law and terminates the labor contract through consultation with the laborer, the employer shall pay the laborer Economic compensation. If the laborer proposes to terminate the labor contract and negotiates with the employer to terminate the labor contract, the law does not require the employer to pay economic compensation to the laborer. However, if the employer and the employee reach an agreement to pay economic compensation to the employee, the agreement shall be valid. Dissolution of the labor contract and the right to rescind the contract by consensus of the 2. Article 36 of the Labor Contract Law clearly stipulates that the employer and the employee may terminate the labor contract by consensus. However, this does not mean that both parties to the labor relationship can agree on the cause of termination of the labor contract other than the legal cause in the labor contract, that is, there is no agreed right of termination in the field of labor contract. According to the provisions of the Labor Contract Law, the employer can only unilaterally terminate the labor contract in accordance with the fault dismissal system stipulated in Article 39 of the Law, the no-fault dismissal system stipulated in Article 40, and the economic layoff system stipulated in Article 41, except for the termination of the labor contract by consensus between the two parties in the labor relationship. The right of workers to terminate the labor contract is almost unlimited. Under normal circumstances, they only need to notify the employer 30 days in advance or 3 days in advance during the probation period. Therefore, the legislative purpose of the "Labor Contract Law" is to restrict the employer's right to terminate the labor contract in order to maintain stable labor relations. If the parties are allowed to agree on the reasons for the exercise of the right of discharge, it is bound to overrun the legislative purpose of the Labor Contract Law. In summary, both parties to the labor relationship can terminate the labor contract by consensus, but they cannot break through the legal cause of termination in the labor contract in advance and agree on the right to terminate the contract. Except for the reasons stipulated by law, if the parties agree on the reasons for the termination or termination of the labor contract, the agreement is invalid, except that the parties' agreement is specific to the statutory reasons. The meaning of the 3. to terminate the labor contract by consensus is the limit. In practice, when the two parties to the labor relationship negotiate the termination of the labor contract, they often negotiate whether to give economic compensation and how much economic compensation to give. When the economic compensation and other matters are not agreed, they will not sign an agreement to terminate the labor contract. However, there are also labor relations between the two parties in the economic compensation is not negotiated when the first signed the termination of the labor contract agreement, and then on the economic compensation matters dispute, one party on this ground to deny the validity of the termination of the labor contract agreement. The key to dealing with this issue is to clarify the meaning of the termination of the labor contract by consensus. The consensual termination of the labor contract is a consensual termination arrangement for the labor contract relationship between the two parties, and the meaning of the consensual termination is independent in the absence of evidence to prove that there are other conditional factors. After the two parties have reached an agreement to terminate the labor contract, if one party goes back on its word, it shall not be supported. On the other hand, if there is evidence that the termination of the labor contract is subject to certain conditions, the effect of the termination of the labor contract does not occur when the conditions are not fulfilled. 4. Consequences of Dissolution of Labor Contract by Consensus If both parties to the labor relationship terminate the labor contract by consensus, the following legal consequences will occur according to law: 1. If the laborer proposes to terminate the labor contract and both parties to the labor relationship agree to terminate the labor contract, the employer does not need to pay economic compensation; if the employer proposes to terminate the labor contract and both parties to the labor relationship agree to terminate the labor contract, the employer needs to pay economic compensation in accordance with the law. 2. If the two parties to the labor relationship agree that the employer is not required to pay economic compensation, if the agreement does not violate the true intention of the parties, the agreement shall be followed in practice. 3. The employer shall, within 15 days after the termination of the labor contract by both parties, complete the formalities for the transfer of archives and social security relations for the workers in accordance with the law. If the delay or refusal to do so causes losses to the worker, the worker may request compensation from the employer. Key points of practice 1. Pay attention to the examination of whether the party proposing the termination of the labor contract is the worker or the employer. 2. Pay attention to the examination of whether the termination of the labor contract agreement has been revoked or legally invalid. 3. Pay attention to the scope of the meaning of consensus, whether it only includes the termination of the labor contract itself, or also includes other matters such as economic compensation. 4. Pay attention to review whether the termination of the labor contract by consensus is premised on certain conditions and whether the prerequisite conditions have been fulfilled. If not, the reasons should be examined. Practical Operation Guidance It is recommended that the employer or employee retain the evidence of the whole process of negotiating the termination of the labor contract.

2023-06-09

Dynamic... Zhongcheng Qingtai Jinan Institute Song Huidong lawyer was invited to carry out "Commercial Housing Delivery Legal Risk" special training for the health eco-city project.

On June 2, 2023, Song Huidong, senior partner of Zhongcheng Qingtai Jinan Institute, was invited to conduct a special training on "Legal Risks of Commercial Housing Delivery" for Shandong Yiyang Health Group Minghua Real Estate Co., Ltd. This training is mainly due to the health eco-city project developed and constructed by Shandong Yiyang Health Group Minghua Real Estate Co., Ltd. It will immediately face the delivery of houses to the owners. In order to avoid legal risks such as related disputes in the delivery process, special for developers in the delivery of commercial housing in the process of relevant legal matters to carry out training. This training focuses on the legal concepts and opinions of commercial housing delivery, the main matters, legal risks and preventive measures in the process of commercial housing delivery, as well as the relevant legal risks for the delivery of boutique housing. At the same time, lawyer song analyzed the relevant cases of Jinan district and municipal people's courts on the housing delivery standards and delivery responsibilities of developers since 2014, and analyzed the orientation and changes in judicial trials in recent years, which is conducive to the developers to predict the housing delivery standards and delivery responsibilities in advance when signing commercial housing sales contracts, so as to avoid potential legal risks. Leaders and colleagues at the meeting said that this training is very timely, which can enable company personnel to understand in advance the legal risks that may be involved in the process of house delivery, and how to deal with and deal with problems in the process of house delivery, so as to avoid problems affecting house delivery.

2023-06-09

Dynamic... Zhongcheng Qingtai Jinan Institute Song Huidong lawyer was invited to carry out corporate governance system compliance training for state-owned companies.

At the beginning of June 2023, Song Huidong, senior partner of Zhongcheng Qingtai Jinan Institute, was invited to carry out special training on "Compliance Construction of State-owned Corporate Governance System" for Carbon Lida Solid Waste Disposal (Shandong) Co., Ltd. This training mainly focuses on the concept and purpose of corporate governance, past and present of corporate governance, participants in the company's quality system, and measures to improve corporate governance. At the same time, it is explained and analyzed in combination with real cases, to assist state-owned enterprises shall not establish and improve the corporate governance system structure, balance the interests of shareholders, directors, senior management and other aspects, and ensure the orderly and sound development of state-owned enterprises. Modern enterprise ownership and management rights are separated, and ownership and management rights belong to different subjects. Under this premise, a mechanism of mutual checks and balances is needed between owners and operators to realize the normal operation and development of enterprises. Corporate governance refers to the coordination of the interest relationship between the company and all stakeholders (shareholders, creditors, employees, potential investors, etc.) through a set of formal or informal, internal or external systems to ensure The scientific and effective decision-making of the company will ultimately safeguard the interests of all aspects of the company, including three levels of internal corporate governance structure, external governance market system, and legal rule system. Through this state-owned enterprise investment compliance training, corporate leaders and staff have an in-depth understanding of the importance of standardizing the construction of the corporate governance structure system of state-owned enterprises, and combined with the company's own situation, continuously optimize and strengthen the corporate governance structure system, and effectively prevent enterprises Risks caused by imperfect corporate governance structure.

2023-06-09

Dynamic... Zhongcheng Qingtai Jinan Institute Zhao Bin was invited to carry out special training on labor risk and legal risk prevention for Bank of China Shandong Branch.

On the morning of June 6, lawyer Zhao Bin, a partner of Zhongcheng Qingtai Jinan Institute, was invited to carry out special legal training on "Labor Employment Process and Legal Risk Prevention" for Bank of China Shandong Branch. Relevant personnel from the human resources management departments of 16 prefectures and cities under the jurisdiction of Bank of China Shandong Branch attended the meeting simultaneously through the teleconference system. Lawyer Zhao Bin made a systematic account of the legal provisions on employment and the legal risks that may be encountered in the process, taking the process from entry to departure of employees as the time axis, in view of the problems summarized by local branches and combined with practical experience. After the lecture, I answered questions about the problems encountered by branches in various cities. Zhao Bin's lecture was well received by the participants.

2023-06-06

Dynamic... Jinan Arbitration Commission Director Yi Guangjun and his party visited Zhongcheng Qingtai Jinan Institute for research work.

In order to further carry out the theme education of Xi Jinping's new era of socialism with Chinese characteristics, combined with the work deployment of the municipal party committee and municipal government's "project breakthrough year" and the work requirements of the Jinan Arbitration Office's "service satisfaction improvement year", on June 2, 2023, Ji Guangjun, director of the Jinan Arbitration Commission and director of the Jinan Arbitration Office, Zhu Zhiheng, member of the party group and deputy director of the Jinan Arbitration Office, visited Zhongcheng Qingtai (Jinan) Law Firm. Han Honggang, director of Zhongcheng Qingtai Law Firm, Geng Guoyu, director of Jinan Institute, Yao Huming, chairman of the board of supervisors, Zhou Jiyong, Yu Peng, Du Wentang, He Zefeng, etc. warmly received the firm. Director Geng Guoyu accompanied the Jinan Arbitration Commission and his party to visit the office area of Jinan Institute and introduced Zhongcheng Qingtai's party building work, market expansion and business development. The two sides focused on the work of the law firm's service center and the arbitration needs in the service process. It also discussed the law firm's office system, information construction and the use of "Jinan Arbitration Commission Case Information Management System" by lawyers as agents and suggestions for improvement. At the same time, the law firm conducted two-way communication on Jinan Arbitration Office's case management, arbitrator management, arbitration system promotion and other work and facilitation service measures.

2023-06-05

The unveiling ceremony of Zhongcheng Qingtai Mai Jiarong Feng Du (Jinan) Joint Law Firm was held in Hong Kong.

On May 29, the 2023 Hong Kong, Macao and Shandong Week was officially launched in Hong Kong. With the theme of "deepening cooperation and creating the future together", this Hong Kong, Macao and Shandong week has carried out a number of exchange activities in the fields of industrial cooperation, scientific and technological innovation, financial docking, talent introduction, service cooperation, cultural tourism and other fields, showing the development achievements of Shandong in recent years and attracting more international attention to Shandong. As an important part of this Hong Kong, Macau and Shandong Week, on May 31, the Jinan Municipal People's Government held the "Jinan City 2023 (Hong Kong) High-quality Development Promotion Conference and the New and Old Kinetic Energy Conversion Demonstration Zone Cooperation Opportunity List Conference". At the promotion meeting, the unveiling ceremony of Zhongcheng Qingtai Mai Jiarong Feng Du (Jinan) Joint Law Firm was held ceremoniously. Zhongcheng Qingtai Geng Guoyu and Yu Peng lawyers, Hong Kong Mai Jiarong Law Firm Mai Jiarong and Zhao Zhipeng lawyers, and Macao FC Law Li Jianxiong lawyers participated in the unveiling as representatives of the three lawyers. Mayor Yu Haitian, Deputy Mayor Yang Li, representatives of Hong Kong and Macao institutions and enterprises, such as Hong Kong Trade Development Council, Hong Kong Shandong Association, Hong Kong and China Gas, as well as leaders of various districts and counties of Jinan City, the starting area for the conversion of new and old kinetic energy, and representatives of platform companies attended the event. Jointly initiated by Zhongcheng Qingtai Law Firm, Hong Kong Mai Jiarong Law Firm and Macao FC Law, Zhongcheng Qingtai Mai Jiarong Law Firm is the first Lu-Hong Kong-Macao joint law firm in Jinan Area of Shandong Pilot Free Trade Zone. It was established with the approval of Shandong Provincial Department of Justice and its office is located in Jinan. Its practicing lawyers are appointed by the three law firms respectively, aiming at providing high-quality professional legal services for Hong Kong and Macao affairs, to help create a good business environment for the rule of law, in-depth service of Lu Hong Kong and Macao economic and trade cooperation.

2023-06-02

Viewpoint................................................................................................

In recent years, the number of corporate bankruptcy cases has increased year by year. From accepting bankruptcy applications to declaring corporate bankruptcy, to corporate tax registration cancellation, a series of tax issues will be involved, which is easy to cause tax-related disputes. This paper discusses whether the tax late fees involved in the bankruptcy business of enterprises can exceed the principal amount of tax. According to Article 32 of the the People's Republic of China Tax Collection and Administration Law, if a taxpayer fails to pay the tax within the prescribed time limit, and if the withholding agent fails to pay the tax within the prescribed time limit, the tax authority shall, in addition to ordering the payment within a time limit, from the date of payment of the tax, a late fee of five ten thousandths of the overdue tax shall be charged on a daily basis. The provision does not limit the upper limit of late payment fees, which will be calculated as long as the taxpayer owes tax until the tax is paid. According to the Announcement of the State Administration of Taxation on Certain Matters Concerning Tax Administration (State Administration of Taxation Announcement No. 48 of 2019), taxes owed by enterprises, late fees, fines, and interest arising from special tax adjustments shall be calculated and determined on the date on which the people's court decides to accept the bankruptcy application. The "the People's Republic of China Administrative Compulsory Law" stipulates that if an administrative agency makes an administrative decision on the obligation to pay money in accordance with the law, if the party fails to perform within the time limit, the administrative agency may impose a fine or late fee in accordance with the law. The standards for imposing additional fines or late fees shall be notified to the parties concerned. The amount of the additional fine or late fee shall not exceed the amount of the obligation to pay money. On August 22, 2012, the Tax Service Department of the State Administration of Taxation replied to the taxpayer's question on whether the tax late fee can exceed the principal: "The tax late fee increase shall be implemented in accordance with the collection and management law, and the administrative enforcement law shall not apply, and there is no question of whether the tax principal can be exceeded. If the late fee increase data exceeds the principal, it shall be increased in accordance with the provisions of the collection and management law." In judicial proceedings, some courts held that tax late fees could not exceed the principal amount. For example, in the case of the dispute over the confirmation of bankruptcy claims between the Huaiyin District Taxation Bureau of the State Administration of Taxation and Shandong Building Materials Corporation [case No.:(2019) Lu 01 Min Zhong No. 4926], the judgment of the Jinan Intermediate people's Court is that the additional late fee is a punishment measure for taxpayers not paying taxes within the time limit prescribed by law, and a way of administrative enforcement. The second paragraph of Article 45 of the "the People's Republic of China Administrative Enforcement Law" stipulates that "the amount of a fine or late fee shall not exceed the amount of the obligation to pay money". The amount of late fees determined by the manager of the building materials company is in accordance with the law. The Huaiyin District Taxation Bureau requires the manager of the building materials company to confirm the late payment of the tax exceeding the principal, which does not comply with the law and should not be supported. In addition, in the case of Pingshan County Jingye Smelting Co., Ltd. and Nandian Taxation Branch of Pingshan County Taxation Bureau of the State Administration of Taxation and the Tax Administration (Taxation) of Pingshan County Taxation Bureau of the State Administration of Taxation [Case No.:(2020) Ji 0131 Xingchu No. 7], the judgment of the People's Court of Pingshan County of Hebei Province is that the overdue fine for this case far exceeds the tax, with reference to Article 45 of the the People's Republic of China Administrative Enforcement Law: "If the administrative organ makes an administrative decision on the obligation to pay money according to law, and the party concerned fails to perform it within the time limit, the administrative organ may impose a fine or late fee according to law. The standards for imposing additional fines or late fees shall be notified to the parties concerned. The amount of the additional fine or late fee shall not exceed the amount of the obligation to pay money." In this case, the Nandian Taxation Branch of Pingshan County Taxation Bureau of the State Administration of Taxation and the Pingshan County Taxation Bureau of the State Administration of Taxation actually charged Pingshan County Jingye Smelting Co., Ltd. a late fee of 14397072.96 yuan from November 1, 1997 to November 30, 1997. The late fee is obviously improperly calculated and should be corrected. The amount of late fee should not exceed the amount of late tax, 2439975.08 yuan, except for the tax payable of 2439975.08 yuan and late fee of 2439975.08 yuan, the State Administration of Taxation Pingshan County Taxation Bureau Nandian Taxation Branch and the State Administration of Taxation Pingshan County Taxation Bureau collected more than 11957097.88 yuan in late fees from Pingshan County Jingye Smelting Co., Ltd. and should be refunded. As a tax late fee, which law is applicable? It is argued that the the People's Republic of China Tax Collection and Management Law is a special law, the the People's Republic of China Administrative Enforcement Law is a common law, and according to the provisions of the the People's Republic of China Legislation Law, the special law is superior to the common law, and the the People's Republic of China Tax Collection and Management Law should be applied when calculating the tax late fee. There is also a view that the tax authority is also an administrative agency, and its enforcement measures against taxpayers are also subject to the "the People's Republic of China Administrative Enforcement Law". Therefore, the tax principal cannot be exceeded when calculating the tax late fee. In short, in the current tax environment, the legal environment, tax late fees can exceed the amount of tax principal is still a controversial topic. In the bankruptcy business, it is recommended that the administrator should actively communicate and coordinate with the competent tax authorities on whether the tax late fees involved in the bankruptcy business can exceed the principal amount of the tax, so as to avoid tax-related disputes or other liability disputes as far as possible. Deal with tax issues in bankruptcy proceedings in compliance with the law, effectively avoid the risk of practice, and promote the smooth progress of bankruptcy business.

2023-06-01