19
2022-09
On September 17, 2022, Zhongcheng Qingtai Jinan region learned the spirit of General Secretary Xi Jinping's important speech and welcomed the Party's 20 major party class activities successfully held in the 55-floor conference room of China Resources Building. Zhongcheng Qingtai Jinan regional senior partner, director of each branch, director and deputy director of business department, director and deputy director of each executive committee participated in the party class activities. The meeting was presided over by Du Wentang, senior partner and director of Jinan Regional Management Committee. Politics Leads Party Building First Han Honggang, director of the general office of Zhongcheng Qingtai Law Firm, made a speech on "learning the spirit of General Secretary Xi Jinping's important speech and welcoming the 20th National Congress of the Party". Director Han Honggang pointed out that Zhongcheng Qingtai has always insisted on strengthening party building as a soul-building project and actively guided lawyers to develop in the right direction indicated by the Party. Develop excellent lawyers into party members and give priority to training party lawyers; adhere to political guidance, organizational guidance, talent guidance, style guidance, service guidance, and responsibility guidance, and promote the construction of a high-quality Zhongcheng Qingtai lawyer team that is politically reliable, strong in business, and trustworthy in ethics, and be a good lawyer to the satisfaction of the party and the people. Merit not Tang Donation Diligence Yao Huming, senior partner and deputy director of Zhongcheng Qingtai (Jinan) Law Firm, made a speech on the study and training of lawyers' practice discipline. Director Yao Huming stressed that lawyers should thoroughly study and implement Xi Jinping's thought of rule of law and enhance their political nature. Only when lawyers speak politics can they realize the long-term development of their practice path. The tide climbs high and strides forward Geng Guoyu, Secretary of the Party Committee and Director of Zhongcheng Qingtai (Jinan) Law Firm, emphasized that Zhongcheng Qingtai must always be built under the leadership of party building. The party committee of the law firm insists on leading the development of the law firm with party building. Under the guidance of the spirit of General Secretary Xi Jinping's important speech, the law firm's party building work, strategic layout, talent introduction, market development, business capabilities, and public welfare services have been steadily advanced, and achieved good results. Director Geng Guoyu then made arrangements for the next work in Jinan, pointing out that in the new development period, the law institute should focus on the overall innovation and development of the legal service market and realize a new breakthrough in the development orientation of the law firm. Create a professional-oriented atmosphere from the aspects of professional personnel training, professional brand building, professional reserve construction, professional product research and development, etc. At the same time, relevant arrangements have been made for the team cooperation, operation support and culture construction of the law firm, encourage everyone to greet the smooth convening of the 20th National Congress of the Party with a fuller working condition. The more you know, the more you know, the more you know, the more you reach. The 20th National Congress of the Communist Party of China is about to be held. All lawyers will thoroughly implement the spirit of this meeting, strive to adapt to the new situation of economic and social development and legal service market, bend down and work together to meet the victory of the 20th National Congress of the Communist Party of China with more excellent results!
2022-09-19
17
2022-09
On September 14, 2022, the adjustment list of special committees and professional committees of the 10th National Lawyers Association was officially announced. Geng Guoyu, Secretary of the Party Committee and Director of Zhongcheng Qingtai (Jinan) Law Firm, was appointed Director of the Rural Revitalization Legal Professional Committee of the National Lawyers Association. Gao Jinjun, Secretary of the Qingdao Regional Party Committee of Zhongcheng Qingtai and Director of the Intellectual Property Committee of the Shandong Lawyers Association, was appointed Deputy Director. Tenth National Lawyers Association Director of Rural Revitalization Legal Professional Committee Director and senior partner of Shandong Zhongcheng Qingtai (Jinan) Law Firm, representative of the 11th Shandong Provincial Congress of the Communist Party of China, member of the 15th Jinan CPPCC. He is currently the executive director of the 10th All-China Lawyers Association, the executive director of Shandong Lawyers Association, and the chairman of Jinan Lawyers Association; the legal adviser of the Shandong Provincial Committee of the Communist Party of China; the legislative adviser of the Shandong Provincial People's Congress; the legal adviser of the Jinan Municipal Committee of the Communist Party of China and the Jinan Municipal People's Government; Arbitrator of China International Economic and Trade Arbitration Commission, Jinan Arbitration Commission, Qingdao Arbitration Commission, Zibo Arbitration Commission, Shijiazhuang Arbitration Commission, and Shijiazhuang Arbitration Commission; Visiting Professor of Yantai University; executive director of Jinan Law Society; administrator of the first batch of bankruptcy cases of Shandong Higher People's Court. He has been awarded the honorary titles of "national excellent lawyer", "national advanced individual of public legal service", "top ten lawyers of Shandong Province", "excellent lawyer of Shandong Province", "advanced individual of standardized practice in judicial administration system of Shandong Province", "top-notch professional and technical talents of Jinan City", and won the second class merit and third class merit each. Tenth National Lawyers Association Deputy Director of Intellectual Property Professional Committee Gao Jinjun Lawyer Master of Law, Expert of the Expert Advisory Committee of the Supreme People's Court's Intellectual Property Case Guidance Research (Beijing) Base, Expert of the Supreme People's Procuratorate's Civil Administrative Case Advisory Expert, Deputy Director of the Intellectual Property Committee of the All China Lawyers Association, Director of the Intellectual Property Committee of the Shandong Lawyers Association, Qingdao Arbitration Vice President of the International Trade Arbitration Institute of the Commission, Senior Researcher of the Arbitration Institute of the Xi'an Arbitration Commission, Director of the Expert Committee of the Legal Consulting Center of Ocean University of China, secretary of the Party Committee of Shandong Zhongcheng Qingtai (Qingdao) Law Firm. Won "Qingdao Top Ten Young Lawyers", "Shandong Province Outstanding Lawyers", "Qingdao Top Talents", "Supreme People's Procuratorate Civil Administrative Procuratorial Expert Consultation Network Outstanding Expert", "National Free Blood Donation Award Bronze Award, Silver Award", "Qingdao More than 20 honorary titles such as the Red Cross Dedying Award. He was selected into the legal expert database of Shandong Provincial People's government and Qingdao Municipal People's government, participated in the legal advisory work of provincial and municipal governments, and served as a member of the administrative reconsideration committee of Shandong Provincial People's government. Many cases have been rated as one of the top ten cases and typical cases in the country, provinces, and cities; their performance has been reported on dozens of mainstream media or websites across the country; People's Daily (April 22, 2015) and many other newspapers published an interview with him. He has published more than 30 papers (including foreign core journals), some of which have been rated as national or provincial excellent papers, and edited or participated in the compilation and publication of many works. For many years, he has given keynote speeches at forums sponsored by the Chinese Law Society, the All China Lawyers Association, domestic and foreign universities and research institutions (associations, societies), etc.; he has visited South Korea and Japan many times to participate in international academic conferences and deliver keynote speeches. This selection is the affirmation and appreciation of the professional ability and legal literacy of Zhongcheng Qingtai lawyers by the National Law Association. Zhongcheng Qingtai will be committed to providing customers with excellent legal services, actively serving economic and social development, and maintaining social harmony and stability; at the same time, it will earnestly perform the functions of professional committees, vigorously promote the healthy development of the national lawyer industry, and make due contributions to the construction of the rule of law in China.
2022-09-17
16
2022-09
Point of view... "One room, two sales" problem practice.
The author recently handled a case of "one house, two sales", this paper will expand the analysis of how to deal with different situations in the practice of "one house, two sales" and risk prevention issues. Basic case Company A (canceled in 2004) signed a contract with Company B in 2001 and agreed to purchase a number of commercial houses of Company B. In September of the same year, Company A signed a Housing Purchase and Sale Agreement with Company C to resell the above-mentioned commercial houses purchased from Company B to Company C for demolition and resettlement, including the two houses involved in the case. After the contract is signed, Company C will pay Company A according to the contract, the two sides immediately handled the delivery of the house. Company C used all the above-mentioned houses for the demolition and resettlement of employees, and the employees subsequently moved to the above-mentioned houses for use until now. After that, Company A delayed the registration of the house transfer. In November 2018, Company C learned that Company B had certified the two houses involved in the case to Lu Mou on December 12, 2005. Lu mou was originally an employee of company a. company B concocted two "commercial housing sales contracts" with Lu mou on December 22, 2005 according to company a's transfer application, and cooperated with Lu mou to issue certificates for the two houses involved in the case to Lu mou. Based on the above facts, Company C filed a lawsuit with the court, demanding that the two "Commercial Housing Sales Contracts" signed by Company B and Lu Mou be confirmed invalid in accordance with the law. Finally, the court held that company B signed two "commercial housing sales contracts" with Lu mou according to the application of company a. company B claimed that there was no housing sales contract relationship with Lu mou, and Lu mou did not provide evidence to prove that it actually fulfilled the obligation of housing payment delivery. therefore, the meaning of the two "commercial housing sales contracts" concluded between company B and Lu mou was inconsistent, the agreement of the offer and commitment was not formed, so the two "commercial housing sales contracts" were not established. The essence of the case was that Company A sold one house and two houses. Company A colluded maliciously with Lu Mou. Company B mistakenly cooperated with Company A and Lu Mou to transfer the house involved in the case to Lu Mou's name under the condition of being cheated by Company A and Lu Mou. In the trial, Company B admitted that there was no contract relationship between Company B and Lu, and Lu did not provide evidence to prove that it actually fulfilled the obligation to deliver the house payment, which did not meet the requirements for the establishment of the contract. Therefore, the first instance ruled that the two "Commercial Housing Sales Contracts" between Company B and Lu were not established, and the second instance upheld the original judgment. Article 220, paragraph 1, of the Civil Code stipulates: "If the obligee or interested party considers that the matters recorded in the real estate register are incorrect, he may apply for correction of the registration. If the obligee recorded in the real estate register agrees in writing to make the correction or if there is evidence to prove that the registration is indeed wrong, the registration authority shall make the correction." From then on, company c may apply to the real estate registration agency for correction of registration with the effective judgment. The principle of handling one room and two sales In the above-mentioned case, the second transaction of the house involved in the case was judged not to be established because there was no agreement to buy and sell, in practice, for the sale and purchase behavior, the overall summary is nothing more than normal transactions, malicious collusion and other reasons for abnormal transactions three possibilities. In order to identify malicious collusion, it is generally possible to exclude normal trading and other causes by proving the existence of an association, low-cost transfer and applying rules of thumb. When the seller and the third party maliciously collude to enter into a separate house purchase and sale contract and then sell the house involved to the third party, it should be handled according to the relevant rules obtained in good faith, and judge whether the third party is in good faith when signing the contract (I .e. whether there is intentional or gross negligence), whether the transfer price is reasonable, whether it is registered or delivered through factual evidence, etc. If a third party acquires the ownership of the house in question in good faith, the original right holder may claim damages from the person who has no right to dispose of the house in accordance with the provisions of Article 341, paragraph 2, of the Civil Code. At the same time, according to the relevant provisions of the Supreme People's Court on Several Issues Concerning the Trial of Housing Registration Cases, if a third party has acquired the ownership of the house involved in good faith, the court shall rule to reject the plaintiff's lawsuit for subsequent transfer registration; the accused house registration is illegal, But if the revocation of the judgment will cause heavy losses to the public interest or the house has been acquired in good faith, the judgment confirms that the accused is illegal, but does not revoke the registration. In practice, if several contracts are valid and the buyer requires to perform the contract, according to the provisions of the minutes of the eighth national court civil and commercial trial work meeting of the Supreme people's Court, "when hearing a dispute over the sale of a house, if several contracts are valid and the buyer requires to perform the contract, generally, the right protection shall be determined in accordance with the order of registration of the change of ownership of the house, the legal possession of the house and the performance of the contract, and the order of the establishment of the contract of sale. However, the buyer who has registered in bad faith cannot have priority over the buyer who has legally occupied the house. The time of establishment of the contract of sale shall be determined by the time of filing by the competent authority, the time of signing the contract and other evidence". In the case of "one house, two sales", if the two contracts involving the common subject matter have legal effect, the real estate registration is better than the real estate registration. However, if two contracts involving the same subject matter, one of which is not legally effective or is found to be invalid, the buyer of the contract does not have the right to claim the subject matter, and certainly cannot fight the other legally valid contract buyer's right to claim the subject matter. How to prevent "one room two sell"? It is suggested that when signing the contract, the buyer of the house should have a detailed understanding of the property right status of the house, the current situation of the use of the house and other basic information. After the contract is signed, the seller should be urged to cooperate with the transfer procedures in a timely manner. The following measures can be taken to ensure that the ownership of the house can be obtained: 1. Registration of advance notice The buyer may apply for advance notice registration of real estate in accordance with the provisions of paragraph 1 of Article 85 of the detailed rules for the implementation of the interim regulations on Real Estate Registration in accordance with the agreement: (1) commercial housing and other real estate presale; (II) real estate sale and mortgage; (III) to set up mortgage on pre-purchased commercial housing; in (IV) with other circumstances stipulated by laws and administrative regulations, go through advance notice registration when purchasing commercial housing, the advance notice registration has the effect of public announcement. Article 15, paragraph 2, of the Interpretation (I) of the Supreme People's Court on the Application of the Property Rights Section of the the People's Republic of China Civil Code stipulates that under the following circumstances, the transferee of immovable property shall be deemed to know that the transferor has no right of disposition: within the validity period of the advance notice registration, without the consent of the obligee of the advance notice registration. After the buyer has registered the advance notice, the seller has no right to dispose of the house without authorization, thus preventing the third party from obtaining it in good faith. Although most local registration agencies handle advance registration for presale commercial housing, in fact, advance registration can also be carried out for second-hand housing transactions. However, it is worth noting that after the advance notice registration, if the creditor's right is eliminated or the real estate registration can be carried out, both parties to the advance notice registration should apply to the real estate registration institution for transfer registration in time. Otherwise, if the creditor's right is eliminated or the registration is not applied for within 90 days from the date when the real estate registration can be carried out, the advance notice registration shall be invalid. If the transfer registration cannot be applied for due to various reasons, it is recommended that both parties apply to the real estate registration agency for advance notice registration again for extension. 2. Handle online signature filing Online signing and filing can make real estate transactions more transparent and fully protect the stability of commercial housing transactions. Whether it is a new housing transaction or a second-hand housing transaction, after the buyer and the seller have signed a housing sales contract, they can go to the relevant department for online signing and filing., The online signature number formed by the record is published online and available for relevant parties to inquire, so as to prevent "one house, two sales" or even "one house selling more".
2022-09-16
15
2022-09
"Only Green" is a key support work of the "Excellent Stage Art Project to Celebrate the 100 Anniversary of the Founding of the Communist Party of China". On New Year's Eve on January 31, 2022, the play was featured in the "2022 Central Radio and Television General Station Spring Festival Gala". The segment made "Green Waist" a popular word, but the full version must watch the national tour of the dance drama. On September 14, 2022, the dance drama landed in Quancheng, fortunately, I watched the first performance at the Shandong Grand Theater, and I knew that "Only This Green" is not only a "green waist", but a dance drama with a complete plot. Through the seven chapters of "exhibition of scrolls, asking for seal, singing silk, searching for stones, learning to write, quenching ink and painting", "This Green Only" tells the story of a young researcher from the Forbidden City, as an "exhibition scrolls person", who has a deep understanding of Wang Ximeng, a painter who is unknown in time and space but has a long history, using dance, music, setting and photoelectric projection to show the process of his painstaking creation of "A Thousand Miles, the expression of the birth of a work of art depends on the continuous refinement of the body and mind of seal carvers, quarrying pigments, silkworm weavers, pen makers, ink makers and painters, in order to create a graceful and charming, sometimes peaks and mountains, sometimes majestic, sometimes paper fragrance ink flying, sometimes full of green mountains and green waters, melting the air of the vast mountains and mountains. Whether it is "A Thousand Miles of Rivers and Mountains" itself or "Only This Green" dance drama, it is actually the crystallization and expression of painstaking creation, which is why intellectual property rights should be protected. On May 22, 2022, Zhou Liya, director of "Only Green", issued an article questioning the plagiarism of "Shuangxiang Trail" launched by Zhejiang TV Children's Channel and dubbed it original. On May 23, Zhejiang TV Children's Channel issued an apology and removed "Shuangxiang Path" from the shelves. In fact, "Only This Green" is not only a dance work, but also a combination of a drama work and a dance work. The nature of its work is more complicated. At the same time, compared with other copyright cases, the number of dance infringement cases in judicial practice is not comparable, and the judgment of dance works infringement is also controversial. When judging dance works infringement, we seem to pay too much attention to posture and movement, while ignoring the coherent process expression before and after dance, as well as its combination with sound and light, makeup, clothing, stage modeling design, etc., especially the continuous development of science and technology, with the continuous integration of AR (augmented reality) and VR (virtual reality) technology, we should re-examine the criteria for judging the infringement of dance works. Do 1. need to compare the removal of common sexual elements in dance When it comes to dance infringement, the defendant often defends that the common elements of dance are regarded as public resources, and a large number of the same dance movements can be used in any dance, thus requiring the elimination of the common elements of dance. There is a decision to support this defense, but it does not require the elimination of common elements. For example, the Beijing No. 2 Intermediate People's Court in the "Hello to the Motherland" Yangko dance infringement case "but these same dance movements are universal movements necessary for Yangko dance and can be used by anyone. Moreover, the overall choreography of the dance works of the two sides is different, and the timing, order and form of expression of these same dance movements in the dance works of the two sides are also different." In view of the fact that movements will be standardized in the process of specific dance training, if the same movements are eliminated as common elements, there may be no place for both sides to compare. However, the connection changes of different movements are rich and colorful, and the ways of expression are also diverse. Therefore, it is not necessary to eliminate common elements in judging dance infringement. The key is to see the arrangement, connection and expression of these elements. Is 2. infringement comparison frame by frame or overall comparison If you compare frame by frame, even the same dance performance is difficult to achieve complete consistency, frame by frame comparison results will certainly find a lot of different details, but ignore the overall expression. Therefore, the principle of dance infringement comparison should be based on the judgment method of trademark approximation. First, "overall comparison" should be carried out, and the whole dance should be regarded as a complete work. The overall comparison should be carried out for the starting, turning, transition and connection of movements. If the overall approximation is formed, the key parts of the two dances should be further "compared" to find out the key parts of their respective dances, it depends on whether the expressions of the main movements, connections and emotional contents are similar. If they are similar, it can be judged that the two dance works are substantially similar. How 3. judge the expression of dance According to the "Implementation Regulations of the Copyright Law", "dance works refer to works that express thoughts and emotions through continuous movements, postures, expressions, etc." When dealing with dance works, we pay too much attention to the movements, postures and expressions of dancers. In fact, the dance drama "Only Green" not only shows the skill of "blue and green waist", but also expresses richer ideological connotation through the mutual cooperation of dancers, the transformation of stage setting, movement, transposition and so on, to judge the expression of dance, we should learn from the case of Chen Zhe (Qiong Yao) v. Yu Zheng (Yu Zheng) of the Third Intermediate People's Court of Beijing, whose protection works "the relationship between characters, specific plots and the whole formed by the series of specific plots", which corresponds to the setting of the relationship between the lead dance, the main dance and the companion dance in the dance choreography, and the corresponding positions, interactive expression and the evolution of the plot, at the same time, it is also necessary to consider "the combination of music, clothing, lighting and movements to express specific themes and thoughts and emotions" (see: Beijing Haidian District People's Court "Qianshou Guanyin" infringement case). Judging dance expression is obviously not limited to movements, postures and expressions. In fact, the "Regulations for the Implementation of the Copyright Law" also provide enumeration for the definition of dance works, but do not restrict more expressions of dance works. 4. dance sign moves or shapes how to protect For example, Yang Liping's peacock dance movements or modeling can be protected separately. Beijing Dongcheng District People's Court Yunnan Yang Liping Information Technology Development Co., Ltd. and Beijing Xinzheng Yicheng Catering Management Co., Ltd. and other unfair competition disputes, the court held: "The pattern involved on the central screen of the restaurant involved in the case and the" Moonlight "dance work, The former is static, the latter is dynamic, and the pattern involved in the case can find the corresponding movements and shapes during the dance process, whether the two constitute a substantial similarity in the sense of copyright law depends on whether the action modeling corresponding to the pattern involved belongs to the original expression of the dance work. Dance works are the organic combination of dynamic combination, static movement and modeling composed of continuous movements. On the one hand, the originality of dance works is reflected in the choreography, combination and connection between dance movements, on the other hand, it may also be reflected in specific dance movements. The dance movements corresponding to the pattern involved in the case in the dance works of Moonlight, combined with the dancer's specific makeup style and moonlight background, express certain thoughts and feelings, reflect the author's choice, design and arrangement, and are original. the behavior of the restaurant involved in the case using the pattern involved infringes the copyright of the dance works of Moonlight." The court held that the dance manifested itself as a composite of both dynamic and concrete static movements, affirming the protectability of the signature movements or shapes. 5. whether access to the obligee's work is a necessary prerequisite for judging infringement. Should the judgment of infringement be based on the premise of "contact" with the obligee's work? Assuming that the alleged infringer did not contact the plaintiff's work, but independently created a similar work, it can only be identified as "identical" work rather than infringement, which is different from the reasoning of cheating in the same volume of the college entrance examination. However, it is difficult to judge whether the accused infringer has actual contact, so it is generally judged according to the influence of the obligee's dance communication and the possibility of the accused infringer's contact. As the plaintiff, he should provide considerable evidence to confirm it before safeguarding his own rights. Judging dance infringement is also a complex process. It is necessary to look at the overall expression of dance as a whole, pay attention to its key original parts, and also consider the special effects produced by the integration of scientific and technological elements into music, stage design, clothing modeling and makeup. This is a complex process of legal re-understanding. So, "only this green" is not just "green waist"......
2022-09-15
13
2022-09
On September 2, 2022, the 36th meeting of the Standing Committee of the 13th National People's Congress of the People's Republic of China adopted the Law on the Quality and Safety of the People's Republic of China Agricultural Products (hereinafter referred to as "this Law"), which shall come into force on January 1, 2023. In fact, the Law on the quality and Safety of the People's Republic of China Agricultural products was adopted at the 21st meeting of the standing Committee of the 10th National people's Congress on April 29, 2006 and came into force on November 1, 2006. the People's Republic of China October 26, 2018, it was revised once at the sixth meeting of the standing Committee of the 13th National people's Congress. This is a revised re-publication. This revision has a lot of content, and at the legislative level, it has improved the quality and safety management system of agricultural products, refined the traceability mechanism of agricultural products, added a new system of certification of commitment to standards, improved the supervision and inspection system, and clarified "farmers" as agricultural product producers and operators. The status of the company has clarified the handling methods and punishment standards for "farmers" who violate the law, for the first time, the main person in charge of the competent department "takes the blame and resigns" as the way to deal with the violation of the law by the competent department. This revision refers to the relevant experience in the supervision and management of agricultural products in the past, combined with the new situation brought about by the sinking and popularization of the Internet and e-commerce as sales channels to the sales and management of agricultural products and the new requirements for the safety and quality of agricultural products under the new situation, it has a very high guiding significance and normative role for the whole process of agricultural product production, sales and management. The lawyers of the firm sorted out the key parts of this revision in order to provide some convenience for agricultural production and operation enterprises and individuals. 1 Quality and safety standards for agricultural products Article 2 of the "the People's Republic of China Agricultural Product Quality and Safety Law" before the revision reads "The quality and safety of agricultural products referred to in this law refers to the quality of agricultural products that meet the requirements of safeguarding human health and safety." After this revision, Article 2 is changed to "The quality and safety of agricultural products referred to in this Law refers to the quality of agricultural products that meet the quality and safety standards of agricultural products and meet the requirements for protecting human health and safety." With regard to the standards for the quality and safety of agricultural products, Article 5 clearly stipulates that "the competent agricultural and rural authorities and the market supervision and administration departments of the State Council shall, in accordance with the functions and duties prescribed in this Law, supervise and administer the quality and safety of agricultural products. Other relevant departments of the State Council shall, in accordance with the functions and duties prescribed in this Law, undertake the work related to the quality and safety of agricultural products." After consulting the official website of the Ministry of Agriculture and Rural Affairs, the Ministry of Agriculture and Rural Affairs has set up the Agricultural Product Quality and Safety Supervision Department, and the Agricultural Product Quality and Safety Supervision Department has five offices: the General Office, the Standards Office, the Monitoring Office, the Supervision Office, and the Emergency and Evaluation Office. Its main responsibilities are Organize and implement work related to the supervision and management of agricultural product quality and safety. Guide the construction of agricultural product quality and safety supervision system, inspection and testing system and credit system. Undertake agricultural product quality and safety standards, monitoring, traceability, risk assessment and other related work. The Agricultural Product Quality and Safety Supervision Department of the Ministry of Agriculture and Rural Affairs will publish various agricultural standards, safety and quality standards, and agricultural management measures and other departmental regulations on the official website from time to time. Remind agricultural production and operation enterprises and individuals should always pay attention to the specific information issued by the Ministry of Agriculture and Rural Affairs and the Department of Agricultural Product Quality and Safety Supervision. Relevant key provisions: Article 13 The State shall establish a risk monitoring system for the quality and safety of agricultural products. The competent department of agriculture and rural areas under the State Council shall formulate a national agricultural product quality and safety risk monitoring plan, and conduct quality and safety risk monitoring of key regions and key agricultural product varieties. The competent agricultural and rural departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall, in accordance with the national plan for monitoring the quality and safety risks of agricultural products and in the light of the actual production and operation of agricultural products in their respective administrative regions, formulate implementation plans for monitoring the quality and safety risks of agricultural products in their respective administrative regions, and report them to the competent agricultural and rural departments of the State Council for the record. The competent agricultural and rural departments of the local people's governments at or above the county level shall be responsible for organizing and implementing the risk monitoring of the quality and safety of agricultural products within their respective administrative regions. The market supervision and management department of the people's government at or above the county level and other relevant departments shall immediately verify and notify the agricultural and rural authorities at the same level after learning the information on the quality and safety risks of agricultural products. The competent agricultural and rural authorities that receive the notification shall report it in a timely manner. The department that formulates the agricultural product quality safety risk monitoring plan and implementation plan shall study and analyze in a timely manner, and make adjustments when necessary. Article 14 The State shall establish a risk assessment system for the quality and safety of agricultural products. The competent department of agriculture and rural areas under the State Council shall establish an expert committee on risk assessment of the quality and safety of agricultural products to conduct risk analysis and assessment of potential hazards that may affect the quality and safety of agricultural products. If the health and market supervision and administration departments of the State Council find it necessary to carry out quality and safety risk assessment of agricultural products, they shall put forward risk assessment suggestions to the competent agricultural and rural departments of the State Council. The expert committee of agricultural product quality and safety risk assessment is composed of experts in agriculture, food, nutrition, biology, environment, medicine, chemical industry, etc. 2 Clear regulatory body This revision clarifies that the agricultural and rural authorities and market supervision and management departments of the State Council shall, in accordance with the duties of this Law and the provisions, supervise and manage the quality and safety of agricultural products. Local people's governments at or above the county level shall, in accordance with this Law and the relevant provisions, determine the duties of the agricultural and rural competent departments, market supervision and management departments and other relevant departments for the supervision and management of the quality and safety of agricultural products at the same level. In the text before the revision, it was agreed that the "agricultural products wholesale market" would carry out quality and safety inspection on the agricultural products sold in the market, but the relevant contents were deleted in the new law, and the agricultural and rural management departments of the government at or above the county level were unified. Relevant key provisions: Article 5 The competent department of agriculture and rural areas and the department of market supervision and administration under the State Council shall, in accordance with the functions and duties prescribed in this Law, supervise and administer the quality and safety of agricultural products. Article 6 Local people's governments at or above the county level shall be responsible for the quality and safety of agricultural products in their respective administrative regions, uniformly lead, organize and coordinate the quality and safety of agricultural products in their respective administrative regions, establish and improve the working mechanism for the quality and safety of agricultural products, and improve the level of quality and safety of agricultural products. Local people's governments at or above the county level shall, in accordance with this Law and the relevant provisions, determine the duties of the agricultural and rural competent departments, market supervision and management departments and other relevant departments for the supervision and management of the quality and safety of agricultural products at the same level. All relevant departments shall be responsible for the supervision and administration of the quality and safety of agricultural products within their respective administrative areas. The township people's government shall implement the responsibility for the supervision and management of the quality and safety of agricultural products, and assist the people's government at a higher level and its relevant departments in the supervision and management of the quality and safety of agricultural products. 3 New commitment compliance certificate system This revision stipulates that agricultural product production enterprises and farmers' professional cooperatives shall issue certificates of commitment to meet the standards based on quality and safety control, test results, etc., and promise not to use prohibited pesticides, veterinary drugs and other compounds, and the use of regular pesticides and veterinary drug residues do not exceed the standard. Encourage and support farmers to issue certificates of compliance with commitments when selling agricultural products. Units or individuals engaged in the purchase of agricultural products shall collect and keep certificates of compliance with commitments or other quality and safety certificates, and for those engaged in the sale of mixed or sub-packaging of purchased agricultural products, a separate certificate of compliance with commitments shall be issued in accordance with regulations. Relevant key provisions: Article 39 The production enterprises of agricultural products and farmers' professional cooperatives shall implement the provisions of laws and regulations and the relevant compulsory standards of the state to ensure that the agricultural products they sell meet the quality and safety standards of agricultural products, and promise to meet the standards according to the quality and safety control and test results, Promise not to use banned pesticides, veterinary drugs and other compounds, and the residues of regular pesticides and veterinary drugs used do not exceed the standard. Encourage and support farmers to issue certificates of compliance with commitments when selling agricultural products. Where laws and administrative regulations have special provisions on the quality and safety certificates of livestock and poultry products, such provisions shall be observed. Units or individuals engaged in the purchase of agricultural products shall, in accordance with the provisions, collect and keep the certificate of commitment to meet the standards or other quality and safety certificates, and if the purchased agricultural products are mixed or sub-packed and sold, they shall issue the certificate of commitment to meet the standards in accordance with the provisions. The wholesale market of agricultural products shall establish and improve the system of inspection of the certificate of compliance with the commitment of agricultural products. The competent departments of agriculture and rural areas of the people's governments at or above the county level shall provide guidance services for the work related to the certificate of compliance and strengthen daily supervision and inspection. 4 Improve the supervision and inspection system, clear supervision and spot checks Should entrust agricultural product quality and safety testing institutions This revision clearly stipulates that the supervision and random inspection plan shall be entrusted to the agricultural product quality and safety inspection agency that meets the conditions specified in this law. This revision is a good thing for institutions engaged in the quality and safety testing of agricultural products. Relevant key provisions: Article 45 The agricultural and rural authorities and market supervision and management departments of the people's governments at or above the county level shall establish and improve the coordination mechanism for the supervision and management of the quality and safety of agricultural products throughout the process to ensure the quality and safety of agricultural products from production to consumption. The competent departments of agriculture and rural areas and the market supervision and administration departments of the people's governments at or above the county level shall strengthen the coordination and law enforcement of the supervision and administration of the quality and safety of agricultural products in the process of acquisition, storage and transportation, timely report and share the supervision and administration information of the quality and safety of agricultural products, and release the daily supervision and administration information on the quality and safety of agricultural products in accordance with their duties and powers. Article 46 The agricultural and rural authorities of the people's government at or above the county level shall, based on the results of agricultural product quality and safety risk monitoring, risk assessment, and agricultural product quality and safety status, formulate a supervision and random inspection plan, and determine the focus, method and frequency of agricultural product quality and safety supervision and random inspection, And implement the hierarchical management of agricultural product quality and safety risks. Article 47 The competent agricultural and rural departments of the people's governments at or above the county level shall establish and improve the random inspection mechanism, and organize the supervision and inspection of the quality and safety of agricultural products in accordance with the supervision and inspection plan. Agricultural product quality safety supervision and random inspection shall be entrusted to agricultural product quality safety inspection institutions that meet the conditions specified in this Law. Supervision and spot checks shall not charge fees to the persons subject to spot checks, and the samples taken shall be paid at market prices and shall not exceed the quantity prescribed by the competent department of agriculture and rural areas under the State Council. The same batch of agricultural products supervised and spot checked by the higher-level agricultural and rural authorities shall not be repeated by the lower-level agricultural and rural authorities. Five clearly including peasant households in the agricultural product management system, And clearly agreed that farmers in violation of the law. Responsibility to be assumed This revision lists "farmers" separately in the part of Chapter 7 "legal liability", which clarifies the responsibility of farmers for violating the law. This agreement takes into account the actual situation of agricultural production, combined with the current Internet and e-commerce as a sales channel sinking and popularization of the new situation and regulations, in line with the current requirements for the quality and safety management of agricultural products. Relevant key provisions: Article 70 Where a producer or operator of agricultural products commits any of the following acts in violation of the provisions of this Law, which does not yet constitute a crime, the competent agricultural and rural authorities of the local people's government at or above the county level shall order him to stop production and operation, recover the agricultural products that have been sold, make the agricultural products illegally produced and operated harmless or supervise and destroy them, confiscate the illegal income, and may confiscate the tools, equipment, raw materials and other articles used for illegal production and operation; if the value of agricultural products illegally produced and operated is less than 10,000 yuan, a fine of 100,000 yuan to 150,000 yuan shall be imposed, and if the value of the goods is more than 10,000 yuan, a fine of 15 times to 30 times the value of the goods shall be imposed. Farmers, and impose a fine of 1,000 yuan to 10,000 yuan; If the circumstances are serious, the license shall be revoked if there is a license, the public security organ may detain the person in charge and other persons directly responsible for it for not less than five days but not more than 15 days: (I) the use, in the production and operation of agricultural products, of agricultural inputs or other toxic or harmful substances that are prohibited by the State; (II) the sale of agricultural products containing pesticides, veterinary drugs or other compounds the use of which is prohibited by the State; The (III) sells animals and their products that have died of disease, poisoning or unknown causes of death. Knowing that agricultural product producers and operators are engaged in the illegal acts specified in the preceding paragraph and still provide them with production and business premises or other conditions, the agricultural and rural authorities of the local people's government at or above the county level shall order them to stop the illegal acts, confiscate the illegal income, and impose a penalty of more than 100,000 yuan. Fines below 200,000 yuan; if the legitimate rights and interests of consumers are harmed, they shall be jointly and severally liable with the producers and operators of agricultural products. Article 71 Where a producer or operator of agricultural products commits any of the following acts in violation of the provisions of this Law, which does not yet constitute a crime, the competent agricultural and rural authorities of the local people's government at or above the county level shall order him to stop production and operation, recover the agricultural products that have been sold, treat the agricultural products that have been illegally produced and operated in a harmless manner or supervise their destruction, confiscate the illegal income, and may also confiscate the tools, equipment, raw materials and other articles used in illegal production and operation; if the value of agricultural products illegally produced and operated is less than 10,000 yuan, a fine of 50,000 yuan to 100,000 yuan shall be imposed, and if the value of the goods is more than 10,000 yuan, a fine of 10 times to 20 times the value of the goods shall be imposed; For farmers, a fine of not less than 500 yuan but not more than 5,000 yuan shall also be imposed: (I) and sell agricultural products with residues of chemical substances such as pesticides and veterinary drugs or containing toxic and harmful substances such as heavy metals that do not meet the quality and safety standards for agricultural products; (II) the sale of agricultural products containing pathogenic parasites, microorganisms or biological toxins that do not meet the quality and safety standards for agricultural products; (III) the sale of other agricultural products that do not meet the quality and safety standards for agricultural products. Article 72 Where a producer or operator of agricultural products commits any of the following acts in violation of the provisions of this Law, the agricultural and rural authorities of the local people's government at or above the county level shall order the cessation of production and operation, recover the agricultural products that have been sold, dispose of the agricultural products that have been illegally produced and operated in a harmless manner or supervise and destroy them, confiscate the illegal income, and may confiscate the tools, equipment, raw materials and other articles used in illegal production and operation; if the value of agricultural products illegally produced and operated is less than 10,000 yuan, a fine of not less than 5,000 yuan but not more than 50,000 yuan shall be imposed; if the value of the goods is more than 10,000 yuan, a fine of not less than five times but not more than ten times the value of the goods shall be imposed; for farmers, a fine of not less than 300 yuan but not more than 3,000 yuan shall be imposed: (I) the facilities, equipment, disinfectants, detergents, etc. used in agricultural production sites and production activities do not comply with the relevant national quality safety regulations; (II)
2022-09-13
13
2022-09
As the saying goes, "borrow three but not two, and save the emergency but not the poor". All natural and man-made disasters, red and white events, seeing a doctor and studying are the key points in life. They help each other to give timely help, but they do not save the poor. Otherwise, there will be a "rising rice and fighting rice hatred". The rescued party will take it for granted and lose its ability to save itself. In the end, it is difficult to save both sides. There is no shortage of examples around us for the purpose of profit, of course, in legal relations is not limited to borrowing, in practice all kinds of creditor's rights and debt relations are more complex, but the purpose of realizing creditor's rights is the same. Therefore, in order to prevent the debtor from becoming insolvent, a guarantor's guarantee is required, but the guarantor's "de-insurance" makes it difficult to realize the claim. In particular, the new guarantee rules of the Civil Code are not just as simple as presuming to be general guarantees, but if there is no clear ability to identify the various "pits" in the guarantee rules, it is considered absurd, and there will be only bitter tears left. 1. the Civil Code removes the rule that the guarantor of the unclear scope of the guarantee is liable for all debts, the creditor should first clarify the scope of the guarantee liability in the contract, so as to avoid the agreement falling into the pit of "limiting the scope of the guarantee". Article 21 of the former Guarantee Law stipulates that "if the parties do not expressly agree on the scope of the guarantee or the agreement is not clear, the guarantor shall be liable for all debts". However, this provision does not appear again in article 691 of the Civil Code, but lists the scope of the guarantee and provides that "if the parties agree otherwise, they shall agree in accordance with their agreement". Therefore, the rights are handed over to both parties of the guarantee contract again, and the creditor and the guarantor make a clear agreement. For example, if the debtor only assumes the guarantee responsibility for the main creditor's right, he cannot claim other losses to the guarantor. Even if the debtor has the ability to return the principal, the guarantee contract can also limit the scope of the guarantee to "interest, liquidated damages, damages and expenses for realizing the creditor's right". As a creditor, confirm the scope of the guarantor's guarantee and make a clear agreement to avoid disputes and limit the scope of its guarantee. 2. creditors claim their rights beyond the guarantee period, resulting in falling into the "de-insurance" of the guarantor. Article 692 of the Civil Code provides that "the period of guarantee is the period during which the guarantor is determined to assume the responsibility for the guarantee, without suspension, interruption or extension." Creditors can only claim rights to the guarantor within the period of the guarantee, beyond the period of the guarantee that the "de-insurance". The problem is how to determine the beginning and end of the guarantee period, which is more complex in practice. The Civil Code makes new rules to resolve disputes. The creditor and the guarantor may agree on a guarantee period, but the agreement shall meet the legal requirements. If the agreed guarantee period is earlier than or the same as the performance period of the principal debt, it shall be deemed that there is no agreement; what if there is no agreement? The guarantee period at this time is "six months from the expiration date of the performance period of the principal debt"; what if the performance period of the principal debt is unknown. This rule tells creditors to be clear about the scope of the warranty period and to be legally defined. If there is no agreement, it is necessary to look at the agreement on the period of performance of the main debt in the main contract, and if the main contract is also unclear about the period of performance, evidence of the request for performance of the debt from the debtor should be retained, and the guarantee period should be calculated strictly from that date. If the starting point of the guarantee period is calculated incorrectly, resulting in the passage of the guarantee period, the guarantor is "de-insured"! 3. creditors claim rights should distinguish between general guarantees and joint and several liability guarantees, across the "loss of guaranteed claims" pit. In the case of a general guarantee, the liability for the guarantee is incurred only if the creditor sues and the debtor is still unable to repay the debt. Therefore, the creditor needs to bring an action to the debtor during the guarantee period, and the guarantor can be held liable after obtaining an enforcement decision. Here there is the issue of the overlap between the creditor's statute of limitations and the warranty period, which is generally three years, but the warranty period is generally shorter, even six months when the agreement is unclear. Assuming a six-month guarantee period, the creditor files an action on the seventh month of the expiration of the principal obligation, at which point the failure to assert its rights during the guarantee period results in a "de-insurance". Therefore, the Civil Code clearly states: "If the creditor of a general guarantee fails to bring an action or apply for arbitration against the debtor during the period of the guarantee, the guarantor shall no longer be liable for the guarantee." In this regard, creditors can not only rely on the statute of limitations to look at the problem, must first verify the guarantee period, practice can not be ignored, otherwise lead to the loss of rights all lost! This is different in the case of joint and several liability guarantees, and if the period of guarantee and the statute of limitations are confused, it may be argued that since there is joint and several liability, it can be claimed against anyone. For the statute of limitations it will continue, but the guarantee period will not, because it is a constant period. If the creditor of the joint and several liability guarantee fails to claim the guarantee liability to the guarantor within the period of the guarantee, the creditor loses the guarantee claim and "loses the guarantee". That is to say, joint and several liability guarantee, the creditor must have a separate process of claiming rights to the guarantor, and need to strictly follow the guarantee period rather than the statute of limitations period. 4. creditors should distinguish between general guarantees and joint and several liability guarantees, pay attention to the statute of limitations of the guaranteed debt, and avoid the "statute of limitations" pit. The guarantee period and the statute of limitations are different rules, and the two exist at the same time in the guarantee debt, which is easy to confuse. The guarantee period is the period during which the guarantee creditor can claim the guarantee claim. During this period, the creditor's request to the guarantor to assume the guarantee responsibility is the exercise of the first claim for the guarantee debt. If the guarantor refuses to perform the guarantee debt (especially when the joint and several liability guarantee creditor directly requests to perform the guarantee debt), the creditor has the second claim right to guarantee the creditor's right, which is the limitation of action for the guarantee debt. If the creditor exceeds the limitation period, it will lose the possibility that the right to guarantee the claim will be supported by the court, and the same claim cannot be realized. 5. creditors change the main creditor's debt contract without the consent of the guarantor, resulting in a "de-insurance" pit. The original Security Act provided that if the principal debt contract was changed without the consent of the guarantor, the guarantor would no longer be liable for the guarantee. The Civil Code, on the other hand, repeals this rule and adjusts it to the effect that if the debt is mitigated, the guarantor is still liable for the changed debt, and if the debt is aggravated, the guarantor is still liable for the debt to the original extent and is not liable for the aggravated portion. This change actually implements the principle of contract relativity and implements the basic value of protecting claims, because the main contract change is a change in the contract between creditors and debtors, and the guarantee that the two parties to the contract are creditors and guarantors, naturally can not add new obligations to the guarantor outside the main contract, and the obligation can only be reduced but not increased. It should be noted that if the change is made during the performance of the main contract obligation, does it affect the guarantor? Because the change has no effect on the guarantor without the written consent of the guarantor. The calculation of the guarantee period shall still be based on the original contract before the change. The Civil Code provides that "creditors and debtors change the period of performance of the main creditor's debt contract, without the written consent of the guarantor, the period of guarantee shall not be affected." The word "unaffected" has been confirmed. The guarantee period is still calculated according to the original contract. If the creditor changes the performance period with the debtor, but does not obtain the written consent evidence of the guarantor, it is easy to make mistakes in understanding, which will obviously lead to the wrong calculation of the starting point of the guarantee period and the occurrence of "disinsurance" after the guarantee period has passed. This is another big "pit" that creditors can easily ignore "! The above only lists the various pits that creditors are easy to ignore but lead to "de-insurance", but the legal guarantee rules are very complex and controversial, and creditors, debtors and guarantors use different rules to fight each other within their respective scopes. As a creditor is the main contract and guarantee contract witness, a careless loss, the loss is real money, creditors do need legal professionals to help identify, and make full use of legal rules, in order to complete a "thrilling leap", across the "out of insurance" pit!
2022-09-13
08
2022-09
Recently, the internationally renowned legal media "International Financial Law Review" (IFLR1000) announced the shortlist of the 2022 IFLR1000 China Award. Zhongcheng Qingtai Law Firm won the Best Law Firm of the Year Award for its comprehensive, high-quality and efficient legal services and excellent market performance. Work hard, ingenuity and wisdom. Zhongcheng Qingtai Law Firm will continue to strengthen the professional construction of law firms, improve lawyers' professional capabilities, and continue to upgrade and iterate legal professional services to provide clients with professional, high-quality and efficient legal services. International Financial Law Review (IFLR1000
2022-09-08
08
2022-09
On September 7, the third legal adviser appointment ceremony of Jinan municipal government and the working meeting of government legal advisers were held. Yu Haitian, deputy secretary of the Jinan Municipal CPC Committee and mayor, attended and issued a letter of appointment to the representative of the third legal adviser of the municipal government. Geng Guoyu, director of Zhongcheng Qingtai (Jinan) Law Firm, Yao Huming, Meng Fanhu, Li Heng, Shi Guangbo and Zhu Baoli were employed as legal advisers of Jinan Municipal Government. Yu Haitian pointed out: the universal establishment of a legal adviser system is an important measure to "adhere to the rule of law, rule by law, and administration according to law, and build a country under the rule of law, a government under the rule of law, and a society under the rule of law." it is an important support for comprehensively deepening reform and speeding up the modernization of the government governance system and governance capacity. At the meeting, we listened to the report on the work of the legal advisers of the municipal government and read out the list of the third legal advisers of the municipal government. The third legal adviser of Jinan municipal government has employed 75 people for a period of 3 years. According to the needs of government work and the professional field of consultants, nine advisory groups are divided into government rule of law, land management, investment and financing. The selection of our lawyers is the affirmation of the municipal party committee and the municipal government for Zhongcheng Qingtai Law Firm to serve the government and serve the social and economic development, and it is also the recognition of the comprehensive qualities of the hired lawyers such as professional ethics and professional capabilities. Government legal affairs is the core advantage business of Zhongcheng Qingtai. Over the years, Zhongcheng Qingtai has worked hard to provide professional, high-quality and efficient legal services for party committees and government agencies at all levels. It has served as perennial and special legal consultants for more than 100 party and government agencies, and has accumulated rich performance and experience in the field of government legal affairs. Zhongcheng Qingtai Law firm will always maintain the political nature of being of one heart and one mind with the party, always stand firmly on the fundamental position of people's lawyers for the people, and always adhere to the position of socialist rule of law workers with Chinese characteristics. With all-round, multi-field and high-level legal services, we will unite and contribute to the rule of law and the construction of a government ruled by law!
2022-09-08
08
2022-09
Honor... Zhongcheng Qingtai won the 2022 IFLR1000 Law Firm of the Year Award.
Recently, the internationally renowned legal media "International Financial Law Review" (IFLR1000) announced the shortlist of the 2022 IFLR1000 China Award. Zhongcheng Qingtai Law Firm won the Best Law Firm of the Year Award for its comprehensive, high-quality and efficient legal services and excellent market performance. Work hard, ingenuity and wisdom. Zhongcheng Qingtai Law Firm will continue to strengthen the professional construction of law firms, improve lawyers' professional capabilities, and continue to upgrade and iterate legal professional services to provide clients with professional, high-quality and efficient legal services. The International Financial Law Review (IFLR1000) is an internationally renowned legal media outlet that began publishing in 1990. Every year, it surveys and ranks law firms and lawyers in more than 120 jurisdictions around the world, and publishes lists in the financial and corporate business areas. The IFLR1000 China Award is an award based on research IFLR1000 China. It mainly investigates the legal market in nine regions of China, including: Beijing, Shanghai, Guangdong, Jiangsu, Zhejiang, Shandong, Tianjin, Sichuan and Chongqing. The most innovative transactions and best-performing law firms and lawyers in China, and focuses on law firms and lawyers that have performed well nationwide and in various provinces and cities.
2022-09-08
06
2022-09
Viewpoint... The legal nature and case analysis of the pledge of highway toll rights.
Introduction As a public infrastructure, highways are owned by the state in accordance with the law, and highway toll rights are usually managed by the government as an administrative power. Since the reform and opening up of our country, in order to promote the construction of infrastructure, the construction mode of operating toll roads has gradually developed, that is, the government transfers the franchise rights of toll roads within a certain period of time to non-governmental economic organizations in accordance with the law, and it is responsible for the overall construction, Operation, maintenance and tolls, and then return the management rights after expiration. At present, China is in the development stage of infrastructure construction, all kinds of projects in the construction process, funding is always one of the problems to be solved. In the process of toll road construction, it is a common financing method in practice for toll road project investors to pledge the road toll right to the bank to obtain loan funds. From a legal point of view, what is the legal nature of this right to charge, and what legal risks will exist in practice? The Legal Nature of the Pledge of Highway Toll Right As a kind of right that can bring economic value, highway toll right should belong to the category of right quality right when establishing pledge guarantee. China's laws and regulations identify road toll rights as a type of accounts receivable, and Article 3 of the Uniform Registration of Movable Property and Rights Guarantees provides a general list of various accounts receivable: The accounts receivable referred to in these Measures shall include the following rights: Claims arising from the sale and lease of (I), including the sale of goods, the supply of water, electricity, gas and heating, the licensed use of intellectual property rights, and the lease of movable or immovable property; Creditor's rights arising from the (II)'s provision of services or labor services such as medical treatment, education and tourism; (III) the right to profit from infrastructure and public utility projects such as energy, transportation, water conservancy, environmental protection, and municipal engineering; Claims arising from (IV) provision of loans or other credit activities; (V) other contractual-based claims with monetary payments. It can be seen that the right of highway toll belongs to the content of the third paragraph of the article, in line with the concept of accounts receivable, can be applied to the legal provisions related to accounts receivable, such as the establishment of the right of highway toll pledge needs to be registered. With regard to the realization of the pledge of highway toll rights, the Supreme People's Court on the application of<中华人民共和国民法典>Article 61 of the Interpretation on the Guarantee System also has the following special provisions: The people's court shall support the pledgee's request to give priority to the payment of the funds in the specific account when the parties set up a specific account for the accounts receivable and the legal or agreed reasons for the realization of the pledge occur. The people's court shall support the pledge; the funds in the specific account are not enough to pay off the debts or no specific account has been set up, if the pledgee requests a discount or an auction or sale of the right to the proceeds of the project, etc., and gives priority to the payment of the proceeds, the people's court shall support it in accordance with the law. The right of highway toll is also special compared to the general right of quality. First of all, when the highway toll right is authorized to the highway project investors, the material basis for its existence is that the toll road has not yet been built, and its possible economic value can only be obtained through evaluation and other means, while the actual benefits can only be realized after it is opened to traffic. Secondly, when the highway project investors can start tolling through the highway tolling rights approved by the relevant departments after the completion of the highway, its value is not a one-time realization, but the need to collect tolling fees for passing vehicles within the approved period in order to realize the actual economic value of the highway tolling rights. Therefore, there is a long time difference between the acquisition of highway toll right and the realization of its economic value, which is a kind of expectation right, and there is also the risk that the right of toll can not be obtained or lost in the end. Typical case Treatment of Pledge when Highway Toll Right is Withdrawn [(2020) Chuanminzong No. 1514]] basic case] Linshui Agricultural Bank and Linshui Communications Development Company signed the "Maximum Mortgage Guaranteed Loan Contract", which stipulates that Linshui Communications Development Company needs a long-term loan for the 210 National Highway Project, the loan amount is 30,000,000 yuan, and the 210 line Linshui domestic road toll rights as collateral. In December 2012, the People's Government of Sichuan Province issued the Notice on Canceling the Toll Collection of Secondary Highway for Government Loan Repayment, which included the Dafosi Toll Station of Linshui National Highway 210 in the station publicity list of the notice. In the same month, Linshui Agricultural Bank, Linshui Communications Development Company and Linshui County Finance Bureau signed Linshui County Agreement on Cancellation of Secondary Highway Toll Repayment (Borrowing) of Government Loan Repayment, which specifies that after the Ministry of Finance subsidy funds and provincial assistance funds are transferred to the account of the Finance Bureau, Linshui Communications Development Company shall apply for appropriation, and Linshui County Finance Bureau shall allocate and repay the debts of Linshui Agricultural Bank within three months according to the proportion of the total funds. After the bad claim is transferred to a third party, the third party to the court to claim the right of priority compensation for the road toll. court view] The right to highway toll collection may be pledged in accordance with the law. Linshui Communications Development Company pledged the toll right of National Highway 210 to Linshui Agricultural Bank due to the need of the construction project, and registered the pledge in accordance with the law, the pledge of both parties shall be valid in accordance with the law, and the pledgee shall have the priority right to receive compensation for the pledge. Article 73 of the "the People's Republic of China Guarantee Law" "The right of pledge shall be extinguished due to the loss of the pledge. The compensation for the loss shall be treated as pledged property", in this case, the pledge shall be extinguished due to the loss of the toll collection right due to the cancellation of the government's loan repayment secondary road tolls, but the state shall be treated as pledged property due to the cancellation of the toll collection right by the central and provincial people's governments. comment] When the highway toll right is recovered, the right of quality is eliminated, but its effect can be extended to the subsidy arising from the recovery of the toll right, and its legal principle lies in the property subrogation of the security right. According to article 390 of the Civil Code, during the period of security, if the secured property is damaged, lost or expropriated, the security interest holder may give priority to the insurance, compensation or compensation obtained. Before the highway project was completed and opened to traffic, the highway toll right was recovered by the government before it was obtained. At this time, the toll right as a quality lost the possibility of generating economic value, so the toll right pledge lost its effect when the toll right was recovered. At this time, the built part of the highway does not produce use value, can not be counted as a real thing, but as a part of the highway, its value is only the value of the project that has been built. When the government takes back the highway toll right, it shall compensate the other party for the project funds according to the actual investment of the completed part. For this part of the compensation, it can be considered that in the ordinary movable property pledge, if the pledge has received compensation, insurance or compensation for loss, damage or expropriation, the compensation as a subrogation shall be the effect of the right of quality. </中华人民共和国民法典>
2022-09-06
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
