04
2023-04
On March 31, 2023, the Shandong Women and Children Development Foundation held the fourth meeting of the sixth council. Lawyer Fang Quan, a partner of Shandong Zhongcheng Qingtai (Jinan) Law Firm, was invited to attend the meeting and was hired as Shandong Province The first legal think tank expert of the Women and Children Development Foundation, the appointment period is three years. Yin Huimin, former deputy director of the Standing Committee of the Provincial People's Congress and chairman of the Provincial Women and Children Development Foundation, and Sun Fenghua, party secretary and chairman of the Provincial Women's Federation, attended the meeting and delivered speeches. In his speech, Sun Fenghua fully affirmed the work of the foundation. She pointed out that it is necessary to adhere to a strong foundation and consolidate the foundation, continuously strengthen the foundation's own construction, adhere to the leadership of the party, implement the requirements of "governing good according to law", improve the working mechanism, build a solid organizational structure, pay attention to project evaluation, do a good job in information disclosure, and strengthen the team. Build and promote the standardized, institutionalized and professional development of women's and children's charity. Yin Huimin issued a letter of appointment for the foundation's legal think tank experts. Lawyer Fang Quan was hired as an expert in the legal think tank of the Shandong Women and Children Development Foundation. It is a manifestation of the Shandong Women and Children Development Foundation's implementation of the requirement of "being good by the rule of law". It fully reflects the foundation's service for lawyers and participation in the foundation's legal construction. The affirmation also reflects the foundation's trust in the professional ability of Zhongcheng Qingtai lawyers. Lawyer Fang Quan said that in the future, he will actively participate in the legal service work of the foundation with more enthusiasm, and contribute to the standardization, institutionalization and professional development of women and children's charity.
2023-04-04
03
2023-04
On April 1, Yu Peng, deputy director of Shandong Zhongcheng Qingtai Law Firm, deputy director of Shandong Zhongcheng Qingtai (Jinan) Law Firm and director in charge of international business, Su Na, director of the International Business Center, Yu Yue, lawyer of the Finance Department, Mao Yukun, Li Jiaheng, Du Fengjun, Qiu Xueda, Zhang Xiaoyu and other lawyers of the International Business Center formed a visiting and exchange delegation to Taihua Shangheng (Qingdao) Joint Law Firm. Li Mingjun, director of Taihua Shangheng (Qingdao) Associated Law Firm, Wang Jianjun, director of Taiheng Chengyuan (Yantai) Associated Law Firm, Zhang Qing, executive director of Taihua Shangheng (Qingdao) Associated Law Firm, and Luan Jing, deputy director of Taihua Shangheng (Qingdao) Associated Law Firm, warmly received the visiting delegation and arranged exchange and sharing meetings. Three years ago, April 1 happened to be the day when Taihua Shangheng was officially approved for establishment. Luan Jing, deputy director of the company, introduced and shared the overall situation of Taihua Shangheng in detail from the aspects of establishment, personnel composition, system construction, positioning, advantages, future exhibition planning and development opportunities in the legal service market of the joint venture. In the process, Director Li Mingjun made in-depth key interpretation and analysis of each part. In the process of business development, he used platform thinking to build an all-round, multi-level, three-dimensional and multi-agency linkage of foreign-related legal service platform including international commercial dispute resolution institutions, overseas law firms, notary institutions, domestic and overseas universities, etc. He concluded that the development of joint ventures needs to combine the characteristics of "government demand-led, differentiation and localization, rooted in the local pilot free trade zone, it provides targeted foreign-related legal services for government agencies, free trade zone authorities, domestic foreign-related enterprises, and overseas cooperative enterprises. Director Wang Jianjun also gave a detailed introduction and sharing of the development of Taihengchengyuan in the exchange meeting, introducing the four major service objects of Taihengchengyuan's business development with government agencies, competent departments, enterprise federations, and local key foreign-related enterprises. The fulcrum, combined with the characteristics of the local legal service market in Yantai, takes "marine economy" as the key professional direction, and is committed to providing customers with characteristic and professional foreign-related legal services. Director Su Na introduced the latest situation of Zhongcheng Qingtai Jinan Institute's International Business Center, saying that he had gained a lot of new inspiration from the development process and ideas of Taihua Shangheng and Taiheng Chengyuan. According to the current international situation and the latest changes in domestic foreign-related legal services, Director Yu Peng analyzed and combed the development of foreign-related legal services in Shandong and the progress and resource advantages of the Shandong-Hong Kong-Macao joint venture in Jinan region. Director Yu expressed his heartfelt thanks to Taihua Shangheng and Taiheng Chengyuan for their selfless sharing and spoke highly of the business development ideas and team building of Qingdao and Yantai joint ventures. Director Yu Peng proposed that after the establishment of the Jinan Joint Venture in the future, the three joint ventures will conduct a comprehensive linkage, normalize the exchanges between the three places, give full play to the resource advantages of the joint Hong Kong and Macao law firms in various regions, and jointly provide professional and efficient for Shandong, Hong Kong, Macao and global customers., Comprehensive foreign-related legal services. Director Yu Peng's initiative was also widely recognized and responded positively by the participants. At the end of the sharing meeting, the participants had in-depth exchanges and discussions on the mature high-quality legal service products related to Hong Kong, Macao and overseas capital and financial legal services, customs and tariff planning, innovative services of free trade zone platform, overseas asset allocation, international commercial dispute resolution, etc.
2023-04-03
30
2023-03
Introduction Now, more and more people choose to get out of the siege of marriage, and the subsequent division of property has become a very thorny issue for both parties, especially when some people face divorce after a short marriage. At this time, if the property is divided by the other party Half of it is unfair to the other party. In order to avoid and reduce troubles and property losses, more and more couples will choose to pre-engage and post-marital property agreements during the marriage relationship to pre-dispose the property. So, what about the effect of the marital property agreement? Hot Spot Focus The legal property system applicable in our country is the joint system of income after marriage. The so-called "joint system of income after marriage" means that if both men and women get married, there is no explicit written agreement to change the property system, and there is no property other than the personal property belonging to one of the spouses as stipulated in the the People's Republic of China Civil Code, it is shared by the husband and wife. Therefore, in order to avoid property losses caused by divorce, one party often signs a marital property agreement with the other party. This property agreement is legally binding on both parties. A party to a movable property that is capable of immediate performance and has been delivered is not entitled to the right of avoidance. However, if the real estate is involved, the two parties fail to perform the corresponding transfer procedures in accordance with the agreement of the husband and wife property, and the agreement does not agree to be irrevocable, the agreement may face the risk of being revoked. judicial practice In practice, if one party gives his personal real estate to the other party through the husband and wife property agreement before marriage or during the marriage, but fails to register the transfer of ownership, in the event of divorce, one party claims to cancel the property agreement, while the other party claims to continue to perform, what should be done? In judicial practice, although there is no unified standard of adjudication, there are two different ways of adjudication. First, it is believed that the agreement on property between husband and wife, as long as it is the true intention of both husband and wife and does not violate the mandatory provisions of laws and administrative regulations, it should be recognized as an agreement that is valid and legally binding on both parties. The second is that the agreement between the husband and wife on the property is legal and valid, but according to the relevant provisions of the gift contract, "the donor can cancel the gift before the right to the gift property is transferred"; "if the donated property needs to go through registration and other formalities according to law, it shall go through the relevant formalities"; "the gift contract with the nature of social public welfare and moral obligations such as disaster relief and poverty alleviation, or the notarized gift contract, if the donor does not deliver the donated property, the donee may demand delivery." Agreements in the field of marriage and family often involve the terms of property ownership, and the conclusion, validity, revocation and modification of such agreements do not exclude the application of contract law. The author thinks The agreement between husband and wife to return the real estate to one party belongs to the contents of the property agreement, which is legally binding on both parties. However, there is a risk that the party involved may be revoked if it fails to register the change as agreed. 1. If one party agrees to own the real estate under the individual's name to the other party, but cannot handle the transfer registration because the loan has not been returned or fails to handle the transfer registration for other reasons, does the other party have the right to request continued performance? (1) For the property owned by one of the spouses, the individual shall have full ownership and may carry out the act of disposition on his own, although he may agree to give it to the other party. However, if the transfer is not processed and the agreement provides for an irrevocable clause, the autonomy of the parties' consciousness at the time of signing the property agreement should be respected and irrevocable. One party is obliged to assist the other party in the transfer registration procedures. (2) Combined with the understanding and application of relevant provisions in the judicial interpretation (I) of the Civil Code of the Supreme People's Court, the provisions of the Civil Code on the property relationship between husband and wife are special provisions, and the provisions of the Civil Code on Marriage and Family should be applied in priority. Therefore, the agreement on real estate agreement between husband and wife does not need to go through the formalities of property right change, but should be handled in accordance with the agreement. (3) The property between husband and wife is essentially a contract of marital property system, because the act is based on the identity relationship, and often has the purpose of maintaining feelings or living with each other permanently, so it should be presumed that the contract of marital property system is more reasonable, and the provisions of the agreed property system of husband and wife should be directly applied. 2, because China's current real property rights changes in principle to adopt the registration of effective doctrine, if not in accordance with the agreement to handle the transfer procedures, in the context of contract law, one party should enjoy the right of arbitrary revocation. The real estate given by one party to the other party in accordance with the property agreement may be revoked in accordance with the relevant legal provisions of the contract before the transfer procedures have been completed. China's real estate property rights change is based on the principle of registration effectiveness, therefore, has not yet gone through the real estate transfer procedures of the gift, the real estate donor can revoke the gift at any time, the people's court on the gift of the property party divorce claim to cancel the gift contract request should be supported. Legal provisions 1. Article 209, paragraph 1, of the the People's Republic of China Civil Code stipulates that the establishment, alteration, transfer and elimination of real property rights shall be effective upon registration in accordance with the law. 2. The Civil Code of the People's Republic of China provides that the giver may revoke the gift before the right to the gift property is transferred. The provisions of the preceding paragraph shall not apply to a notarized gift contract or a gift contract with the nature of public welfare and moral obligations such as disaster relief, poverty alleviation and assistance to the disabled, which shall not be revoked according to law. 3. Paragraph 2 of Article 464 of the the People's Republic of China Civil Code stipulates that the legal provisions on identity relations such as marriage, adoption, guardianship and other agreements shall apply; if there are no provisions, the provisions of this part may be applied by reference according to their nature. 4. Article 1065 of the the People's Republic of China Civil Code stipulates that men and women may agree that the property acquired during the marriage and the pre-marital property shall be owned by each, jointly or partly by each or partly jointly. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 1062 and 1063 of this Law shall apply. The agreement between the husband and wife on the property acquired during the marriage and the pre-marital property shall be legally binding on both parties.
2023-03-30
29
2023-03
Viewpoint | An analysis of the exit dilemma of the legal representative of a limited company
[Brief]] Although the legal person has an independent subject status, as an abstract organization, the will of the legal person must be expressed externally by a specific natural person. In the design of China's legal person system, the legal representative naturally enjoys the power to carry out civil legal acts in the name of a legal person. Therefore, the "Civil Code", "Company Law", "Regulations on the Registration of Market Entities" and other laws and administrative regulations regulate the legal representative in many aspects. Unfortunately, there are still many difficulties in the withdrawal of the legal representative. Limited company is the most common form of for-profit legal person, this paper takes the legal representative of the limited company as the perspective of the withdrawal of a brief analysis, for the corresponding problem of the practice to provide a little idea. 1. the concept of legal representative The Civil Code stipulates that, in accordance with the law or the articles of association of a legal person, the person in charge of civil activities on behalf of the legal person shall be the legal representative of the legal person. Where a legal representative engages in civil activities in the name of a legal person, the legal consequences thereof shall be borne by the legal person. Legal requirements for the legal representative of a 2. limited company The Civil Code stipulates that if the executive body is the board of directors or the executive director, the chairman, executive director or manager shall serve as the legal representative in accordance with the provisions of the articles of association of the legal person; if there is no board of directors or executive director, the main person in charge as stipulated in the articles of association of the legal person shall be its executive body and legal representative. The Company Law stipulates that the legal representative of the company shall be the chairman, executive director or manager in accordance with the provisions of the articles of association of the company, and shall be registered in accordance with the law. If the legal representative of the company changes, the change registration shall be carried out. From the aforementioned provisions, it is not difficult to see that the legal representative of a limited company belongs to the matters determined by the articles of association and is the registration of the legal person of the company. In terms of scope, the legal representative shall have the position of chairman, executive director or manager. Chairman, Executive Director, Manager and Qualification of 3. Limited Prohibited 1. Chairman, Executive Director The Company Law stipulates that a limited liability company shall have a board of directors with three to 13 members; the board of directors shall have one chairman and may have a vice-chairman. The method for the election of the chairman and vice-chairman shall be stipulated in the articles of association of the company, and the chairman and vice-chairman of a wholly state-owned company shall be designated by the state-owned assets supervision and administration institution from among the members of the board of directors; a limited liability company with a small number of shareholders or a small scale may have an executive director and no board of directors. The statutory powers of the chairman and executive director include presiding over the meeting of the shareholders, convening and presiding over the meeting of the board of directors, etc. 2. Manager The Company Law provides that a limited liability company may have a manager, who shall be appointed or dismissed by the Board of Directors. The executive director may concurrently serve as the manager of the company. Among them, a wholly state-owned company has a manager, who is appointed or dismissed by the board of directors. With the consent of the state-owned assets supervision and administration institution, members of the board of directors may concurrently serve as managers. 3. Qualification prohibition According to the Company Law, senior management refers to the manager, deputy manager, financial officer, secretary of the board of directors of a listed company and other personnel specified in the articles of association of the company. Therefore, the company law fully restricts the qualifications and obligations of directors, supervisors and senior managers of a limited company, that is, the legal representative of a limited company. The company law's prohibition on the qualifications of company directors, supervisors, and senior managers specifically includes: no capacity for civil conduct or limited capacity for civil conduct; for corruption, bribery, embezzlement of property, misappropriation of property, or disruption of the order of the socialist market economy, they are sentenced to criminal punishment, and the execution period is not more than five years, or they are deprived of political rights due to crimes, and the execution period is not more than five years; if a director, factory director or manager of a company or enterprise that has been liquidated in bankruptcy is personally responsible for the bankruptcy of the company or enterprise, and it has not been more than three years since the date of the completion of the bankruptcy liquidation of the company or enterprise; if he is the legal representative of a company or enterprise whose business license has been revoked or ordered to close down due to violation of the law, it has not been more than three years since the date of the revocation of the business license of the company or enterprise; the large amount of debt incurred by the individual has not been paid off when it is due. The effective requirements of the change of the legal representative of the 4.. The legal requirements and qualification prohibitions of the legal representative have been discussed in detail in the previous article. We inevitably have doubts. If the legal representative is prohibited from qualification or loses the status of chairman, executive director or manager during his duties, does the legal representative Of course to withdraw? In order to solve the related problems, we need to clarify the effective elements of the change of legal representative, this view exists in the registration of the effectiveness of the right to say and registration against the effectiveness of two views, limited to space, this article mainly introduces the mainstream point of view. 1. Internal effect of change of legal representative The Supreme People's Court held that the determination of the legal representative of the company is the result of the company's expression of the common will of all shareholders through the articles of association in the case of the dispute over liability for damage to the company's interests [(2021) Supreme Law No. 2]. The Interpretation of the Civil Procedure Law stipulates that the legal representative of a legal person shall be registered in accordance with the law, unless otherwise provided by law, which does not mean that the legal representative of the company is granted by the company registration authority. The registration of the legal representative of the company is only the confirmation of the intention of the legal representative of all shareholders of the company by the administrative organ. The registration of the legal representative of the company in accordance with the law has the effect of publicity, but does not have the effect of determining the true intention of the company on the issue of the legal representative. Similarly, the Supreme People's Court held in Beihai Rongqin Breeding Co., Ltd. and Beihai Ye Kai Breeding Co., Ltd. in the retrial review and trial supervision of enterprise loan disputes [(2021) Supreme Famin Shen No. 1232] that although the change registration of the company's legal representative has the effect of publicity, failure to register is not an effective requirement for the change of the legal representative. Therefore, the change of the company's legal representative is the result of the company expressing the common will of all shareholders through the articles of association, which is applicable to the validity of civil legal acts. 2. The external effect of the change of legal representative. The Civil Code stipulates that if the actual situation of a legal person is inconsistent with the registered matters, it shall not oppose a bona fide counterpart. The Supreme People's Court Bulletin Case Beijing Gongda Real Estate Co., Ltd. and Beijing Xianghe Three Gorges Real Estate Development Company Real Estate Development Company Real Estate Development Contract Dispute Retrial Case [(2009) Minti Zi No. 76] held that the company's legal representative represented the company in civil affairs in accordance with the law. activity. If the legal representative is changed, the change registration shall be made in the administrative department for industry and commerce. The legal representative of the company has been decided by the superior unit to stop his duties when signing the contract, but has not gone through the change registration. If the company claims that the contract is invalid, the people's court will not support it. The Supreme People's Court Bulletin Case China Environmental Protection Technology Group Co., Ltd. and Thumb Environmental Protection Technology Group (Fujian) Co., Ltd. Shareholder Investment Dispute Appeal Case [(2014) Min Si Zhong Zi No. 20] held that the law stipulates that the change of legal representative The significance of registering is to publicize the basic status of the company's will representation to the public. The legal representative of the industrial and commercial registration has the effect of publicity to the outside world. If an external dispute arises from the company's representation by a third party other than the company, the industrial and commercial registration shall prevail. As for the internal disputes between the company and the shareholders arising from the appointment and removal of the legal representative, the effective resolution of the shareholders' meeting on the appointment and removal shall prevail, and the legal effect of the change of the legal representative shall be produced within the company. Therefore, as the sole shareholder of Thumb Company, Environmental Technology Company, its resolution to appoint the legal representative of Thumb Company is binding on Thumb Company. Therefore, the legal representative, as a registered item of a legal person, has the effect of external registration confrontation. During the term of office, the legal representative is prohibited from qualification or loses the position of chairman, executive director or manager, and the legal representative does not withdraw of course. Complete Exit Process and Dilemma of 5. Legal Representative Taking the articles of association as an example, the manager of a limited company shall be the legal representative. The exit process of the change of the legal representative is that the company shall register the change according to law after changing the manager. The change of the company manager is in principle the authority of the company's board of directors, and the company law stipulates that the board of directors exercises the authority to decide on the appointment or dismissal of the company manager and his remuneration matters. From this, we can see that the change of the company manager as the legal representative is an important prerequisite for the legal entity of the company to exercise its powers in accordance with the law. Similarly, taking the articles of association as an example of the chairman and executive director of a limited company, the change of the legal representative in principle also requires the standardized exercise of the legal person organ of the company as a prerequisite, but at this time, it is necessary to take into account many factors such as the division of authority of the shareholders' meeting and the board of directors, as well as whether the proposed chairman has the status of a director. Obviously, the legal representative's exit dilemma mainly comes from the company's legal person organ's irregular exercise of power, such as in the company deadlock, the company is difficult to form an effective organ resolution, the company has neither the will to change, nor the ability to change. 6. Solution Path In order to solve this dilemma, this paper discusses the following aspects. 1. Legal relationship between the legal representative and the company At present, there are no clear legal provisions on the relationship between the legal representative and the company, and there are many different understandings in practice, among which the mainstream view is that the legal representative and the company belong to the principal relationship. The Supreme People's Court Wei Tongbing, Xinjiang Baota Real Estate Development Co., Ltd. and others requested to change the company registration dispute civil retrial case [(2022) Supreme Famin No. 94] held that the legal representative is the person in charge of the company engaged in civil activities on behalf of the company, and the registration of the legal representative has the effect of publicity in accordance with the law. As far as the company is concerned, the legal relationship between the company and the legal representative is entrusted, and the representation of the legal representative is based on the authorization of the company, which is obtained from the time of appointment to the time of removal of the appointment. After the authority of the company removes the legal representative from his post in accordance with the provisions of the articles of association, the representation of the legal representative shall be terminated. Where the shareholders' meeting of a limited liability company dismisses the legal representative of the company in accordance with the provisions of the articles of association, the executive organ of the company shall implement the resolution of the company and handle the industrial and commercial change registration of the legal representative of the company in accordance with the law. 2. Whether the legal representative's arbitrary removal has legal effect According to the theory of entrustment of the legal representative, the legal representative, as a party to the entrustment relationship, has the right to terminate arbitrarily in principle, but limited to the requirement of the company law on the resignation of a director to continue to perform his duties until the successor arrives, the legal representative's right to terminate arbitrarily may be restricted by the commercial organization law. The Supreme People's Court Beijing Zhongzheng Wanrong Pharmaceutical Investment Group Co., Ltd. and Cao Fengjun Company's Resolution Dispute Re-examination Case [(2017) Supreme Law Minzai No. 172] held that the relationship between the company and the directors belongs to the appointment relationship. In the absence of contrary provisions in the law and the articles of association, the resignation of the directors of the company shall generally have legal effect when the resignation of the directors is delivered to the board of the company. Jin Enshu and Cai Mengjie submitted their resignation letters to Century Shengkang Company on October 31 and November 11, 2011 respectively. At that time, Zhao Bingxian was the legal representative of Century Shengkang Company and could represent Century Shengkang Company in accordance with the law. Because he recognized that he had received the two resignations, the resignations of Jin Enshu and Cai Mengjie had taken effect. Beijing Haidian District People's Court Fu Haiyang and Beijing North Aerospace China Times Technology Co., Ltd. requested to change the company registration dispute in the first instance [(2021) Beijing 0108 Minchu No. 58333] held that according to the provisions of the Company Law, if the directors are not re-elected in time at the expiration of their term of office, or if the members of the board of directors fall below the quorum due to their resignation during their term of office, the original directors shall still perform their duties before re-election. Even if Fu Haiyang resigns as a director, he should still perform his duties as a director before he is re-elected, not to mention that the shareholders' meeting has not made a resolution on the appointment of his directors. Regardless of whether Fu Haiyang leaves Tianhua, the dismissal of his manager position must also be decided by the board of directors. Fu Haiyang did not provide evidence to prove that the board of directors had made a decision to dismiss his manager position, so Fu Haiyang remained the manager of Tianhua Company. Fu Haiyang unilaterally requested Tianhua to remove the identity of its directors and managers without the resolution of the shareholders' meeting and the board of directors of Tianhua Company, and to remove the lack of factual and legal basis for the registration of its directors and managers. 3. Obstacles to enforcement after obtaining a successful judgment Even after the successful judgment, the withdrawal of the legal representative still has enforcement obstacles. Huang Qinhu of Renhua County People's Court of Guangdong Province, Jinsheng Industrial Co., Ltd. of Renhua County of Guangdong Province and other disputes related to the company for the first time [(2022) Yue 0224 Zhi No. 387] held that in the process of execution, because both the applicant and the person subject to execution said that they could not elect a new legal representative, the court sent a letter to Renhua County Market Supervision Administration Bureau to ask whether Huang Qinhu could clean up the legal representative of Jinsheng Industrial Co., Ltd. of Guangdong Renhua, renhua County Market Supervision Bureau replied that only in terms of its functions and current relevant laws and regulations, its system does not remove the operating specifications of the legal representative of the limited company. Due to the inability to clear the identity of Huang Qinhu's legal representative in Guangdong Renhua County Jinsheng Industrial Co., Ltd., the execution of this case cannot be carried out. In accordance with the provisions of item 6 of article 264 of the the People's Republic of China civil procedure law, the ruling is as follows: end the execution of case no 387 of Guangdong 0224 (2022). In summary, the withdrawal of the legal representative is a systemic problem, this article hangs a leak, briefly from the above six aspects of the discussion. In practice, we also need to make a specific analysis from at least three angles: the legal representative itself, creditors and minority shareholders. In the part of legal liability, in addition to civil liability, we also need to comprehensively sort out the relevant judicial liability, administrative liability, and even criminal liability, so as to solve the specific problems encountered in the work.
2023-03-29
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2023-03
On the afternoon of March 27, lawyer Yu Cuilan, senior partner of Zhongcheng Qingtai (Jinan) Law Firm, lawyer Zhang Hao, and lawyer Yin Ji organized and participated in the microfinance bad business cooperation meeting. Wang Tao, President of Shandong Expressway Beiyin (Shanghai) Investment Management Co., Ltd., Li Weihua, President of Shandong Financial Assets Trading Center Co., Ltd., and company leaders Liu Haiwei, Chen Qiang and Zhang Yue, and leaders of Zhongcheng Fund Company Chen Si, Niu Yubo and Li Mingye attended and attended the meeting. During the meeting, lawyer Yu Cuilan summarized and reported on the ongoing cooperation between the parties. It also introduced to the participants the experience of Zhongcheng Qingtai (Jinan) Law Firm in the disposal of non-performing assets in microfinance, and explained in detail the "network system batch disposal of microfinance" developed by Zhongcheng Qingtai (Jinan) Law Firm. Business legal service products ", and the supporting network tools. The leaders at the meeting fully affirmed the early service results of Yu Cuilan's lawyer team, as well as the frontier exploration and business outlook of Zhongcheng Qingtai Jinan's non-performing assets disposal business in microfinance. The parties have fully and carefully communicated with the relevant projects under cooperation. In addition, the participants also shared their experiences and business intersections in asset promotion, supply chain finance, listing and allocation, emergency on-lending and other directions from their respective business fields, and fully discussed the services that Zhongcheng Qingtai lawyers may provide in various fields in the future. This cooperation meeting effectively demonstrated the closed-loop cooperation model of the tripartite roles of funds, platforms, and services in a complete business process, enhanced the trust between the partners, and further deepened the cooperative relationship.
2023-03-29
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2023-03
On March 28, 2023, the 3rd Confucian Business Conference Dongying City Promotion and Matchmaking Event and 2023 Dongying City Investment and Financing Cooperation Innovation and Development Conference was held at the Blue Ocean Yuhua Hotel in Jinan City, Shandong Province. Lawyer Tang Xiang-dong and Zhu Weidong, Senior Partner of Financial Investment Department of Zhongcheng Qingtai (Jinan) Law Firm, were invited to attend the meeting. The conference was hosted by Dongying Municipal People's Government and Quanlian M & A Association, and undertaken by Shandong M & A Federation of Dongying Investment Promotion Bureau. Shandong Federation of Industry and Commerce, Provincial Development and Reform Commission, Provincial Department of Commerce, Provincial Local Financial Supervision Bureau, Shandong Expressway, Provincial SDIC, Provincial Finance, Hengfeng Bank, Zhongtai Securities, All-China Federation of Industry and Commerce, All-China Mergers and Acquisitions Association, Chinese and Foreign A total of about 140 agencies, enterprises and institutions including the Enterprise Federation, Provincial M & A Federation, some of the world's top 500 and multinational companies participated. As a member of Shandong M & A Federation, Zhongcheng Qingtai (Jinan) Law firm fully assisted and participated in the work of the conference. And actively promote the advantages of Zhongcheng Qingtai (Jinan) Law Firm in equity investment, corporate mergers and acquisitions, asset disposal, financial special services, etc. to Dongying development and reform, finance, investment promotion and other management departments at all levels, platform companies, and financial investment companies, Actively invest in legal services to 2023 the innovative development of investment and financing cooperation in Dongying City.
2023-03-29
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2023-03
On March 27, sponsored by the Jinan Federation of overseas Chinese and undertaken by the legal work Committee of the Jinan Federation of overseas Chinese and Zhongcheng Qingtai Law firm, the "discussion of overseas Chinese" and the "Jinan regulations on optimizing the Business Environment" rule of law publicity grass-roots activities were successfully held in Zhongcheng Qingtai Law firm. Dong Yiming, vice chairman of the Jinan Federation of overseas Chinese, director of the legal work Committee of the Municipal Federation of overseas Chinese, deputy director of Zhongcheng Qingtai Law Institute and director of Beijing Institute, and Zhou Jiakui, vice president and secretary general of the legal work Committee of Jinan Federation of overseas Chinese and deputy director of Zhongcheng Qingtai, attended the meeting on the spot. Sun Hongcheng, member and vice chairman of the Municipal Federation of Overseas Chinese, presided over the meeting. This activity is to thoroughly study and implement the spirit of the 20th CPC National Congress, conscientiously implement Xi Jinping's thinking on the rule of law, and strengthen the publicity of the regulations on optimizing the Business Environment in Jinan. At the same time, we should give full play to the role of "consultation studio", adhere to the principle of asking questions, improve the quality of service for overseas Chinese, continuously optimize the business environment, and provide a good legal guarantee for the "project breakthrough year" in our city. At the meeting, we conveyed and studied the regulations of Jinan City on optimizing the Business Environment, and Zhu Xueting, secretary general of the Municipal Federation of overseas Chinese, read out the activity plan of the Municipal Federation of overseas Chinese on carrying out the "project breakthrough year" to optimize the business environment and the rule of law publicity month. Vice Chairman Dong Yiming explained the prevention and countermeasures of legal risks in overseas Chinese business enterprises, especially start-ups, and explained a series of risks that will be touched by the parties from the beginning of the establishment of the enterprise to the future management and financing. Director Zhou Jiakui reported on the work done by the Legal Work Committee since last year to safeguard the rights and interests of overseas Chinese and escort the development of overseas Chinese enterprises and its main plans for this year. Subsequently, Xing Zhiqing, Secretary-General of Jinan Xinqiao Innovation and Entrepreneurship Alliance, Vice President of Jinan Overseas Chinese Federation Chamber of Commerce, Chairman of Shandong Pansheng Biotechnology Co., Ltd., and Ma Zheng, General Manager of Shandong Ziyuan Information Technology Co., Ltd., and other outstanding representatives of the overseas Chinese community conducted interactive exchanges on the "Jinan City Optimization Business Environment Regulations", actively made suggestions and suggestions, the atmosphere was active, and the discussion was lively. The Municipal Federation of overseas Chinese organized everyone to publicize the rule of law around the regulations on optimizing the Business Environment of Jinan City, and held discussions and exchanges on the protection of the rights and interests of overseas Chinese enterprises, fully listened to the difficulties of overseas Chinese businessmen in economic development and provided solutions, and provided legal support for overseas Chinese businessmen and the economic and social development of Jinan City. At the same time, it has improved the rule of law thinking and the ability to handle affairs in accordance with the law of the cadres of the Federation of Overseas Chinese and overseas Chinese enterprises, which will help to further form a good atmosphere of respecting the law and abiding by the law in the overseas Chinese community. Chairman Sun Hongcheng said in his presiding speech that in recent years, under the strong leadership of the Municipal Party Committee and the Municipal Government, under the strong guidance of the Chinese Federation of Returned Overseas Chinese and the Provincial Federation of Returned Overseas Chinese, and the strong support of the CPPCC Taiwan, Hong Kong and Macao Overseas Chinese and Foreign Affairs Committee, the Municipal Federation of Returned Overseas Chinese has combined its actual work and gave full play to it. The role of "consultation with overseas Chinese" activities, we have woven the "two networks" of the system network and the collaboration network, innovated the way of popularizing the law, carried out in-depth publicity and education on the rule of law in the overseas Chinese community, and achieved tangible results in serving the overall situation, building consensus, making suggestions and government, and helping enterprises to alleviate difficulties. The overseas Chinese community has created a good atmosphere of advocating the law, knowing the law and abiding by the law, and safeguarding rights in accordance with the law. It is hoped that overseas Chinese federations at all levels will take the first anniversary of the implementation of the regulations on optimizing the Business Environment in Jinan as an opportunity to further improve their political position, earnestly strengthen their responsibilities, continue to make efforts in policy publicity, and seek practical results in helping enterprises to alleviate difficulties. focus on safeguarding the legitimate rights and interests of the broad masses of returned overseas Chinese and their family members, overseas Chinese businessmen and enterprises, continuously optimize the business environment, and constantly stimulate the vitality of market players, to contribute the wisdom and strength of the overseas Chinese community to build a higher level of rule of law in China and to create a new situation in the construction of a socialist modernization and strong provincial capital in a new era. Jinan Xinqiao Innovation and Entrepreneurship Alliance and Jinan Overseas Chinese Federation Chamber of Commerce, in order to thank Zhongcheng Qingtai Law Firm for its legal protection for overseas Chinese enterprises and their relatives, specially present Zhongcheng Qingtai Law Firm with the banner of "Safeguarding the Benefits of Overseas Chinese and Escorting the Development of Overseas Chinese Enterprises in accordance with the Law. Cheng Yuming, Deputy Director of the Hong Kong, Macao and Taiwan Overseas Chinese and Foreign Affairs Committee of the CPPCC, Yu Mei, Party Secretary of the Federation of Overseas Chinese in Lixia District, Zhu Zhengda, Party Secretary and Chairman of the Federation of Overseas Chinese in Central City, Sun Yanling, Chairman of the Federation of Overseas Chinese in Huaiyin District, Jiao Qiwang, Party Secretary of the Federation of Overseas Chinese in Jiyang District, Jiang Shuping, Deputy Director of the Center of Taiwan, li Yunjie, general manager of Jinan Yingyun Optoelectronic Technology Co., Ltd., Luan Caihong, general manager of Shandong Daqian Management Consulting Co., Ltd., Geng Haokun, chairman of Shandong Perui Medical Technology Co., Ltd., Wang Liang, assistant chairman of Demai International Industry Group and general manager of Shandong Warner Industrial Park Operation Management Co., Ltd., Li Zhen, chairman of Shandong Dashuo Education Technology Co., Ltd., and Chen Jinling, deputy director of Zhongcheng Qingtai (Jinan) Law Firm, lawyers Song Xiangxiao, Zhao Jiao, Sun Bo and others participated in the activity.
2023-03-29
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2023-03
Viewpoint... Talk about the legal risks and prevention of labor dispatch and labor outsourcing.
Recently, when accepting perennial consultants and conducting legal compliance reviews for enterprises, it was found that many enterprises could not distinguish between labor dispatch and labor outsourcing. In the process of use, there were cases of confused use and inappropriate use. This paper briefly distinguishes the above two composite forms of employment so that everyone can make more accurate use of different forms of labor. Definition of 1. 1. Labor dispatch: Labor dispatch refers to a form of employment in which an enterprise (labor dispatch unit) dispatches the recruited workers to the employing unit by way of operation, and the employing unit directly manages the labor process of the workers. Article 59 of the "the People's Republic of China Labor Contract Law" states: "A labor dispatch unit shall enter into a labor dispatch agreement with the unit that accepts labor in the form of labor dispatch (hereinafter referred to as the employer). The labor dispatch agreement shall stipulate the number of posts and personnel to be dispatched, the duration of dispatch, the amount and payment method of labor remuneration and social insurance premiums, and the liability for breach of the agreement. The employing unit shall determine the dispatch period with the labor dispatching unit according to the actual needs of the job position, and shall not divide the continuous employment period into several short-term labor dispatch agreements". Article 66 states: "Labor contract employment is the basic form of employment in China's enterprises. Labor dispatch is a supplementary form and can only be implemented in temporary, auxiliary or alternative jobs. The temporary jobs specified in the preceding paragraph refer to jobs that last for no more than six months; auxiliary jobs refer to non-main business jobs that provide services for main business positions; alternative jobs refer to workers of the employing unit. During a certain period of time when you are unable to work due to off-the-job study, vacation, etc., you can be replaced by other workers. The employing unit shall strictly control the number of labor dispatched and shall not exceed a certain proportion of its total employment, and the specific proportion shall be prescribed by the labor administrative department of the State Council." It can be seen that labor dispatch involves three parties, workers, employers, employers. Moreover, labor dispatch can only be implemented in temporary, auxiliary and alternative positions, and the total number of useful workers is generally not more than 10% of the total unit employment. 2. Labor outsourcing refers to the employment form in which the employing unit (the contracting unit) contracts the business to the contracting unit, and the contracting unit arranges its own personnel to complete the corresponding business or work content according to the requirements of the employing unit (the contracting unit). The contract issuing unit and the contractor form a civil contractual relationship based on the outsourcing contract, which is not subject to the adjustment of the labor contract law. The contract issuing unit and the contractor agree to deliver certain work of the contract issuing unit to the contractor for completion, and the contract issuing unit shall pay certain expenses to the contractor. The contractor establishes labor relations with the employed workers and manages and controls the workers. The contract issuing unit cannot directly manage and control the workers of the contractor. 2. legal risk and prevention In the practical process, because labor dispatch is limited by the number of posts and employment, in order to avoid the risk of labor dispatch, many enterprises adopt the form of labor outsourcing. However, due to the inability to clarify the difference between labor dispatch and labor outsourcing, there are situations in which the contracting unit directly manages the outsourcing personnel, arranges work, supervises employment, etc., which has actually replaced the status of the contracting unit and transformed it into an employment unit, the legal relationship between the parties has become a labor dispatch in nature. Once a dispute occurs, the contracting unit will not be able to circumvent the labor law's main responsibility on the grounds of business outsourcing. In July 2022, Jiangsu Province, Shanghai City, Zhejiang Province and Anhui Province stipulated in the notice on the issuance of the guidelines on compliance and employment of labor dispatch in the Yangtze River Delta region that "when outsourcing labor services, employers should pay attention to the difference between labor outsourcing and labor dispatch, so as to avoid the situation that labor outsourcing is actually labor dispatch. For example, if an enterprise contracts its business to another unit, but the laborers of the contracting unit accept the command and management of the enterprise, provide labor according to the arrangement of the enterprise, or provide labor in the name of the enterprise, it may be considered as labor dispatch rather than labor outsourcing. " How to prevent the above-mentioned legal risks, first of all, we must clearly distinguish between labor dispatch and labor outsourcing. I believe you have read many such articles before and analyzed them from the perspectives of subject, nature, applicable law, etc., but the more different angles, the more confusing it is. We can simply start from the most essential point, which is the participation of the labor process. That is, labor dispatch enterprises pay attention to the management of the labor process, the employing unit directly arranges the work of the dispatched personnel, the employing unit, that is, the dispatching company, does not participate in the labor process, while the contracting party of labor outsourcing does not participate in the labor process, only pays attention to the work results. By distinguishing this from the above, we can do a good job of legal risk prevention. Enterprises need to pay full attention to the business outsourcing contract signed with the contractor, avoid the formation of de facto labor relations between the employer and the contractor's employees through the terms of the contract, and avoid the terms that the company and the contractor's employees have management relations, that is, the whole agreement involves the management of "people" as little as possible. The contract should also specify the rights and obligations between the employer and the contractor, and the terms of the contract must be complete to avoid unfounded disputes. At the same time, the contractor should be carefully selected. If the state or local government departments have special requirements for service qualifications, professional contractors with corresponding qualifications should be selected, and the scale, credit and management mode of the contractor should be paid attention to. They should sign written labor contracts with employees, pay social insurance for employees, and pay labor remuneration and welfare benefits directly to labor outsourcing personnel.
2023-03-28
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2023-03
Viewpoint | Legal analysis of capital contribution by "creditor's rights to third parties"
With the reform of the company system and the diversification of investment forms, capital contribution in the form of creditor's rights is gradually included in the scope of investors' choice. It is very common for investors to convert their claims on the subject company into equity in the subject company, but there is no clear stipulation as to whether "claims on third parties" are a legal and protected form of capital contribution. Contribution by "claim to three persons" means the way in which the investor contributes to the subject company with his or her claim to a third party other than the subject company. Relevant 1. laws and regulations and their evolution (I) relevant legal provisions According to the revision and evolution of the above-mentioned company law, the provisions of the company law on the form of shareholders' capital contribution are revised from the enumeration form in 1993, that is, "capital contribution can be made in currency, or in kind, industrial property rights, non-patented technology and land use rights as capital contribution", to "capital contribution can be made in currency, or non-monetary property that can be valued in currency and can be transferred according to law, except for property that which cannot be used as capital contribution according to laws and administrative regulations", it also lists non-monetary assets that can be funded in kind, intellectual property rights and land use rights. However, the company law has never made a clear provision on the possibility of making capital contributions by "claims to third parties. Regulations of relevant (II) departments The "Administrative Measures for the Registration of Corporate Debt-to-Equity Conversion" implemented on January 1, 2012 clarified for the first time that creditor's rights can be used as one of the ways of shareholder capital contribution, that is, debt-to-equity conversion, but it did not involve whether to allow capital contribution by "creditor's rights to third parties. The regulations on the Administration of the Registration of registered Capital of companies (2014), which came into effect on March 1, 2014, abolished the above-mentioned measures for the Administration of the Registration of the conversion of Corporate creditor's Rights into Equity, and deleted that the creditor's rights converted into company equity should comply with the provisions on the conversion of contractual debts between creditors and companies into company equity in the operation of the company. The "Detailed Rules for the Implementation of the Regulations on the Registration and Administration of the People's Republic of China Market Entities" (hereinafter referred to as the "Detailed Rules for the Implementation of Registration and Administration") implemented on March 1, 2022 abolished the "Regulations on the Registration and Administration of Company Registered Capital (2014)", although it is still unclear whether The company is funded by "creditor's rights to third parties", but the original provisions on capital contribution by creditor's rights are revised, it should be clear and complete, and can be evaluated and transferred in accordance with the law, in accordance with the provisions of the articles of association of the company ", and it is not prohibited to make capital contributions with" claims on third parties. 2. relevant judicial precedents that recognize the effect of "claims on third parties". (I) Li Xiangcai and Changchun Zhengda Real Estate Development Co., Ltd. and Changchun Construction State-owned Assets Management Co., Ltd. Shareholder Investment Dispute Re-trial Case-(2020) Ji Min Shen No. 694 The judgment of the Jilin Provincial Higher People's Court: The first paragraph of Article 24 of the the People's Republic of China Company Law promulgated in 1993 stipulates: "Shareholders may make capital contributions in money, or they may make capital contributions in kind, industrial property rights, non-patented technology, and land use rights. The real thing, industrial property rights, non-patented technology or land use rights as capital contributions must be evaluated and the property must be verified, and the price must not be overvalued or undervalued. The valuation of land use rights shall be handled in accordance with the provisions of laws and administrative regulations." The aforementioned law does not restrict shareholders from making capital contributions with creditor's rights, and the creditor's rights have actual value. According to the "certificate" issued by the general office of Changchun Municipal People's Congress on May 18, 2011 and the "situation statement" issued by Jiyang company on January 30, 2011 and related transfer bills, the creditor's rights and contributions involved in the case have been repaid by the general office of Changchun Municipal People's Congress and Changchun industrial management cadre school respectively. (II) Chen Xiuhua and State Energy Group Ningxia Coal Industry Group Co., Ltd. Re-trial of Contract Dispute-(2019) Jingmin Shen No. 4656 The judgment point of view of the Beijing Higher People's Court: According to the evidence in the case, it can be concluded that the signing of the Transfer Agreement and the Investment Joint Venture Contract is essentially the consideration paid by Shenhua Company to acquire the equity of Baiji Jinguo Company with its creditor's rights to Fengchen Company and its Xining Branch. The nature of the creditor's rights of 12.6036 million yuan is essentially a special way of equity contribution. The debtor Fengchen Company sold the property of the subject matter to be executed without authorization, which made the execution case impossible, resulting in the fact that Ningxia Coal Industry Company could not perform its capital contribution obligation by realizing its creditor's rights. Ningxia Coal Industry Company shall continue to pay the remaining price in accordance with the agreement of the Memorandum and compensate for the interest loss arising from the failure to pay in time due to the breach of contract. Ningxia Coal Company shall fulfill its capital contribution obligation when it signs the Transfer Agreement on October 25, 2001, so the interest shall be calculated from the date on which Ningxia Coal Company shall fulfill its obligation to pay the equity consideration. (III) Yang Xueqing and Yizheng Zhentong Copper Co., Ltd., Zhu Yong, Xie Jianxin, Yizheng Yuetang Town Agricultural Comprehensive Service Center Dispute Appeal Case-(2011) Su Shang Zhongzi No. 0156 The judgment of the Jiangsu Provincial Higher People's Court: China's law does not explicitly prohibit shareholders from using their claims to third parties as capital contributions, and the original judgment held that the relevant laws of our country denied the effect of shareholders using their claims to third parties as capital contributions, and the reason for the judgment lacked legal basis, and the Court corrected it. However, as mentioned above, the creditor's rights of 4.99 million yuan in the net assets of the original Zhentong Material Factory contributed by Yang Xueqing, Zhu Yong, Xie Jianxin and others are actually formed by the withdrawal of the contribution of Zhentong Material Factory, and the debtor Taizhou Spotlight Company will be canceled within a few days after receiving the payment. There is no other evidence to show that the creditor's rights have been realized or can be realized in the future, therefore, the original judgment held that Yang Xueqing, Zhu Yong and Xie Jianxin had significant defects in the use of the creditor's rights as capital contributions, and should bear the corresponding supplementary liability if the defects were not made up. This view and the corresponding judgment made accordingly are correct. If the investor effectively makes up for the defects of capital contribution within a reasonable period of time, it shall be determined that he has fulfilled the obligation of capital contribution. Therefore, if the creditor's rights of 4.99 million yuan against Taizhou Spotlight Company recorded in the accounting books of Zhentong Material Factory have been realized, Yang Xueqing, Zhu Yong and Xie Jianxin do not need to bear the corresponding supplementary compensation liability for the 4.99 million yuan. However, judging from the facts found out in this case, the existing evidence is not sufficient to prove that Zhentong Material Factory's claim of 4.99 million yuan to Taizhou Focus Company has been realized. Therefore, the original judgment that Yang Xueqing, Zhu Yong and Xie Jianxin bear the corresponding supplementary compensation liability is correct. The conditions to be met by the "claims on third parties" used by the 3. to contribute capital. Clear ownership and integrity of (I) The funder shall have a direct right basis for the "claims on third parties" used to contribute, I .e. the rights of "claims on third parties" formed through specific legal relations shall be vested in the funder. At the same time, the "claim to a third party" used to contribute capital should be free from other rights burdens or defects in rights, the creditor should have fulfilled all the obligations corresponding to the right to exercise the claim, the creditor has the right to exercise the right to the debtor, and the debtor has no other defenses. (II) may be assessed and transferred in accordance with the law. The "claim to a third party" used to contribute capital should have the value of the asset and the claim should be disposable and negotiable, and the corresponding value can be determined by evaluation. According to Article 545 of the Civil Code, claims may be transferred except for claims that are not transferable according to the nature of the claim, the agreement of the parties or the provisions of the law. In addition, the "creditor's rights to third parties" used for capital contribution should be transferable, and according to the nature of the creditor's rights and legal provisions, it should not be a non-transferable creditor's rights, and there should be no relevant agreement between the investor and the debtor or other interested parties to restrict or prohibit the transfer of creditor's rights. (III) in accordance with the Articles of Association According to the provisions of Article 13 of the Rules for the Implementation of Registration Administration, the provision of capital contribution by the creditor's rights of domestic companies in accordance with the law shall comply with the provisions of the articles of association of the company. Therefore, the subject company's articles of association should not limit the capital contribution of the shareholders of the company to "claims to third parties", otherwise the capital contribution of the funder to "claims to third parties" will violate the relevant provisions of the subject company's articles of association. The (IV) debtor is a domestic company. Article 13 of the Rules for the Implementation of Registration Administration limits the scope of capital contribution by creditor's rights to "creditor's rights of domestic companies". Therefore, when the investor chooses to make capital contribution by "creditor's rights to third parties", it is recommended to choose "third parties" (I. e. debtors) as the creditor's rights of domestic companies. The legal risks and suggestions of 4.'s capital contribution by "creditor's rights to the third party". The legal risk of (I) capital contribution by "creditor's rights to the third party". The current Company Law and the Rules for the Implementation of Registration Administration do not exclude the mode of operation of "creditor's rights to third parties", but the case of "creditor's rights to third parties" is only more common in SPV companies, and very few in operating entities. In view of the fact that the contribution of "claims to third parties" depends on the solvency and willingness of the third party, the third party as a debtor is independent of the funder and the subject company, and there is great uncertainty as to whether the claims can be recovered and the amount of recovery. In addition, the realization of the funder's "claims against third parties" may be subject to litigation or arbitration and enforcement procedures, and there is uncertainty about the period and cost of claims recovery. If a third party has an objection, defense or set-off claim to the claim, it may affect the successful recovery of the claim and the final value of the claim. Article 28 of the Company Law stipulates: "Shareholders shall pay in full and on time the amount of capital contributions they have paid as stipulated in the articles of association of the company. If a shareholder makes a capital contribution in currency, the full amount of the capital contribution in currency shall be deposited in the bank account opened by the limited liability company; if the capital contribution is made in non-monetary property, the transfer of its property rights shall be handled in accordance with the law. If a shareholder fails to pay the capital contribution in accordance with the provisions of the preceding paragraph, in addition to paying the full amount to the company, he shall also be liable for breach of contract to the shareholders who have paid the capital contribution in full and on time"; Article 83, paragraph 2 stipulates: "If the promoter fails to pay the capital contribution in accordance with the provisions of the preceding paragraph, he shall be liable for breach of contract in accordance with the promoter's agreement." Article 9 of the "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law" (hereinafter referred to as "Interpretation III of the Company Law") stipulates: "The capital contribution of non-monetary property has not been evaluated in accordance with the law, and the company, other shareholders or company creditors If it is requested to determine that the investor has not fulfilled the obligation of capital contribution, the people's court shall entrust a legally qualified evaluation agency to evaluate the property. If the price determined by the evaluation is significantly lower than the price set in the articles of association, the people's court shall determine that the investor has not fully fulfilled the obligation of capital contribution in accordance with the law"; the second paragraph of Article 13 stipulates: "if the creditors of the company request that the shareholders who have not fulfilled or fully fulfilled the obligation of capital contribution shall bear supplementary compensation liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the non capital contribution, The people's capital contribution shall be supported; the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already assumed the above-mentioned responsibilities, and other creditors make the same request, the people's court will not support it"; Article 15 stipulates: "After the investor contributes with non-monetary property that meets the legal conditions, due to Market changes or other objective factors cause the capital contribution to depreciate, and the company, other shareholders or company creditors request the investor to bear the responsibility of making up the capital contribution, the people's capital contribution, the people's court will not support. However, unless otherwise agreed by the parties." According to the above regulations and judicial cases, if the actual value of the "creditor's rights to the third party" property used for capital contribution is found to be significantly lower than the capital contribution value set by the articles of association after the establishment of the company or the delivery of capital contribution, the shareholder who delivers the capital contribution has the risk of making up the difference of its capital contribution and assuming the liability for breach of contract to the shareholder who has paid the capital contribution in full and on time, and the risk of additional liability for the unliquidated portion of the Company's debt to the extent of the unfunded principal and interest. If, after a shareholder contributes with a true and legal "creditor's right to a third party", the contributed property depreciates due to market changes or other objective factors, and the company, other shareholders or creditors of the company request the shareholder to bear the responsibility for making up the contribution, if the parties separately agree on the way to bear the responsibility, there is a risk that the shareholder will bear the corresponding responsibility according to the agreement. The relevant proposal to (II) the contribution of "claims to third parties". 1. Determine that the claim meets the conditions for being the subject of the capital contribution. To make capital contribution with "creditor's rights to third parties", it shall be confirmed that the relevant creditor's rights meet the conditions as the subject of capital contribution, and attention shall be paid to checking the relevant information on the formation of creditor's rights, including but not limited to the contracts formed by the creditor's rights, payment vouchers for current payments, effective judgment documents, articles of association of the subject company and other documents, so as to judge whether the "creditor's rights to third parties" used for capital contribution meet the relevant provisions. 2, the contribution of claims to carry out the assessment procedures. According to the provisions of the second paragraph of Article 27 of the Company Law, "the non-monetary property as capital contribution shall be assessed and valued, and the property shall not be overvalued or undervalued. Where laws and administrative regulations have provisions on valuation, such provisions shall prevail". According to the provisions of Article 9 of the Interpretation III of the Company Law, "if the company, other shareholders or creditors of the company request that the contributor fail to fulfill the obligation of capital contribution, the people's court shall entrust a legally qualified evaluation institution to evaluate the property. If the price determined by the evaluation is significantly lower than the price set in the articles of association, the people's court shall determine that the contributor has not fully fulfilled the obligation of capital contribution in accordance with the law". There are different understandings in practice for the pre-procedure of assessing whether it is a non-monetary property contribution. According to the judgment (2013) Minshen Zi No. 2479, the Supreme Law specifically understands Article 9 of the Interpretation III of the Company Law as follows: "If a shareholder makes capital contribution in non-monetary terms, the legal evaluation and valuation is not a prerequisite for him to fulfill his capital contribution obligations; Only when the company, other shareholders or creditors of the company claim to the court that the shareholders who make capital contributions in non-monetary terms have not fully fulfilled their capital contribution obligations, the court will the evaluation and valuation procedures. In this case, the negotiated price of the right to use the land involved in the case in the articles of association of the US-China High-tech Company and Xiang Hualiang is 15 million yuan. As long as the land use right transfer procedures are handled, it should be regarded as the US-China High-tech Company has fully fulfilled its obligation to contribute capital." However, in order to protect the interests of the company, shareholders, the company's creditors and other parties, when the shareholders make capital contributions as non-monetary property "claims to third parties", it is still recommended to perform the corresponding evaluation procedures and value the claims after verifying that the claims are true, legal, valid and transferable. 3, in accordance with the law to handle the transfer of property rights procedures. According to the provisions of the first paragraph of Article 28 of the Company Law, if a shareholder makes a capital contribution with non-monetary property, he shall go through the formalities for the transfer of his property rights in accordance with the law. Therefore, if the capital contribution is made by "claims to third parties", the funder shall legally transfer the real claims to the subject company and handle the transfer of its property rights in accordance with the law. The investor shall sign the relevant "Creditor's Rights Transfer Agreement" with the target company and the debtor, and the investor shall also sign the "Capital Increase Agreement" and other documents with the target company, and specify in the agreement the cause and time of the creditor's rights, the amount of the creditor's rights, the debtor's situation, the performance of the creditor's rights, the debtor's confirmation of the creditor's rights, the amount of the creditor's rights to be converted into capital contribution and the method of the price, dispute, the dispute resolution and the liability for breach. 4, the implementation of the corresponding resolution or approval procedures. According to Article 37 of the Company Law, "the shareholders' meeting exercises the right to increase the company's
2023-03-28
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2023-03
Viewpoint | A brief analysis of real estate execution issues
Foreword As an important asset of the executed person, real estate has always been the focus of the application for execution. This paper makes the following analysis and discussion on the implementation problems that may be encountered in the implementation of real estate, such as illegal construction of houses, existence of leasing, state-owned land transfer and state-owned land allocation of houses that have not yet been completed and accepted. Execution of Illegal Houses Built by 1. Executed Persons The illegal buildings here refer to the buildings that violate the land law, planning law, construction law and other relevant laws and regulations, and have not obtained the construction project planning permit or temporary construction project planning permit, or have not been constructed according to the above permission requirements. Illegal construction can be divided into procedural illegal construction and substantive illegal construction. Procedural illegal construction means that the building does not hinder urban planning, and the builder must apply for a real estate certificate in accordance with certain procedures. Substantial illegal construction means that a building cannot be corrected according to procedures to make it a legal building. Article 64 of the "the People's Republic of China Urban and Rural Planning Law" distinguishes between the legal responsibilities of procedural illegal construction and substantive illegal construction, "... If corrective measures can be taken to eliminate the impact on the implementation of the plan, corrections shall be made within a time limit, and the construction project A fine of 5% to 10% of the cost; if corrective measures cannot be taken to eliminate the impact, the physical object or illegal income shall be confiscated, and a fine of less than 10% of the construction project cost may be imposed." Implementation of Illegal Building of (I) Procedure According to Article 231 of the the People's Republic of China Civil Code, "the establishment or elimination of real rights due to legal construction, demolition of houses and other factual acts shall take effect from the achievement of the factual acts". Legal construction acts can establish real rights. Buildings that have not obtained real property rights due to illegal construction procedures naturally cannot establish real property ownership. However, the possessive interest in the illegal construction of the house may be the subject of the execution of the disposal. The Higher People's Court of Shandong Province issued the "Answers to Difficult Legal Issues in Enforcement", which stipulates that unlicensed houses built on state-owned construction land do not belong to the property that the court shall not seal up, seize, or freeze as stipulated by the law and judicial interpretation. Therefore, for unlicensed houses built on state-owned construction land, they can apply to the people's court for execution and disposal. In the execution, the people's court should be applied to solicit opinions from the housing registration authority on whether the house can be converted into a licensed house, and it should be used as a reference for determining the value of an unlicensed house. When disposing of a house that has not gone through the initial registration, if it has the initial registration conditions, the court can issue a "Notice of Assistance in Enforcement" to the housing registration agency according to law after disposal; if it does not have the initial registration conditions for the time being, the court can issue a "Notice of Assistance in Enforcement" to the housing registration agency after disposal, and state that the buyer or the person who has completed the relevant procedures and met the initial registration conditions, the housing registration agency shall register in accordance with the Notice of Assistance in Implementation; If the initial registration conditions are not met, the "status quo disposal" shall be carried out in principle, I .e. the status quo of the house that does not meet the initial registration conditions shall be disclosed before disposal, the buyer or the transferee shall acquire the house according to the status quo of the house's rights, and the subsequent property right registration shall be the responsibility of the buyer or the transferee. The Supreme People's Court issued the Supreme People's Court's Notice on Forwarding the Ministry of Housing and Urban-Rural Development.<关于无证房产依据协助执行文书办理产权登记有关问题的函>The Notice also makes relevant provisions. In addition, in the online auction announcement, the status quo that the house does not have the registration conditions, the nature of the land, and the related risks of the buyer should be disclosed. Even if the illegal building is demolished due to violation of relevant laws and regulations in the future, it also belongs to the executed property. Within the acceptable and expected risk range of bidders. The legal effect of the transfer of property rights can still occur in the execution of the auction decision made by the court, without the need for publicity through the registration of property rights changes. Related Provisions: Article 14 of the Provisions of the Supreme People's Court on Several Issues Concerning Online Judicial Auctions by People's Courts Where online judicial auctions are implemented, the people's court shall give special reminders to the following matters through the online judicial auction platform on the day the auction announcement is issued: (3) Known defects and rights burdens of the auction property; (IV) the auction property is subject to the status quo of the physical object, the bidder may apply for on-site samples; (V) the bidder decides to participate in the bidding, it is deemed to have full knowledge of the auction property and to accept all known and unknown defects of the auction property; the deposit will not be refunded after the (VII) buyer repents. Article 15 The person subject to execution shall provide relevant information and explanations on the quality of the property to be auctioned. If the people's court has made public announcements and special reminders in accordance with the requirements of Articles 13 and 14 of these regulations, and declared in the auction announcement that it cannot guarantee the authenticity or quality of the auction property, it shall not bear the liability for defect guarantee. Similar cases: Case 1. Supreme People's Court (2016) Supreme Law Enforcement No. 161 The court believes that before the illegal building is demolished or demolished by the relevant departments by exercising public power, the illegal building still has a certain use value. Although the person subject to execution does not have ownership of the illegal building, its long-term possession, use and lease The income obtained should be regarded as the executable property with use value. Article 2 of the Notice of the Supreme People's Court Forwarding the Enforcement of Unlicensed Real Estate by the Ministry of Housing and Construction (hereinafter referred to as the Notice) clearly states that "when disposing houses that have not been initially registered in the enforcement procedure, ...... does not have the conditions for initial registration, in principle, 'status quo disposation' is carried out, that is, the current situation of the house that does not have the conditions for initial registration is disclosed before disposal, and the buyer or the owner acquires the house rights, subsequent property registration matters are the sole responsibility of the buyer or the recipient." The Intermediate People's Court of Nanping City, Fujian Province, according to the status of the building to deal with the requirements of the notice. The enforcement ruling clearly informs the current situation of the illegal building, and also indicates the fire safety and other risks that may arise after the delivery of the building. The enforcement ruling only changes the factual state of possession of illegal buildings, does not involve the ownership of buildings, does not legalize illegal buildings through assistance in enforcement, and does not affect the administrative authorities' decision to deal with illegal buildings in the future. Enforcement of (II) Substantive Illegal Buildings There is a view that real estate that has not been examined and approved by the administrative department or built in accordance with the approved content belongs to "articles or property rights prohibited by laws and administrative regulations" as stipulated in Article 7 of the auction Law, and the court shall not trade, transfer or circulate by auction, sale, debt repayment, etc. The court's compulsory disposal of illegal buildings is suspected of legalizing illegal buildings through judicial actions, and is suspected of infringing the administrative powers of the administrative department. Therefore, the actual illegal buildings cannot be auctioned. However, the author believes that the construction method itself has temporary availability. Before the illegal building is demolished, confiscated or dismantled by the administrative department, it still has the beneficial property of property, which can be used not only in the person subject to execution, but also in others, and should be regarded as the executable property with temporary use value. However, for the actual illegal construction, it should not be legalized through judicial execution. The court auction does not take the transfer registration of the ownership of the illegal construction as a precondition. In the judicial auction and other disposal, the bidder must fully and truthfully perform the obligation of informing the defect risk. The informing is divided into three levels: first, informing the rights and utility defects of the auctioned real estate. It is necessary to specially prepare and announce the "Notice of Defects in Auctions" for such cases to clarify the illegal situation of the real estate involved. The second is to warn that the registration of property rights may be blocked. The relevant text of the notice is marked in bold, underlined and other significant ways to warn bidders that after winning the illegal building, they have the right to temporarily possess, use and earn income from the illegal part of the real estate. The illegal part of the real estate cannot be reflected in the ownership certificate, and even the legal part is prohibited from issuing certificates due to the involvement of the illegal part. The third is to prompt the consequences of holding illegal buildings and give reasonable suggestions. Remind bidders to correctly handle historical issues, and clarify that in accordance with Article 64 of the Urban and Rural Planning Law, the administrative department has the right to take penalties such as "correction within a time limit and fines, demolition within a time limit, confiscation of physical objects or illegal income" for illegal buildings. If the illegal part can be physically separated from the legal building, it is recommended to dismantle it by itself, and for the illegal building that can be corrected, it is recommended to go through the relevant procedures in time. Relevant provisions: "on the implementation of difficult legal issues in Shandong High Court" 8. Can the court enforce unlicensed houses built on state-owned construction land? A: unlicensed houses built on state-owned construction land are not property that the courts may not seal up, seize or freeze as stipulated by the law and judicial interpretation. Therefore, for undocumented houses built on state-owned construction land, the court can enforce. During the implementation, opinions should be solicited from the housing registration authority on whether the house can be converted into a licensed house, and used as a reference for determining the value of an unlicensed house. When disposing of a house that has not gone through the initial registration, if it has the initial registration conditions, the court can issue a "Notice of Assistance in Execution" to the housing registration agency according to law after disposal; if it does not have the initial registration conditions temporarily, the court can issue a "Notice of Assistance in Execution" to the housing registration agency after disposal, and state that after the house buyer or the person who has completed the relevant procedures and met the initial registration conditions, the housing registration agency shall register in accordance with the Notice of Assistance in Execution; If the initial registration conditions are not met, the "status quo disposal" shall be carried out in principle, I .e. the status quo that the house does not meet the initial registration conditions shall be disclosed before disposal, the buyer or the recipient shall acquire the house according to the status quo of the rights of the house, and the subsequent property right registration shall be the responsibility of the buyer or the recipient. Reference Case 2. Shandong Higher People's Court (2021) Lu Zhi Fu No. 231 The opponent claimed that in the (2019) Lu 03 Zhifu No. 206 execution ruling, the real estate involved in the case did not go through the procedures of construction project approval, planning, land transfer, commencement permit, completion acceptance, etc., which was an illegal building. The Zibo Intermediate People's Court held that, in accordance with Article 15 of the "Provisions of the Supreme People's Court on Several Issues Concerning Online Judicial Auctions by People's Courts", the person subject to execution should provide relevant information and explanations on the quality of the auction property. If the people's court has made public announcements and special reminders in accordance with the requirements of Articles 13 and 14 of these regulations, and declared in the auction announcement that it cannot guarantee the authenticity or quality of the auction property, it shall not bear the liability for defect guarantee. With reference to the Notice of the Supreme People's Court on Forwarding the Letter of the Ministry of Housing and Urban-Rural Development on Issues Related to the Registration of Property Rights for Unlicensed Real Estate Based on Assistance in Enforcement Documents, even if there are violations of regulations, the real estate involved in the above case also has property attributes. The court can dispose of the above real estate as it is, and the consequences after disposal have nothing to do with the objector. Therefore, the seizure of the Zibo Intermediate people's Court in accordance with the law and the assessment of the auction and disposal of the property involved in the above-mentioned case by the people's Court of Zhangdian District in accordance with the relevant laws and regulations. The higher people's Court of Shandong Province held that the real estate involved in Gong Zibin's claim was an unlicensed real estate, and the court could not dispose of it without going through the relevant formalities. Referring to Article 2 of the notice of the Supreme people's Court on forwarding the Ministry of Housing and Urban-Rural Development on issues related to the registration of property rights on the basis of assistance in the implementation of documents, the real estate involved in the case still has a certain property value, in principle, the people's court conducts "status quo disposal" and discloses the situation of the property before disposal, so that the buyer or recipient can acquire the house in accordance with the status quo of the house's rights. According to the above provisions, the people's court has the right to seal up and dispose of the property involved in the case....... 2. the execution of the rented house by the person being executed. (I) enforcement of leased premises The implementation practice of auction real estate often involves the existence of housing rental issues on the property disposed of by auction, in which case it is an auction with rent or an auction without rent, often becomes the focus of the implementation of the dispute. 1. Confirm the right to dispose of the house Before auctioning and disposing of the house involved in the case, the issue of the disposal right of the enforcement court should first be confirmed, mainly whether the enforcement court is the first court of the house involved in the case, and if it is waiting for seizure, it should be auctioned after obtaining the disposal right in accordance with the provisions of the Supreme people's Court on issues related to the first seizure of the court and the priority creditor's rights enforcement court. As for whether or not to bring rent auction, it is not an obstacle for the people's court to make an auction ruling. Related provisions: Article 1 of the provisions of the Supreme People's Court on the auction and sale of property in the civil execution of the people's court: in the execution procedure, after the property of the person subject to execution is sealed up, seized or frozen, the people's court shall promptly auction, sell or take other enforcement measures. 2. Can "auction with rent" The key issues in the auction with lease are whether the lease time is before or after the seizure, and the implementation of the court's principle of full publicity (due diligence disclosure). The lease of the property does not affect the ownership of the house, it is still the property of the executed person, and the enforcement court may seize and evaluate the auction. The lease before the seizure or mortgage is a legal and valid lease and may be auctioned with the lease in accordance with the regulations. The lease after seizure or mortgage can be removed, and the lessee does not enjoy the "unbroken lease" and the right of first refusal. Is the procedure of removal of the lease after seizure necessary? The practice is that the enforcement judge generally takes measures to vacate the house only after the auction is over after identifying the lease. 3. Auction publicity In the auction announcement, notice, subject matter questionnaire in a clear position, clear font publicity lease facts and lease situation, and should take a reasonable way to prompt bidders to pay attention. With regard to the scope of the public lease, the three main factors of the public lease term, lease fee and preemptive right holder need to be expressed in words, and the disclosure of the oral agreement is clear, and the failure to provide rent payment records is also clear, and the lessee's preemptive right should also be publicized. Related provisions: The first paragraph of Article 726 of the Civil Code: If the lessor sells the leased house, it shall notify the lessee within a reasonable period of time before the sale, and the lessee shall have the right to purchase on the same terms; however, The house shall be subject to the exercise of the right of first refusal by the co-owner or the lessor sells the house to a close relative). Article 7 of the Provisions of the Supreme People's Court on the Auction and Sale of Property in Civil Execution by the People's Courts The executants shall conduct necessary investigations into the ownership, possession and use of the auction property, make a record of the investigation of the current situation of the auction property or collect other relevant information. Article 11 The people's court shall, five days before the auction, notify the parties and the known pre-emptive right to be present on the auction day in writing or in other appropriate ways that can confirm the receipt. Provisions of the Supreme People's Court on Several Issues Concerning Online Judicial Auctions by People's Courts Article 6 Where an online judicial auction is implemented, the people's court shall perform the duty of notifying the parties and the right of first refusal. Article 13 Where an online judicial auction is implemented, the people's court shall publicize the following information through the online judicial auction platform on the day of the auction announcement:... Text description, video or photo, etc., (V) the status quo of the auction property ownership, possession and use, accompanying obligations, etc.; (VI) the subject of the right of first refusal and the nature of the right; (VII) notice or inability to notify the parties, the known right of first refusal... 4. Waiting for Objection A dissenting period is reserved in the auction announcement, because factors such as the legality of the lease contract and the existence of an outsider to the execution of the subject matter may affect the progress of the execution or have a significant impact on the reference disposal price of the execution of the subject matter, and the reference price for the disposal of the property is generally determined after the dissenting period. 5. Determine the reference price for disposal and vacate the house. In</关于无证房产依据协助执行文书办理产权登记有关问题的函>
2023-03-27
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