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2022-09
The 20th National Congress of the Communist Party of China is a very important congress held at an important moment when our party has entered the new journey of building a modern socialist country in an all-round way and the second centenary goal. In order to give full play to the important role of Zhongcheng Qingtai (Jinan) Law Firm as a village legal adviser in maintaining social harmony and stability, and to fully escort the victory of the Party's 20th National Congress, members of the Zhongcheng Qingtai Public Welfare Legal Service Group Zhou Jiakui, Zhao Kaiyong, Zhao Bing, Zhang Yafei, Wu Xiaozhu and other five people went to Zhenglu Town, Shanghe County on September 28 to hold a symposium on "Zhongcheng Qingtai welcomes the 20th. Song Jialan, member of the party group of Shanghe County Justice Bureau, Wang Maohua, director of Zhenglu Town Justice Office, and representatives of villages in Jiejiaduan District participated in the discussion. In order to ensure that this symposium can achieve better results, the members of the service team carefully prepared the "Zhongcheng Qingtai Welcome to the Twenty Rule of Law Brochure" and the "the People's Republic of China Rural Revitalization Promotion Law" and other related materials in advance, and presented them to the participants on the spot. At the symposium, members of the service team preached to the village representatives the Civil Code, the the People's Republic of China Rural Revitalization Promotion Law and other laws and regulations that involve the vital interests of the villagers and are closely related to the production and life of the villagers. At the same time, they also explained the party committees and governments at all levels. Guidelines and policies on rural revitalization and the development of cooperatives led by party organizations, in order to enhance the villagers' awareness of the rule of law of "finding the law when things happen, doing things in accordance with the law, solving problems, and resolving contradictions by the law", and reducing the occurrence of conflicts and disputes from the source. Subsequently, the village representatives consulted on the relevant legal issues encountered recently, and the members of the service team gave serious answers one by one. The enthusiastic attitude and professional answers of the service team members have been highly recognized by the villagers. In order to better serve the village and help the revitalization of the village, the lawyers of Zhongcheng Qingtai Law Firm will continue to study relevant laws, regulations and policies, make full use of their professional advantages, and combine the objective reality of serving the village to serve the local government, enterprises, The village committee and villagers provide more high-quality and efficient legal services.
2022-09-28
28
2022-09
China's current patent confirmation examination model adopts the administrative single-track model, which is presented in the form of patent invalidation system and patent confirmation litigation procedure. After the patent right is authorized, any unit or individual who believes that the authorization of the patent does not comply with the provisions of the Patent Law and the Detailed Rules for the Implementation of the Patent Law may submit a request to the Invalidation Review Department of the State Intellectual Property Office (hereinafter referred to as the Invalidation Review Department) to review the patent again. The Invalidation Review Department examines this request and makes a conclusion that the patent right is invalid, the patent right is valid or partially valid. If the patentee or the applicant for invalidation is not satisfied with the invalidation procedure of the invalidation department, he may bring an administrative lawsuit to the people's court within the statutory time limit. This procedural feature is generally referred to as the single-track review model. 1 Sole review authority and review process The single-track system of China's patent confirmation examination procedure has two major characteristics, one is that the reexamination invalidation department is the only authority for patent confirmation examination, and the other is that the patent invalidation procedure is the only procedure for patent confirmation. 1, the review invalidation department is the only statutory patent confirmation examination authority. The establishment of the Invalidation Review Department aims to use the expert resources within the Patent Office to quickly eliminate disputes and reduce litigation through administrative procedures. From the point of view of China's entire patent authorization system, the review invalidation department mainly exists as the patent examination and authorization of the patent office. According to the provisions of the Patent Law, the responsibility of the Invalidation Review Department is mainly to review the decision to reject the patent authorization before the patent is granted, and to examine the request for patent invalidation after the patent is granted. In other words, the reexamination invalidation department actually has two opportunities to examine the patent authorization behavior of the patent office, one for the possible wrong patent non-authorization, and the other for the possible wrong patent authorization. However, the reexamination invalidation department is not the administrative reconsideration organ of the Patent Office, and the patent reexamination procedure and the invalidation procedure are not administrative reconsideration procedures. According to the Administrative Reconsideration Regulations of the State Intellectual Property Office, the administrative reconsideration agency related to the authorization of patent applications is the State Intellectual Property Office, and the agency responsible for legal work handles administrative reconsideration matters specifically, and is not satisfied with the decision to reject the patent application. The decision on the request for reexamination and the decision on the request for invalidation are not matters that can be reconsidered. In China, a large part of the examination of patent applications is carried out by the Patent Examination Collaboration Center. In 2001, the Patent Office of the State Intellectual Property Office established the Patent Examination Cooperation Center of the State Intellectual Property Office in Beijing. In 2011, it was renamed the "Patent Examination Cooperation Center of the Patent Office of the State Intellectual Property Office", and in 2016 it established a branch in Fujian. center. In addition, since 2011, Jiangsu, Guangdong, Henan, Hubei, Tianjin, Sichuan and other places have also established patent examination cooperation centers. The Center undertakes most of the examination of patent applications, such as the preliminary examination of various patents, the substantive examination of invention patents, and the patent evaluation report of practical patents. At the same time, it also participates in the examination of patent reexamination cases. The Audit Association Center is an institution directly under the State Intellectual Property Office and is entrusted by the State Intellectual Property Office to undertake patent-related examination work. Because it is an entrusted administrative act, the effect of the action of the Audit Association Center is borne by the State Intellectual Property Office. An administrative act of entrustment refers to an administrative act made by an administrative subject on the basis of entrusting a part of its authority or all of a certain authority to other administrative organs, organizations or individuals. Some scholars have pointed out that the concept of entrusted administrative act is not strict in expression, and the accurate statement should be the entrusted implementation of administrative act. In other words, the center of the Patent Examination Association does not have the substantive right of patent examination, but is entrusted by the State intellectual property Office to carry out the examination work for patent authorization. 2. The patent invalidation procedure is the only legal procedure for patent confirmation. The patent invalidation procedure is the only statutory examination procedure for granted patents. China does not allow the court to determine the validity of patents in the trial of patent-related civil cases, and the invalidation department has only this procedure to examine authorized patents. The uniqueness of the procedure leads to the fact that this procedure must cover all matters related to the examination of the validity of the patent. The invalidation procedure includes a patent invalidation request for any patent in any field of technology on all grounds. The term "all reasons" here does not mean that any reason that does not meet the conditions for granting a patent can be used to file a request for invalidation, but rather that the statutory reasons for invalidation need to be examined in this unique way and through a unique procedure. However, from the statistical data, the distribution of these reasons in all invalidation and litigation is not the same, and the need for complex and complete review procedures is also questionable. In contrast, the U.S. patent law sets up different examination procedures in the part of the administrative agency's examination to re-examine the authorized patent, and each applies different grounds for invalidation. For example, in the case of a two-party review procedure (IPR procedure), U.S. patent law limits the grounds for filing to those based on novelty and inventive defects. At the same time, China's invalidation procedure includes the examination of the right to confirm patents in all technical fields, and adopts a unified procedure. 2 More lenient start-up conditions Since the patent invalidation procedure is the only statutory patent confirmation examination procedure in China's patent legal system, a relatively loose starting condition is adopted. Specifically, the scope of the subject of the request can be raised, there is no express limit on the time of the raising, the commencement of the procedure is only subject to formal review and there are no other restrictions. 1. The scope of the subject of the initiation of the invalidation procedure. From the perspective of the subject who can file a patent invalidation request, the Patent Law and the Implementation Rules do not impose express restrictions. Any unit or individual who believes that the grant of the patent right does not comply with the relevant provisions of this law may request the reexamination Invalidation Department to declare the patent right invalid. However, the Review Guide lists a number of inadmissibility of invalidation, respectively, for the claimant does not have the qualification of the subject of civil litigation, the patent right is relatively invalid, the patentee's own patent is all invalid, multiple claimants jointly put forward a request for invalidation. It is worth noting that when the Review Guide was revised in 2010, the restriction on the qualification of the claimant for invalidation was added, that is, when the patent design conflicts with the legal rights obtained by others before the application date, the claimant must be able to prove that he is the prior right holder or interested party. Among them, "interested party" refers to the person who has the right to sue the court or request the administrative department to deal with the dispute of infringement of prior rights. The Supreme People's Court affirmed the validity of this restriction through a case, and in the case of "Stepels Design", the Supreme People's Court analyzed the nature of the object being regulated, the purpose of legislation and the effect of the legal order. In the judgment, the court held that the legislative purpose of the relative invalidity of the patent right is to safeguard the prior right and has nothing to do with the public interest. If anyone can claim the invalid reason for the conflict between the design patent right and the prior legal right of others, it may violate the will of the prior right holder. In addition to demonstrating the correctness of this provision itself, this approach of the Supreme People's Court also shows that while encouraging the public to challenge wrongly authorized patents in order to safeguard the public interest, more factors should be considered to set conditions for the initiation of invalidation proceedings, including the qualifications of the applicant for invalidation. The time requirement for initiating the invalidation procedure, from the time point of view, the patent law stipulates that the object of the invalidation request is the patent that has been announced and authorized, that is, the invalidation procedure is initiated as early as the date of the patent announcement authorization, and there are not too many restrictions. Although the direct effect of the patent invalidation procedure is to invalidate an authorized patent, this procedure can also be filed for a patent that has lapsed, such as the expiration of the patent or the voluntary waiver of the patentee. This is also made clear in the Review Guide. The reason why the request for invalidation should be allowed after the expiration of the patent is mainly because the various legal relationships arising from the patent during the duration of the patent may continue beyond the expiration of the patent. The unlimited time is also reflected in the fact that the examination procedure is not divided on the basis of different times, and any patent invalidation request filed at any time is heard using almost the same procedure. In fact, before the revision of the Patent Law in 2000, the administrative examination procedures for patent confirmation were divided into two types: patent revocation procedures and patent invalidation procedures. The division of procedures was bounded by six months from the date of patent authorization announcement. The two are quite different in terms of the subject of review and the reasons for invalidity/revocation. Similarly, in contrast, the U.S. patent law divides the patent re-examination procedure into post-patent authorization review (PGR) and two-party review (IPR) procedures, taking nine months after the patent is authorized. At the same time, it stipulates that if an infringement lawsuit based on the disputed patent is in progress, the party accused of infringement shall not initiate two-party review proceedings one year after the date of delivery of the copy of the complaint. 2. Formal review of the acceptance and initiation of the invalidation procedure As a result of the more lenient conditions for initiation, the Patent Reexamination Board only conducts a formal examination of the patent invalidation request before initiating the examination procedure. The contents of the formal examination stipulated in the Review Guide are whether the object of the request for invalidation is a patent authorized by the announcement, the qualification of the applicant for invalidation, and the scope, reasons and evidence of the request for invalidation. At this stage, the Patent Reexamination Board's examination of the reasons for the request and the evidence is limited to whether the requester has given the reasons for invalidation and stating what evidence is used to support what reasons. As long as the grounds and evidence of invalidity exist, are not hindered by the principle of non-justification and fall within the scope of article 66, paragraph 2, of the Regulations, the request is admissible. As for the examination of the reasons themselves and the probative force of the evidence, all are referred to the formal examination process. In contrast, in the United States patent law, after the patent grant review procedure is accepted, the patent director shall conduct a preliminary examination of the content of the request. Only when it is reasonably foreseeable that the request of the requester will make at least one claim be successfully declared invalid, the examination procedure will be formally initiated. 3 Reasons that can be used to request patent invalidation Although the purpose and process of the invalidation procedure is to re-evaluate whether the patent technology in dispute meets the conditions of patent authorization, not all the reasons that may cause the failure of authorization at the patent application stage can be the reasons for the patent invalidation request. The grounds for invalidation are limited to the grounds provided for in paragraph 2 of Article 65 of the Regulations. These reasons include: invention-creation or non-patentable object that is not protected by the patent law, failure to conduct confidential examination according to law when applying for a patent abroad, defects in the substantive conditions of patent authorization, defects in the writing of specifications or claims and defects in pictures, beyond the scope of application document modification, defects in the legality of invention-creation, lack of necessary technical characteristics of independent claims, and beyond the scope of division application. Among the above reasons, most of them are related to the scope of protection of patent rights. Through the re-examination of these reasons, the scope of protection of contested inventions and creations can be re-determined and redefined. However, there are also contents that have nothing to do with the scope of patent protection, such as failing to conduct a confidential examination in accordance with the law when examining a patent abroad, which will also invalidate the authorized patent right. It is worth mentioning that the right to apply and the wrong ownership of the patent do not belong to the reasons for the declaration of patent invalidation in China. The patent invalidation procedure does not involve a dispute over patent ownership, nor does the Department of Invalidation Review have jurisdiction over this matter. It is logical that errors in patent ownership should be made by transferring the patent to the correct right holder, rather than by invalidating the patent. The authorization error at this time is not that the patented technology does not meet the authorization conditions, so the patent should still be valid. But in contrast to the Japanese regulations. The Japanese Patent Law also considers patent "fraud" or patent joint application requirements as grounds for invalidation. The reason is that "since the patent law grants a patent right to an invention on the basis of an invention and through an application, there is no reason to retain the patent when the patent right is falsely recognized, that is, when the inventor does not apply for registration." Similarly, the issue of singleness defects is not a cause of invalidity, as the lack of singleness of a patent is generally resolved through division of applications at the application stage. However, after the patent is granted, the number of patent rights does not have much influence on the actual scope of protection of the invention, but only involves the issue of the annual fee of the patent.
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2022-09
Viewpoint | Liability for Guarantee in Hybrid Guarantee
The dispute 1. the internal recovery right in the mixed guarantee. 1. Affirmative argument (1) The right of recovery of the guarantor in article 700 of the Civil Code: the natural derivation of the equality of property security and human security. Affirmation Scholars believe that: 1. According to the Civil Code guarantee interpretation, the people's court may use the provisions of the Civil Code on guarantee contracts when hearing cases of security disputes over goods provided by third parties. According to article 700 of the Civil Code, after the guarantor assumes the responsibility of guarantee, there is both a right of recovery against the debtor (which is a nascent right) and a right of subrogation against the creditor, which means "the right of the creditor to the debtor". Then this subrogation right can be seen as a statutory concession of claims. Thus, a non-contractual debt relationship arises between the guarantor and the debtor. In accordance with article 468 of the Civil Code, the provisions on claims and debts arising on the basis of contracts are applicable, as well as the provisions of article 547 of the Civil Code on the transfer of claims and the provisions on the change of rights. A security interest can be regarded as a subordinate right, on the basis of which the guarantor enjoys a security interest and can recover from other guarantors. (2) the principle of fairness said The principle of fairness holds that, as a creditor, it has the right to choose the guarantor or guarantor to be liable in the event that the debtor is unable to pay off the debt, but the choice of whom depends on the creditor's own decision. If the mixed co-guarantors are not allowed to recover from each other, then some of the guarantors will bear full responsibility, while others do not need to bear any responsibility, which is obviously not in line with the requirements of fairness and justice. (3) Joint debt said. Some scholars draw on German law and try to establish the right of recovery through joint and several debt certificates. That is, the hybrid guarantee is consistent with the general provisions on joint and several obligations set out in the German Civil Code, and the right of mutual recourse is considered to be between the guarantors through the determination of the internal relations of the joint and several debtors in the German Civil Code. Some scholars also believe that since the various guarantors guarantee the same debt, they have a common purpose, thus presuming that they are related to each other, combined with the internal relationship between the debtor, the existence of the right of recovery. In China's judicial practice, there are also courts based on the original guarantee interpretation of the provisions of the joint and several debt theory to make decisions. (4) The claim of subrogation. Scholars of the subrogation claim argue that the guarantor who assumes responsibility can be seen as paying the debtor's debt. Since the debt is extinguished by a third party on behalf of the liquidation, the original creditor's claim has been legally transferred, at which point the new creditor becomes the guarantor who has fulfilled the security obligation. At this point, the guarantor who has assumed the liability for the guarantee may require the other guarantor to pay off (only to the extent of its own payment). 2. Rebuttal of Negative Theory (1) The "equality of physical security and human security" does not justify mutual internal recourse. First of all, the point of view of "the equality of property security and human security" is to consider the creditor's right of choice, that is to say, the creditor can choose to be liable by the guarantor, or by the property guarantor. However, the right of recovery between the guarantor and the guarantor is the internal relationship between the two, and it is illogical to conclude that there is an internal right of recovery between the guarantor through the equality of the property and the person. Moreover, the principle of equality always runs through the field of private law, and if the relationship between the two is equal, it can be concluded that there is an internal right of recourse between the guarantors, which is contrary to the general law of the development of private law and does not conform to the connotation and original intention of the principle of equality. (2) Specific performance based on the principle of fairness The understanding of the principle of fairness should be comprehensive and should not be confined to 1.1, otherwise it is easy to lead to one-sided understanding or misinterpretation. Based on the principle of fairness, the negative view is that, on the one hand, both the guarantor and the guarantor, when creating security for others, should understand the consequences and risks of their actions, when the guarantor assumes responsibility, can only choose to recover from the debtor, and there is no other remedy. If it is not possible to recover from the debtor, it is at its own risk; on the other hand, if the guarantor wants to reduce or avoid the risk that the debtor will not be able to repay, it should be specifically agreed by written contract or other means before the security is created. (3) Inadequacies in the application of the theory of joint and several obligations Joint and several debts are obviously aggravating the obligations of a party and should be agreed upon by the parties or provided for by law. In a mixed guarantee, there is no law that provides for the application of the joint and several debt theory to the joint guarantor. Secondly, according to the principle of autonomy, the parties did not agree on joint and several debts, and the joint and several debts began to talk about. It is worth noting that, within the affirmative, there is also a negative view of the theory of joint and several obligations and that the guarantor and the guarantor in rem are each separately responsible in terms of external relations, the former being the limited liability of rem and the latter being the unlimited liability of man, and that there should be no real joint and several relations between the two in different fields. Thus, the relationship between the guarantors does not conform to the structure of the joint and several obligations themselves. (4) Reflections on the theory of subrogation claims Neither in terms of the debt to which it is directed nor in terms of the meaning of the guarantor's liquidation, it cannot be concluded that the guarantor who liquidated the debt is liable to the creditor on behalf of the other guarantor. The reason is that the guarantor's act of paying off the debt is actually taking responsibility for the debtor, that is to say, the guarantor who has assumed the liability for security has the legal status of a creditor against the debtor. No other guarantors of the debtor are involved. In other words, this only involves the relationship between the guarantor who has assumed the security liability and the debtor, and there is no relationship between the guarantors. 2. from the legal basic value argument negative theory (I) from the principle of fairness Although both affirmative and negative are based on the principle of fairness, but the starting point is completely different, the starting point of the negative scholars is the principle of fairness and meaning autonomy, since the parties did not pre-set the intention to allow recovery, then it is fair to think that there is no right of recovery between the mixed guarantor. It is certainly argued from the point of view of coordination among the rules that the rule that creditors can choose the guarantor to assume liability at will is not in harmony with the rule that the mixed co-guarantor has no right of recovery from each other. The relationship between the creditor and the guarantor and the relationship within the guarantor have different causes, different value pursuits, different existence mechanisms, and different legal interests behind them. Therefore, there is no so-called incoordination. The judgment of the principle of fairness cannot be concluded simply through a single legal relationship. There can be no limitations. We should proceed from the overall situation and look at the principle of fairness from the perspective of transcending individual legal relations. (II) from the principle of efficiency When there is a legal right of recourse between the guarantors, the legal relationship is complex and the transaction cost is extremely high. The number of parties and do not know each other, access to the basic information of the parties is extremely difficult. Such a cumbersome situation makes it impossible for the guarantor to properly assess the risk of the transaction, and also makes the guarantor and the secured property in a "precarious" situation. As a result, people may no longer provide security because they are unwilling to take great risks, which is not conducive to the development of China's security system and the realization of claims. Therefore, it is more advantageous to think that there is no right of recourse between the guarantors. (III) from the perspective of autonomy The logic in the affirmative and negative statements is that the parties have an expectation of security risk and are willing to take their own risks based on the principle of autonomy. At this time, the law should give sufficient respect to the expected effect of the parties' guarantee. The negative view is that the risk expected by the guarantor is that the guarantor can only recover from the debtor after assuming the guarantee liability, and if the debtor cannot pay off, the guarantor can only bear the risk. After rational analysis, the guarantor anticipates this risk and is still willing to take the risk to provide security for the debtor. At this time, there is no agreement on joint guarantee or mutual recovery. Then the risk should be borne by the guarantor itself. Professor Cui Jianyuan of Tsinghua University pointed out that the guarantor did not mean to agree on sharing and recovery before the guarantee was made, and there was no intention to contact each other. Then when the guarantor assumes responsibility and cannot recover from the debtor, it can only "taste the bitter fruit" and cannot recover from other guarantors, otherwise it is contrary to the spirit of private law of autonomy. It must be said that the view is the opposite: if the guarantor was clearly aware of the existence of other guarantors at the time of the creation of the guarantee, then his thoughts at the time of the creation of the guarantee may be due to the existence of other guarantors, and then I cannot be held fully responsible. It is therefore certain that recovery between guarantors is not a violation of the principle of autonomy of will, but rather an implementation of autonomy of will. The author thinks that the affirmation scholars only pay attention to the "meaning" in the meaning autonomy and ignore the "autonomy". According to the principle of autonomy, it is the party's own choice to make a certain choice out of some consideration, which requires the party's own thinking and judgment. Because of its universal applicability, the law cannot make an appropriate choice for each party in each case. When a guarantee is agreed upon, if there is no agreement between the guarantors, it means that no one between the guarantors has agreed to internal recovery. If the parties intend to have an internal right of recourse in the agreed security, they may agree on the legal relationship and the risk on their own. The universal applicability of the law determines that it should fully respect the parties in real life. It is not possible to create a recovery relationship between the parties, otherwise it is a violation of the autonomy of private law. 3. Interpretation of Article 13 of the Civil Code Guarantee Interpretation (I) respect for autonomy After the promulgation of the guarantee interpretation of the Civil Code, it has become the only basis for solving the problem of internal recovery of mixed guarantee. The provision basically affirms the position of non-recourse within the hybrid security and respects the autonomy of the parties. If there is no agreement between the parties, there is no right of recovery; if the parties have only agreed on mutual recovery but have not agreed on the manner of recovery, the specific manner is supplemented by the principle of autonomy. In general: if the parties have clearly expressed mutual recovery, the court should give respect. As for the manner of recovery not agreed upon by the parties, the proportionality scheme was adopted. (II)'s compromise on affirmation The interpretation of the guarantee system provides for other circumstances in which compensation can be recovered. If "each guarantor signs, seals or prints on the same contract", in this case, the guarantor may recover from the other guarantor after assuming the guarantee liability. This is a compromise that the law certainly says about the right of recovery. If the guarantors sign the same contract and agree that they will provide the guarantee, then the guarantors are no longer in a back-to-back relationship, I .e., they know each other, and it is determined that there is an internal right of recovery, but this idea is worth considering. From a commercial point of view, there is a certain reason for "the same contract can be recovered": whether it is to avoid risks or pay attention to obligations, compared with civil subjects, the ability of commercial subjects is higher than that of civil subjects, and commercial activities pay more attention to efficiency. It is certain that the internal right of recovery is reasonable when the guarantee contract is signed between commercial subjects, but if it is analogized to the civil subjects, the civil subjects will be overburdened. Even if the paragraph is arbitrarily considered to adopt commercial law thinking, the logic between the two is not clear because the Civil Code adopts civil law thinking. China adopts the legislative model of civil and commercial integration, if the law and judicial interpretation does not indicate the use of civil law or commercial law thinking, then only the use of civil law thinking will not harm the interests of other subjects. In general, the Civil Code basically establishes the provision of non-recourse between guarantors, but the compromise in paragraph 2 makes the negation not fully implemented. In summary, the internal recovery right of the hybrid guarantee should be denied. The reason is that respect for the principle of autonomy of the will should not interfere with legal relations between private persons unless it violates the fundamental spirit of the law. Moreover, the negation can better guarantee the realization of creditor's rights, promote the financing, give the parties flexible space to own arrangements, and realize the fundamental purpose of the guarantee system. The mixed common guarantee system is the most important in the guarantee system, and the correct understanding and application of the mixed common guarantee system will make the guarantee system play a greater role in practice. Therefore, in the mixed co-guarantee system, it is considered that there is no right of mutual recovery between the mixed co-guarantors, which protects the interests of creditors and demonstrates the spirit of autonomy.
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2022-09
At present, in the trial of patent infringement cases, Chinese courts usually use the rules of "comprehensive coverage principle", "literal infringement principle" and "equivalence principle" to determine whether the alleged infringement constitutes infringement of the target patent. When the infringement judgment rules are applied to the trial of patent infringement cases, the court will first interpret the claims of the target patent literally, then compare the technical characteristics of the accused infringing object and the claims of the target patent one by one, and finally judge the consistency of the "mode/principle function results" of the two and whether there is "creative labor. However, the application of the above-mentioned rules to determine patent infringement has its inherent defects, in the interpretation of the meaning of the claim and the definition of the scope of patent protection, sometimes too carefully limited to the literal expression of the claim, often can not give the patentee fair and effective legal protection, that is, relative to the patentee or inventor's contribution to the existing technology, to give its patent protection scope is too small; sometimes, due to the change of the meaning of a certain technical feature caused by the progress of technology, the abuse of the functional limited technical feature in the target patent claim, etc., it is easy to ignore the examination of the creative difference in the mode/principle, thus providing the patentee with excessive legal protection, that is, the scope of patent protection is too large compared with the patentee or the contribution made to the existing technology. In other words, if the court applies the above-mentioned patent infringement determination principle in strict accordance with the literal meaning of the patent claim, there will always be a series of problems such as the mismatch between the scope of patent protection and the contribution of the patent to the existing technology. The author believes that in order to correct the deviation brought by the above-mentioned patent infringement judgment rules and balance the interests of the public and the patentee, the mechanism of restricting the excessive application of the principle of equivalence can be introduced. In the process of determining whether it constitutes patent infringement, in some specific cases, although the technical characteristics of the accused infringing object are the same as the corresponding technical characteristics in the patent claim, compared with the target patent, the working methods or implementation principles of the two are essentially different. Then even if the final function and effect of the two constitute the same substance, at this time should also be determined not to constitute patent infringement, that is, the principle of inverse equivalence. The establishment of the principle of inverse equivalence precisely solves the above-mentioned problems. On the one hand, it emphasizes the protection of prior technology patent rights, maintains the legitimate interests of prior technology research and development personnel, and encourages the public to innovate; on the other hand, by limiting the prior The scope of over-protection of patents, giving certain patent protection to post-technology research and development personnel is conducive to redevelopment and re-creation, to a certain extent, it has promoted the development and progress of science and technology, especially high and new technology. The United States is the first country in the world to establish the principle of inverse equivalence and the provisions of the principle are more perfect, although the principle was established in the United States at the beginning of its application encountered many difficulties, but with the continuous improvement of the rules, the continuous progress of technology, the application of the principle has great potential. Japanese courts in the trial of patent infringement cases, in the face of method or function limited product claims, the court will also apply similar to the principle of reverse equivalence to determine whether it constitutes equivalent infringement. In Taiwan, the principle of reverse equivalence is also an effective principle for local courts to determine patent infringement. By observing the application of the principle of inverse equivalence in the above-mentioned countries, the premise is that the accused infringing property has fallen within the literal scope of the claim protection of the target patent and has constituted a literal infringement. According to this, the elements that do not constitute patent infringement are all substantial differences between the accused infringing property and the completion method/principle of the target patent. Even though China's existing patent laws and regulations on the interpretation of patent claims is more strict, limiting the improper expansion of the scope of patent claims, but in practice, the patent claims and patent specifications are still out of touch. It should be noted that the role of the principle of reverse equivalence in the determination of patent infringement is far more than limiting the improper scope of the claims. Whether it is from the objective conditions or from the perspective of institutional needs, it is necessary to use this principle to amend and improve the existing patent infringement determination system, so that the interests of all parties can be balanced, which is in line with the ultimate value pursuit of the patent legal system. Zhongcheng Qingtai Law Firm has a large number of high-level expert teams in the field of intellectual property legal services such as patents, trademarks, copyrights, etc., providing satisfactory protection solutions and performance for the intellectual creativity and technological innovation of a wide range of client groups. Previously, many lawyers from Zhongcheng Qingtai have been selected into the talent expert database of the Provincial Protection Center. In the next step, Zhongcheng Qingtai lawyers will strengthen the publicity of intellectual property rights for government agencies, institutions, enterprises, and universities, and comprehensively promote the creation, use, protection, management and service of intellectual property rights. Improve the level, and help the high-quality development of intellectual property rights through their own professional and dedicated services.
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2022-09
On September 24, 2022, under the auspices of the People's Court of Heze Economic Development Zone, the first creditors' meeting of the bankruptcy reorganization case of Shandong Quanrun Paper Co., Ltd. was successfully held. The meeting was held in the form of live webcast through the national enterprise bankruptcy reorganization case information network. This meeting adopted a combination of online and offline voting methods, and the voting items were passed with a high vote rate, and the agenda of the meeting was successfully completed. Shandong Quanrun Paper Co., Ltd. was unable to pay off its due debts and obviously lacked solvency. The People's Court of Heze Economic Development Zone accepted the reorganization application of Shandong Quanrun Paper Co., Ltd. on June 28, 2022, and appointed Shandong Quanrun Paper Co., Ltd. The bankruptcy reorganization liquidation team of the company served as the manager of Shandong Quanrun Paper Co., Ltd., and Zhongcheng Qingtai (Jinan) Law Firm was a member of the liquidation team. In order to prevent and control the new crown epidemic and improve the efficiency of the meeting, the People's Court of Heze Economic Development Zone decided to hold the first creditors' meeting by means of an online meeting upon the application of the administrator. At the meeting, the manager made the "Phased Work Report on the Execution of Duties", "Report on the Request to the Creditors' Meeting to Verify Creditor's Rights", "Report on the Property Management Plan of Shandong Quanrun Paper Co., Ltd.", "Manager's Remuneration Plan" Wait. After the vote of all the creditors with voting rights, the voting motion was passed with a high vote of 96.59 per cent and 82.21 per cent, the agenda was successfully completed, and the bankruptcy reorganization work was carried out in an orderly manner. After accepting the appointment as a member of the liquidation team in this case, Zhongcheng Qingtai (Jinan) Law Firm has always adhered to the working principle of "legal, standardized, efficient, and fair", and completed various tasks diligently and dutifully: received and reviewed all declared claims in accordance with the law; Carefully and comprehensively investigated all the debtor's property, carried out proper management, and promoted other tasks in accordance with the plan and requirements. The working methods and attitudes of Zhongcheng Qingtai lawyers with diligence, loyalty, and active communication have won unanimous praise from the people's courts and creditors. Zhongcheng Qingtai (Jinan) Law Firm Introduction to the Insolvency Legal Affairs Team As a provincial-level bankruptcy administrator, Zhongcheng Qingtai Jinan Institute has accumulated rich theoretical and practical experience in bankruptcy business in recent years, and the bankruptcy cases it undertakes have been highly appraised and recognized by relevant courts, competent authorities, creditors and so on. it has made positive efforts for Shandong Province to implement the new concept of development, promote the transformation of new and old kinetic energy in Shandong Province, and promote high-quality economic development. Zhongcheng Qingtai Jinan Institute will continue to give full play to its service advantages of specialization, teamwork and standardization, actively undertake important and difficult bankruptcy cases in Shandong Province, focus on the center, serve the overall situation, and have the courage to take responsibility, so as to contribute to the construction of a high-quality modern economic system. Representative Performance: The case of merger and reorganization of 27 companies including Qixing Group Co., Ltd. Yangxin Eurasia Group Co., Ltd. and other 23 companies merger and reorganization case. Shandong Shengda Coating Materials Co., Ltd. and other five companies merger and reorganization case. Shandong University of Science and Technology Dingxin Electronic Technology Co., Ltd. and other four companies merged and reorganized. Twelve companies including Baoshida International Holding Group Co., Ltd. merged and reorganized. Juye County Jinxu Real Estate Development Co., Ltd. bankruptcy reorganization case. Shandong Zhonghong Real Estate Limited Bankruptcy Liquidation Case Case of Bankruptcy Liquidation of Jinan Casting and Forging Machinery Research Institute Co., Ltd. Shandong Bogda Real Estate Co., Ltd. bankruptcy liquidation case. Jinan Shanghe County Weaving Factory Bankruptcy Liquidation Case Jinan Sunshine Real Estate Co., Ltd. bankruptcy liquidation case. Jinan Sanchuan Eco-tourism Development Co., Ltd. Bankruptcy Liquidation Case Shandong Huicheng Chemical Co., Ltd. Bankruptcy Liquidation Case Bankruptcy Liquidation Case of Shandong Timber Group Corporation Bankruptcy and Liquidation Case of Shandong Production Material Corporation Jinan Fudi Wood Co., Ltd. Bankruptcy Settlement
2022-09-27
27
2022-09
1. what are mining mergers and acquisitions? Mining M & A refers to the merger and acquisition of mining projects under the premise that the acquirer or at least one of the target companies is a mining enterprise. Why should legal due diligence be conducted in 2. mining mergers and acquisitions? In the process of mergers and acquisitions, the acquirer and the acquired party's grasp of the target company's information is asymmetric. From the perspective of the acquirer, in order to reduce the legal risks caused by information asymmetry, conduct legal due diligence on the target company, understand all the information of the target company as much as possible, fully understand the basic situation of the target company, find possible legal risks, and propose solutions to related risks; as for mineral mergers and acquisitions, the personality problem of legal due diligence lies in the need to confirm the legality and risk controllability of the circulation of mining rights, the circulation process of mineral enterprises is often very complicated and there are many unknown inside stories, including but not limited to holding on behalf of others, doubtful consideration, third-party interests such as collectives, non-payment of resource prices, administrative penalties brought about by cross-border and barbaric mining, and so on. These will bring unpredictable obstacles to the realization of value through mineral rights. For the acquired party, by conducting due diligence on the acquirer, it is verified whether the assignee of the mining right meets the requirements of the applicant for the prospecting right or the applicant for the mining right as stipulated in the Measures for the Administration of the Registration of Mineral Resources Exploration Blocks or the Measures for the Administration of the Registration of Mineral Resources Mining. At the same time, we can also know as much as possible about the buying strength and sincerity of the acquirer, and estimate the probability of a successful transaction. Main Contents of Legal Due Diligence in 3. Mining Mergers and Acquisitions 1, the legality of the acquisition and disposal of mining rights. (1) Method of acquisition. The acquisition method includes the transfer method and the transfer method, of which the transfer method is mainly bidding, auction, listing, application in advance, agreement, etc. In the process of due diligence, the mining rights obtained in different ways need to pay attention to different problems. If the mining right is acquired by auction or listing, it is necessary to pay attention to whether the transaction price is directly linked to the transfer period of the mining right. If the transfer method is adopted, it is necessary to pay attention to whether the mining certificate meets the transfer conditions stipulated in Articles 3, 5 and 6 of the "Administrative Measures for the Transfer of Prospecting Rights and Mining Rights. It is important to note whether the mining rights transfer contract has been approved by the mining rights approval and registration authority at or above the provincial level (including the provincial level). (2) Evaluate the reasonableness of the parameters. Specifically, it includes the validity period of the mining right and the exploration stage specified in the exploration license. The number and continuation stage of the exploration right, and whether there is the possibility that the area of the exploration block will be reduced when the next application for renewal is made; Whether the mining right is included in the integration plan and scope by the government, and whether the mining right may not be renewed after the transaction is completed; Whether the mining right passed the annual inspection of the previous year. (3) Whether the owner of the mineral right has paid the price of the prospecting right or the mining right. (4) Whether there are rights restrictions on the mining rights of the target enterprise. Whether the mining right holder leases or mortgages the mining right to the outside world, and whether he cooperates with a third party in prospecting or mining. (5) Whether the actual mined minerals are consistent with the registered minerals. China has a registration system for mining species, and if the main mineral species changes, it is necessary to register the change, otherwise mining beyond the provisions of the license (except for symbiotic and associated minerals) may constitute the crime of illegal mining. 2, the authenticity of mineral resources reserves. (1) Go to the land department to inquire about the reserve record certificate. (2) Entrust the Reserve Assessment Center or professional consulting agency to conduct review and verification, and make comprehensive judgments on the geological structure and causes of mineralization. Generally speaking, legal due diligence only needs to check the reserve record certificate of the land department, but if the project is significant and the mining area resources directly affect the production and operation of the acquirer, it is the key factor to decide whether the acquirer will carry out the merger or not, so it is necessary to review and verify the mining area resources and analyze the feasibility and investment value of the project. 3. Legal compliance of land use According to the "Land Management Law", "Mineral Resources Law", "Mineral Resources Law Implementation Rules" and other laws and regulations, the land use right of the ground shall be obtained in accordance with the law before obtaining the prospecting right or mining right for exploration or mining. According to the provisions of the the People's Republic of China National Standard Land Use Status Classification (GB/T 21010-2007), mining land belongs to the second-class land, which belongs to the first-class industrial and mining storage land together with industrial land and storage land, specifically refers to mining, quarrying, sand (sand) field, salt field, brick kiln and other ground production land and tailings stacking land. Therefore, the definition of mining land in China mainly includes ground production land and tailings stacking land. Mining land belongs to the category of construction land. In the process of legal due diligence, it is necessary to review whether the target company conducts review and approval in accordance with the procedures for obtaining construction land. If the target company does not use the land in accordance with the regulations, there is a deadline for demolition of buildings and restoration of the land The risk of being fined will affect the normal production and operation of the enterprise. 4. Safety production situation in mining area (1) Check the safety production license of the target company, including but not limited to the authenticity and validity of the safety production license, whether it has been revoked or detained. (2) Whether the target enterprise is ordered to make safety rectification within a time limit according to law, and if so, whether the rectification is completed. (3) Whether the person in charge of minerals of the target company has obtained the certificate of safety production qualification, and whether the staff of special types of work hold the certificate. 5. Ecological and environmental protection issues Review whether the target company's "Environmental Impact Assessment Report (Form)" has passed the approval of the competent department of ecological environment, and whether the relevant personnel of the target company have been subject to administrative sanctions by the competent department of ecological environment. Check whether the target company has received administrative punishment for environmental protection substandard in the process of production and operation and whether it has made corrections. Go to the natural resources, forestry and other relevant departments to check whether the scope of mining rights is in the areas where mining is prohibited, such as nature reserves, scenic spots, national parks, ecological red lines, and so on. If all the mining rights are in the protected areas, there will be legal risks that they will not be able to be renewed. 6. Understand the industrial policy of the mineral location The Circular of the Ministry of Land and Resources on improving the Administration of examination, approval and Registration of Mineral Resources Mining stipulates that if the mining right is closed and announced by the people's government at or above the county level due to ecological protection, production safety, public interest, industrial policies, etc., the competent department of land and resources at the same level shall notify the original registration authority by letter. According to the regulation, the government has the right to decide to close the mining right if it is not in line with the industrial policy. Therefore, during the legal due diligence, we should have an understanding of the industrial policy of the mineral location to avoid legal risks arising from non-compliance with the industrial policy. 4. Summary In mining mergers and acquisitions, in addition to the above-mentioned individual issues, lawyers should also review the common issues of the target company during the legal due diligence process, including but not limited to the establishment and survival, subject qualification, shareholder qualification and equity structure, corporate governance structure, whether the merger and acquisition has been approved and authorized, major contracts, external claims and debts, litigation and administrative penalties, labor and employment, etc.
2022-09-27
26
2022-09
The bank account of the executed person is an important property clue, the currency in the account is a kind of thing, according to the principle of right appearance, usually possession is all. The court generally follows the principle of formal examination when examining the property of the person subject to execution in the enforcement procedure, and the bank deposit in the name of the person subject to execution is often considered to be all his property, and the court may take enforcement measures against the bank account in accordance with the law. Question: Outsider A mistakenly remitted all his 2 million yuan money to the bank account of executed person B, but the account was sealed up and frozen by the court before the money was remitted, and B could not return it to Party A. Now, in order to safeguard its rights, can Party A directly file a lawsuit against the execution of the outsider and the execution of the outsider? Can the ownership of the mis-remittance item be directly confirmed and the execution be blocked after an objection is raised? What should be the most appropriate way of judicial relief? The aforementioned problems are common in judicial practice, but there has been controversy, this paper combined with the relevant legal provisions, cases for a brief analysis. 1. Controversial Views in Current Judicial Practice 1, outsider A may file an enforcement objection to the exclusion of enforcement. First of all, all the money of the outsider A enters the account of the executed person B only because of the wrong remittance. Because the legal act without true intention does not have the legal effect of establishing, changing and terminating civil rights and obligations, the remittance behavior of the outsider A does not lead to the transfer of ownership of the remitted items. At this time, the state of the money is the separation of ownership and possession, outsider A has a civil interest in the amount sufficient to exclude enforcement. Secondly, the lawsuit of the outsider's execution objection is aimed at protecting the legal entity rights of the outsider. If it is found that the rights and interests of the entity involved in the case belong to the outsider A, the execution of the money involved in the case should be stopped directly to protect the legitimate rights and interests of the outsider A. Reference case: Supreme People's Court case [Supreme People's Court (2017) Supreme Fa Min Shen No. 322], which was published in the 2nd issue of the Supreme People's Court Bulletin in 2018. 2, the money belongs to the person subject to execution B, the court can enforce the money, outsider A should file a separate lawsuit for unjust enrichment. First of all, possession is the general principle of judging the nature of the ownership of funds, in the absence of evidence to the contrary to prove that the real right of the funds and the account owner is not the same, the general principle should be applied, the case of outsider A transfer of the money to the account of the executed person B, the ownership has been transferred to the executed person, no longer belong to the outsider. Secondly, even if the fact of erroneous remittance claimed by outsider A is established, the legal relationship formed by outsider A and B is a debt of unjust enrichment, and the right to claim unjust enrichment is an ordinary claim and does not belong to a civil right that is sufficient to prevent enforcement. Since the account owner B received the money without good reason, A may sue separately in a separate case for unjust enrichment. However, the claim is an ordinary claim and has no priority over the rights of other creditors of the possessor, so it cannot be prevented from executing the procedure separately. Reference case: Supreme Court case ["Civil Trial Guidance and Reference" Si Wei Supreme Court People's Court (201803/75), (2018) Supreme Fa Min Shen No. 1742]]. 2. relevant legal provisions and judicial adjudication tendency 1. On November 29, 2019, the Supreme People's Court issued the Interpretation (I) on the Application of Law in the Trial of Cases of Objection to Execution (draft for public comment) on its official website. Article 15 of the Interpretation: "The people's court enforces enforcement of funds in the account of the person subject to execution, and the outsider in the case claims that the funds in the account are remitted by mistake and that they are the actual owners of the funds, if the people's court does not support a lawsuit against the execution of the objection, the people's court may not support it, and the person outside the case may claim another right in accordance with the law on the basis of the facts such as the erroneous remittance." The above interpretation has not yet entered into force, although it is only a draft for comments, but it can also be seen that the Supreme People's Court's attitude towards the wrong remitter when filing an enforcement objection lawsuit will also have an impact on the court's tendency to judge such cases, with the aim of improving the efficiency of enforcement and guiding the parties to file an unjust enrichment lawsuit. 2. On July 28, 2020, the Shandong Higher People's Court issued a local judicial document, according to Article 11 of the ''Answers to Several Questions of the Civil Division of the Shandong Higher People's Court on the Trial of Cases of Objection to Enforcement of Laws'': For the ownership of the rights of monetary funds, the cash holder and bank account registrant shall generally be presumed to be the right holder based on the apparent state of the possession of the funds. If the outsider claims the right to the wrong remittance of the funds in the account of the person being executed, and requests the exclusion of execution, it is generally not supported. If the outsider has evidence that the monetary funds have been specified by means of special accounts, special accounts, seals, etc., which is sufficient to show that the property rights and interests are in a state of separation of ownership and possession, the actual right holder of the monetary funds shall be determined on the basis of the true attribution of rights." According to the above provisions, the trial practice in Shandong region can be analyzed and obtained, and conditional support is given to the lawsuit of execution objection raised by outsiders. The author further searched the judgment documents of such cases in Shandong region after November 29, 2019, and found that only a few cases were supported during this period, and most of the cases were rejected. At present, the judgment caliber has not been unified. 3. On January 24, 2022, the WeChat public number "Supreme People's Court People's Court" published an article: "Outsiders cannot exclude enforcement on the grounds that the funds in the account of the executed person are misremitted by him." The general content is as follows: (1) As a special movable property and an unspecified object, currency is its basic attribute. When the bank executes the remitter's intention, the effect of fund delivery occurs. The civil rights arising from the legal transfer of currency are enjoyed by the account owner. The funds remitted to the account of the person subject to execution are the liability property of the person subject to execution and belong to the property available for execution. (2) Based on the basic principle that currency possession is all, even if the wrong remittance is a fact, for the remitter, the legal consequence of the wrong remittance is that it has the right to claim unjust enrichment for the owner of the remittance account, which belongs to the category of creditor's rights, not the real right. The right to claim unjust enrichment has no priority over other ordinary monetary claims and cannot exclude enforcement. (3) Although an outsider cannot exclude enforcement on the basis that the funds in the account of the executed person are misremitted by him, if the outsider does have evidence to prove that he or she is misremitted by mistake, he or she may, in accordance with the law, separately claim the return of unjust enrichment to the executed person. According to the above-mentioned relevant provisions and views, it can be seen that the attitude of the Supreme People's Court in handling such cases has been revised from the tendency to support the execution objection of outsiders to not support it. The author believes that although it can play a role in improving the efficiency of execution and guiding the parties to file unjust enrichment claims, to a certain extent, unjust enrichment claims have little effect on the wrong remitters. Even if the unjust enrichment claim is successful and enters the enforcement phase, it is still an ordinary claim in nature, without any priority effect, and there is great uncertainty as to whether it can be enforced in place. 3. choose a more comprehensive way of relief The author believes that in the event of an outsider's erroneous remittance, an appropriate litigation plan should be formulated in the light of the specific facts of the case: 1, give priority to the outsider to execute the objection to the lawsuit. Because the debt of unjust enrichment has the nature of ordinary creditor's rights, it can not achieve the purpose of the outsider to confirm the ownership of the money and exclude the purpose of enforcement, so the priority is to choose the outsider to execute the objection. At the same time, attention should be paid to whether the following factual factors of the case exist: (1) Whether the outsider can confirm the existence of the fact of the erroneous remittance. Confirm the causes of remittance, such as the existence of other contractual debts; Confirm the causes of erroneous remittance, such as the high similarity between the account number and account name of the intended payment account and the actual collection account; Timely relief after erroneous remittance, such as immediately informing the other party or filing a civil lawsuit, etc.; Whether there is a corresponding contract or other cooperative relationship between the two parties; The degree to which the remittance amount is consistent with the cooperative relationship between the two parties, etc. (2) Whether there are other economic transactions between the outsider and the payee. (3) Whether there is agreement between the outsider and the payee on the remittance (4) Status of the receiving account at the time of remittance (5) During the period when the account was closed and the person in the case brought by the outsider, whether other funds entered the account and whether it was mixed with other funds. After comprehensive consideration of the above factors, it can be decided according to the specific facts of the case whether to give priority to the execution of the objection of the outsider, so as to obtain the support of the people's court, so as to exclude the enforcement. 2. Supplementary filing of unjust enrichment claims There is a legal risk of being rejected by the court because the cases filed by outsiders of the execution objection and the execution objection are complicated and the trial period is long. If the execution objection and the execution objection are rejected, the time cost of the lawsuit will be increased. Therefore, it is necessary to add the lawsuit of unjust enrichment at the same time, require the executed person to return the wrong remittance funds, and apply for enforcement in a timely manner. However, due to the nature of ordinary claims, there is a high probability that distribution can only be obtained through participation in the distribution process, and there is a legal risk that it cannot be effectively implemented in place.
2022-09-26
26
2022-09
The golden equinox is a good time of year. In order to enrich the amateur cultural and sports life of lawyers, improve the physical quality of lawyers, and promote exchanges between lawyers, on September 24, Zhongcheng Qingtai (Jinan) Law Firm held the first table tennis competition in Jinan. The competition has men's singles, women's singles, mixed doubles and other events. In line with the sports spirit of "friendship first, competition second", the contestants spread their passion and sweat and fought bravely. Before the competition, the players put on sportswear early and started warm-up activities. Unload the fatigue of the working day and become a vigorous athlete. On the field, the players showed their magic, long attack and short block, high throw and low spin, up and down kill, brilliant, show the table tennis skills incisively and vividly. There was a burst of applause, cheering and applause from the audience. One wonderful moment after another fully demonstrated the enterprising and enterprising spirit of Zhongcheng Qingtai lawyers. The contestants showed friendship, elegant demeanor and level, and successfully completed the competition. Through this competition, the lawyers enhanced their friendship, enriched their cultural and sports life, and at the same time further stimulated their enthusiasm for competitive sports, showing the demeanor of the lawyers of Zhongcheng Qingtai Law Firm.
2022-09-26
24
2022-09
From September 23 to 24, 2022, lawyer Yu Cuilan, senior partner of Zhongcheng Qingtai (Jinan) Law Firm, and lawyer lai yinping, partner, were invited to Dongying to participate in the activities of high-level talents of Shandong united front "walking ahead and opening a new bureau. The purpose of this event is to thoroughly study and implement General Secretary Xi Jinping's important thoughts on doing a good job in the party's united front work in the new era and inspect the spirit of Shandong's important speeches and important instructions, fully implement the spirit of the Central United Front Work Conference, and give full play to the united front talents. The advantages of intensive intelligence, extensive connections and abundant resources. During the meeting, Yu Cuilan and his party carried out extensive exchanges with participating enterprises, which laid a good foundation for follow-up cooperation. Lawyer Yu Cuilan reported to Yu Jianming, deputy director of the 10th Bureau of the United Front Work Department of the CPC Central Committee, and Sun Chuanshang, deputy director of the United Front Work Department of the CPC Central Committee and director of the overseas Chinese Affairs Office, the professional and all-round legal services provided by Zhongcheng Qingtai lawyers, especially foreign-related enterprises. Director Yu and Director Sun fully affirmed and praised Zhongcheng Qingtai's innovative legal service thinking and his contribution to attracting investment.
2022-09-24
23
2022-09
Introduction Article 793, paragraph 1, of the Civil Code stipulates that the construction contract for a construction project is invalid, but if the construction project is accepted and accepted, the contractor may be compensated at a discount by reference to the contract's agreement on the price of the project. On the basis of Article 2 of the Judicial Interpretation of Construction Projects, this provision further clarifies that the essence of discount compensation is the right to claim for the return of unjust enrichment, while retaining the pricing rules agreed in the contract on the project price when the construction contract is invalid. However, there is no further explanation and regulation on how to understand and apply the rules of discount compensation, resulting in inconsistent standards of adjudication in practice. Therefore, in this paper, the author studies the standard, scope and path of the discount compensation rule, and responds to the dispute. The nature of 1. discount compensation. In the field of construction engineering, the contractor does not have the qualification of the construction enterprise but signs the construction contract with others. The validity of such contracts is denied by the provisions of Articles 1, 2 and 3 of the (I) of the Supreme People's Court on the Interpretation of Legal Issues Applicable to the Trial of Construction Contract Disputes. However, regardless of the validity of the contract, the meaning of invalidity is not the effect of the performance of the contract, does not mean that there is no legal effect, the contract price of the dispute can not be avoided because of the invalidity of the contract. The Judicial Interpretation of Construction Projects (Fa Shi [2004] No. 14) stipulates that the construction contract for a construction project is invalid, but if the construction project is qualified after completion and acceptance, and the contractor requests to pay the project price with reference to the contract, it shall be supported. This latter provision is followed by the first paragraph of Article 793 of the Civil Code, and its expression is amended to read: "The construction contract for a construction project is invalid, but if the construction project is accepted and accepted, the contractor may be compensated at a discount by reference to the contract's agreement on the price of the project." Although in the case of invalid construction contract, the contractor to perform the construction obligations rely on the payment of the loss, but this does not mean that invalid legal acts do not have legal consequences. Given that the original has been converted into construction works, it is not suitable for return or cannot be returned. At this time, the contractor may request discount compensation to eliminate the contractor's unjust enrichment, and its right to return the original property is transformed into the right to return the unjust enrichment. It can be seen that the nature of discount compensation is positioned as unjust enrichment most in line with the basis of the right of claim and the scope of interest protection of invalid contracts, which not only solves the problem of imbalance of interests from the perspective of equity, but also makes up for the legislative gap of contract liquidation. Standard of 2. discount compensation In the field of construction engineering, the general standard of discount compensation for construction funds can be divided into two types, one based on objective value and the other based on contractual agreement. Among them, the objective value as the settlement standard is also understood as the project quota as the standard, the method is relatively out of the subjective will of the parties to the contract, generally refer to the price of professional appraisal institutions or according to the relevant administrative departments issued at the time of the signing of the contract guidance price. The settlement by reference to the contract is more based on the subjective will of the parties to the contract, combined with the specific project for price settlement. The second of the above two views is considered to be more in line with the specific circumstances of the construction contract, because in the field of construction projects, the project price agreement as the result of the game between the parties to the contract, the agreed amount is relatively reasonable, but also reflects the true meaning of the contractor. On this basis, if we do not refer to the contract price as the settlement standard, but simply calculate the project quota, it is possible to make the settlement price higher than the price agreed by the parties to the contract, resulting in the contractor in the case of invalid contract to obtain more benefits than when the contract is valid. In this way, the contractor may take the false qualification and other means to make the construction contract invalid, in order to obtain more benefits. Referring to the contract price as the settlement standard, not only can avoid the above situation, but also can take into account the true intention of the parties to the contract, reduce the various disputes in the process of determining the project price, and balance the interests of the parties to the contract. However, the author believes that the above two views are not opposite, there is no need to fix a certain calculation method, let alone refer to the contract agreement to determine the project price under any circumstances. For example, when there are multiple contract prices and the authenticity cannot be distinguished, the true meaning of the parties to the contract price agreement cannot be confirmed. At this time, the court can make a judicial determination of the project price disputed by the parties by entrusting the appraisal, based on the appraisal conclusion issued by the appraisal institution, that is, the project quota. The above views are reflected in the dispute over the construction contract between Jinan Yongjun Materials Co., Ltd. and Qihe Huandun Steel Structure Co., Ltd. (2011) Minti Zi No. 104 Bulletin. The Supreme Court held that in the three different contracts provided by the parties in this case, the distribution of the contract price was irregular and the authenticity could not be distinguished, and the true intention of the parties to the contract price agreement could not be confirmed. Therefore, none of the three contracts can be used as the basis for the settlement of the project price. At this time, it is more in the interests of all parties to settle the project quota, and it is not improper to make a judicial determination of the project price disputed by both parties according to the appraisal conclusion issued by the appraisal institution. At the same time, the Supreme Court believes that if the appraisal agency makes an appraisal conclusion based on the fixed price and the market price, the project price should generally be determined at the market price when determining the project price. This is because most of the project cost determined on the basis of quota fails to reflect the construction, technology and management level of the enterprise, and the quota standard often fails to keep up with the changes in market prices, while the market price information released by the construction administrative department is closer to the market price, closer to the actual cost of the construction project, and in line with the relevant provisions of the contract Law, which is more fair to both parties. It can be seen that the determination of the project price by reference to the contract still has its limitations, with objective value as the settlement standard of the project quota standard settlement as a supplement, but also to a certain extent to make up for its limitations, the two complement each other, not absolute opposition. If the price of the project is only mechanically understood by reference to the contractual agreement, it may deviate from the actual situation and ignore the liability of the parties in the actual performance process. Therefore, when determining the discount compensation by reference to the contract agreement, it is still necessary to consider the objective value of the project and determine the calculation method in combination with the specific case, so as to avoid excessive deviation from the actual situation and realize the fairness of the individual case. Scope of 3. discount compensation As mentioned above, when the construction contract for the construction project is invalid and the construction project complies with Article 793 of the Civil Code, it is reasonable and realistic to compensate the contractor by reference to the contract's agreed discount on the price of the project. Questions that must be answered before the scope of discount compensation is judged to be applicable. Article 157 of the Civil Code provides for the legal consequences of an invalid contract: property acquired on the basis of an invalid contract shall be returned. At the same time, according to Article 33 of the Minutes of the National Court Civil and Commercial Trial Work Conference, after the contract is not established, invalid or revoked, the factors of property appreciation or depreciation shall be fully considered when determining the return of property. If the two parties acquire property as a result of the contract, they shall return it to each other after the contract is not established, invalid or revoked. If the property such as equity or house that should be returned increases in value or depreciates relative to the price agreed in the contract, the people's court shall comprehensively consider the correlation between market factors, the operation or addition of the transferee and the increase in value or depreciation of the property, reasonably distribute or share it among the parties, so as to avoid one party benefiting from the failure, invalidation or revocation of the contract. If the subject matter has been lost, resold to others or otherwise unable to be returned, the people's court shall not support the party's claim to return the original, but if it claims to be compensated at a discount, the people's court shall support it in accordance with the law. At the time of discount, the compensation standard shall be determined on the basis of the price agreed upon by the parties at the time of the transaction, taking into account the benefit of the parties in the loss or resale of the subject matter. The insurance or other compensation obtained by the parties at the time of the loss of the subject matter, and the consideration obtained at the time of resale, are the benefits obtained by the parties as a result of the subject matter. The portion of the benefit that is higher or lower than the price shall also be reasonably distributed or shared among the parties. It can be seen that in the discount compensation, the compensation standard should be determined by taking into account the loss of the subject matter or the benefit of the resale. Article 793 of the Civil Code explicitly refers to the contract's agreement on the price of the project to compensate the contractor at a discount, and has complied with the framework outlined in Article 157 of the Civil Code and Article 33 of the Minutes of the National Court Conference on Civil and Commercial Trials. "Discount compensation" already reflects the nature of compensation, that is, after adjusting the reasons for the loss of payment, the interest between the construction project and the project payment changes. Its scope should be capped at the cost of the project, and the issue of damages for breach of contract should be considered separately for adjustment factors such as construction quality and delay. When there is a cross-over of discount compensation and damages, in order to facilitate the parties to resolve the dispute, it can also be resolved together, with the discount compensation to make up for the change of interests arising from the act of payment. After determining the upper limit of discount compensation, the scope of compensation needs to be further determined. In principle, the scope of compensation should be limited to the scope of unjust enrichment. Since the discount compensation itself is applicable on the basis that the original cannot be returned or the original is not suitable for return, in the field of construction projects, the contractor has actually completed the construction project under normal circumstances can not be returned, so only the discount compensation to fill the contractor's loss. Therefore, the scope of discount compensation should be the loss of the contractor's interests, that is, the contractor's unjust enrichment. When the value of the construction project is calculated, both parties are also responsible for the causes that lead to the invalidity of the contract according to the actual situation, mainly based on the market position of the parties at the time of the conclusion of the contract, the reasons for the invalidity of the contract, and the consequences of invalidity to comprehensively measure the proportion of fault that both parties should bear, and evaluate on the basis of authenticity and rationality. Expenses paid to obtain benefits can be deducted within the scope of income. If one party is required to assume more responsibility, it will obviously lead to an imbalance of interests. Therefore, when referring to the contract's agreement on the price of the project, the standard of return of the original shall be used to claim discount compensation, and the contractor shall return the unjust enrichment to the contractor. The factors of 4. discount compensation. After clarifying the standard and scope of discount compensation when the construction contract is invalid, it will face the most direct problem in judicial practice, that is, what is the specific reference scope of "discount compensation with reference to the contract on the project price"? There are agreements related to the project price in the construction contract, including not only the amount of the project price, but also the payment node and payment time of the project price. In addition, the composition of the construction price differs significantly from other types of contract prices, and costs such as management fees, warranty payments, and even interest may be classified as part of the construction price to some extent. Whether the above matters are factors that should be taken into account and by what standard to measure, some have already determined the standard in practice, but some do not have a completely unified standard of identification in practice, and there are cases of different judgments in class cases, which the author will analyze one by one. (I) on the payment time of the project price. In the case of a dispute over the construction contract of Beijing Shougang Construction Group Co., Ltd. and Tonghua Chengxin Real Estate Development Co., Ltd., the Supreme Court held in the (2020) Civil judgment No. 1192 that "Article 2 of the Judicial interpretation of Construction projects is based on the discount compensation stipulated by the above-mentioned law." it is determined that the parties can request discount compensation for the project price with reference to the contract. According to this provision, the time of payment of such discount compensation shall also be based on the time of payment of the contract price." The decision held that the time of payment of the project should also be based on the time of payment of the project price agreed in the contract. However, contrary to this view, in the case of Xiao Chunyou and Linquan County People's Government's construction contract dispute, the Supreme Court stated in the (2019) Supreme Famin Shen No. 1218 Civil Ruling that "Under the circumstances that the construction contract is invalid, the original intention of Article 2 of the Judicial Interpretation of Construction Projects" on requesting payment of the project price by reference to the contract "should be to determine the project price by reference to the contract agreement, mainly refers to the project payment pricing method, pricing standard and other agreements related to the amount of the project price, and the terms of the payment node agreement between the two parties, does not belong to the applicable contract agreement." The decision held that the time of payment of the project should not be based on the time of payment of the project price agreed in the contract. It can be seen that there are different views in judicial practice as to whether the time of payment is a condition that should be referred to the contract. In this regard, the author believes that, in view of the "Civil Code" Article 793 clearly stipulates that if the construction project has passed the acceptance, the contractor can be compensated by reference to the contract on the price of the project. It can be seen that one of the prerequisites for discount compensation is the acceptance of the construction project, and the payment time of the project price is mostly carried out according to the node, so that on the one hand, the construction of the project can be maintained, on the other hand, the interests between the contractor and the contractor can be balanced. However, when the construction project acceptance is qualified, it means that the construction project has been completed, according to the node time payment is meaningless, at this time the construction contract is invalid, the contractor shall return the unjust enrichment to the contractor, should pay the project price directly to the contractor. Therefore, when the construction project acceptance is qualified, the contractor should pay the corresponding project price, the payment time is no longer bound by the contract, the contract agreed payment time, also has no reference significance. (II) Questions About Management Fees In the case of the dispute over the construction contract between Guangxi Construction Engineering Group No. 1 Construction Engineering Co., Ltd. and Aoshihua Construction Project, the Supreme Court held in (2020) Civil Ruling No. 7019 that "on whether Aoshihua should pay project management fees to a construction company. Since the Labor Service Agreement signed between Aoshihua and Yijian Beihai Branch is invalid, the agreement in the Labor Service Agreement that Yijian Beihai Branch will charge Aoshihua a project management fee at 15% of the total settlement price is also invalid. Therefore, the original judgment was not improper in calculating the amount paid by the construction company." The judgment is that the management fee is not a factor to be referenced. However, in the case of Xu Busheng and Qinghai Branch of Chongqing No.1 Construction Group Co., Ltd., the Supreme People's Court held in (2020) Civil Judgment No. 242 of the Supreme People's Court that "Chongqing No.1 Construction Company and Qinghai Branch of Chongqing No.1 Construction Company actually performed their management duties according to the stipulations of the Internal Contract, and the labor achievements they paid have been materialized into the performance of the construction contract of the construction project involved in the case, therefore, Xu Busheng should bear the corresponding compensation obligations. The decision found that the management fee was a reference factor. Although the above decisions give different answers as to whether the management fee is a reference factor, they are essentially the same. Consistent with this decision is the minutes of the 7th judges' meeting of the Second Circuit Court of the Supreme People's Court in 2020, which states that construction workers
2022-09-23
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