25
2022-08
On the evening of August 24, 2022, the basketball team of Zhongcheng Qingtai Law Firm and the basketball team of Shandong Provincial Department of Finance kicked off a friendly match. In the spirit of "friendship first, competition second", the contestants of both sides sweat and communicate with each other. On the basketball court, everyone sweated like rain, fought hard, and carried forward a good team spirit and a good style of daring to fight. The players of both sides actively attacked and defended, tacit cooperation in tactical application, and the atmosphere on the scene became more and more enthusiastic. Every goal was accompanied by the cheers of the cheerleaders off the court, which fully achieved the goal of strengthening the body, boosting the spirit and enhancing friendship. Through this basketball match, the players of both sides put down the fatigue of work, conveyed their love for sports and life with passion and sweat, enjoyed the fun brought by basketball, and enriched the amateur cultural and sports life of the two units. It is hoped that the two teams will collide with new "sparks" in the communication in the future ". Zhongcheng Qingtai has been practicing the concept of "serious work and healthy life", carrying out various sports to enrich the amateur life of lawyers, and lawyers devote themselves to work with strong physique and full mental state.
2022-08-25
24
2022-08
Article 28 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court in the execution of pecuniary claims, the buyer raises an objection to the real estate registered in the name of the person subject to execution, and the following circumstances are met and its rights can be The people's court shall support the exclusion of enforcement: The (I) has signed a legal and effective written sales contract prior to the seizure by the people's court; The (II) has lawfully taken possession of the immovable property before the seizure by the people's court; The (III) has paid the whole price, or has paid part of the price in accordance with the contract and delivered the remaining price for execution in accordance with the requirements of the people's court; The (IV) is not due to the buyer's own reasons for not going through the transfer registration. How does the 1. determine the "seizure time" in "a legally valid written sales contract has been signed before the court seizure"? In (2021) the case of the second instance of the Supreme Law Minzong No. 550, Cheng Yilun and Shenyang Rural Commercial Bank Co., Ltd. Dadong Sub-branch The appellant (plaintiff in the original trial) Cheng Yilun believed that the court of first instance sealed up the house involved in the case for the first time on October 23, 2014, and then sealed up the house involved in the case again on November 15, 2016 due to the expiration of the seal-up period. Therefore, the effect of the first seal-up was eliminated, and the effect of the seal-up of the house involved in the case began on November 15, 2016. The "Commercial Housing Sales Contract" involved in the case was signed on October 31, 2014. After the first seizure expired and before the seizure again, it should be determined that a legal and effective written sales contract relationship had been formed before the seizure. The Supreme People's Court held that the time for the first seizure of the house involved in the case by the People's Court was October 23, 2014. Cheng Yilun advocated that the time for the seizure of the house involved in the case should be November 15, 2016 without facts and legal basis, while Cheng Yilun and Hongyuan Company signed the "Commercial Housing Sales Contract" on October 31, 2014, later than the time for the first seizure of the house involved in the case, therefore, Cheng Yilun's claim does not conform to the provisions of a legally valid written sales contract signed before the people's court seized it. Therefore, Cheng Yilun's claim does not conform to the circumstances stipulated in Article 29 of the Provisions on Objection and Reconsideration of Enforcement, and the court of first instance does not support Cheng Yilun's claim that he enjoys civil rights and interests excluded from enforcement, which is not improper. Therefore, according to the Supreme Court's decision, the "seizure time" in "a legally valid written sales contract has been signed before the court seizure" should be understood as the time of the first seizure of the house involved. Does the seizure in Article 28 of the 2. Provisions on Objection and Reconsideration of Execution only refer to the seizure in execution? Does it include the preservation seizure in litigation? Does it include the waiting seizure? In the retrial case of (2020) Xinmin Zhong No. 149 (2021) Supreme Famin Shen No. 1519 Hu Muxiang and Guoyao Xinjiang Korla Pharmaceutical Co., Ltd. and other applicants for execution objection, Hu Muxiang (defendant of first instance, appellee of second instance and outsider of execution) believes that: (1) property preservation in the lawsuit is a temporary measure, the disputed creditor's rights have not yet been determined and do not naturally enter the execution procedure. The action of the execution objection is for the seizure measures that occurred in the execution procedure, does not involve litigation preservation, and determines the time of the seizure of the house involved in the case shall be subject to the time when the execution ruling is issued. (II) new evidence, the People's Court of Yuyao City, Zhejiang Province (2015) Yong Yu Simin Chuzi No. 12-1 Civil Ruling Letter and the Notice of Assistance in Execution can prove that the house involved in the case was waiting for seizure when it was preserved on March 3, 2015. At this time, the preservation did not take effect, and the second instance determined that the seizure preservation time was wrong on March 3, 2015. The Supreme Court held that Article 28 of the Provisions on Objection to Execution and Reconsideration does not distinguish whether the seizure is a seizure in execution. Whether it is a preservation seizure in litigation or a seizure in execution, it has the effect of publicity, and its effect is not only extended to the seized person, but also to a third party. Moreover, Article 4 of the Provisions of the Supreme People's Court on Seizure, Seizure and Freezing of Property in Civil Execution of the People's Court stipulates that "if property preservation measures are taken before litigation, in litigation and in arbitration, they will be automatically converted into seizure, seizure and freezing measures in execution after entering the execution procedure", the seizure in litigation preservation will be automatically converted into seizure in execution after entering the execution procedure. Hu Muxiang believes that the seizure in Article 28 of the Provisions on Objection to Implementation and Reconsideration is limited to the seizure in the execution procedure, and his application for retrial cannot be established because the law is unfounded, and this court will not support it. During the retrial review, Hu Muxiang applied for retrial with the Civil Ruling No. 12-1 of the People's Court of Yuyao City, Zhejiang Province (2015) Yong Yu Simin Chuzi and the Notice of Assistance in Execution as new evidence, and believed that the seizure of the house involved in the case was waiting for seizure. However, the above documents did not clearly record that the seized house included the house involved in the case. Even if the seizure of the house involved in the case is a waiting seizure, the waiting seizure is an enforcement measure implemented by the people's court based on the effective enforcement ruling. It does not have legal effect before the seizure effect is automatically produced in accordance with the law, but has the legal effect of pre-seizure. Hu Muxiang submitted new evidence in his retrial application to prove that he received the notice of occupancy of the house involved in the case in January 2017 and occupied the house involved in the case. Even if the evidence can prove his claim, because Hu Muxiang's possession of the house involved in the case occurred after the seizure of the house involved in the case, the original judgment found that Hu Muxiang did not comply with the "legal possession of the real estate before the seizure by the people's court" as stipulated in the second paragraph of Article 28 of the "Regulations on Objection and Reconsideration", and it was not improper to determine the facts and apply the law. Hu Muxiang's application for retrial with new evidence sufficient to overturn the original judgment cannot be established, and the court will not support it. Therefore, according to the decision of the Supreme Court, the seizure in Article 28 of the Provisions on Objection and Reconsideration of Enforcement is not limited to the seizure in the enforcement procedure, but also includes the preservation seizure and post-turn seizure in litigation.
2022-08-24
23
2022-08
From August 19 to 20, the 7th Shandong Law Firm Construction Forum was held in Jinan. The forum was hosted by Shandong Lawyers Association, organized by Shandong Lawyers Association Law Firm Management and Steering Committee, Jinan Lawyers Association, and co-organized by Shandong Zhongcheng Qingtai Law Firm. Based on the current economic and social development situation at home and abroad and the current situation of the legal service industry, the forum, with the theme of "keeping and changing small and medium-sized law firms in the post-epidemic era", was divided into two sections: "Round Table Night Talk + Main Forum". More than 20 experts, scholars and law firm directors were invited to share the development situation of the lawyer industry from three units: industry observation, law firm operation and professional upgrading.
2022-08-23
23
2022-08
From August 19 to 20, the 7th Shandong Law Firm Construction Forum was held in Jinan. The forum was hosted by Shandong Lawyers Association, organized by Shandong Lawyers Association Law Firm Management and Steering Committee, Jinan Lawyers Association, and co-organized by Shandong Zhongcheng Qingtai Law Firm. Based on the current economic and social development situation at home and abroad and the current situation of the legal service industry, the forum is divided into two sections: "Round Table Night Talk + Main Forum" with the theme of "Keeping and Changing Small and Medium-sized Law Firms in the Post-epidemic Era", inviting more than 20 experts, scholars and law firm directors from three modules: industry observation, law firm operation and professional upgrading, share the development of the lawyer industry situation, law firm management and operation, professional upgrade, team operation and other exciting content. The forum adopts a combination of online and offline methods. NetEase News, CCTV Frequency, iQiyi and other network platforms broadcast live simultaneously, and more than 100000 people watched it online. Geng Guoyu, president of Jinan Lawyers Association and director of Zhongcheng Qingtai Jinan Institute, shared the theme of "New Trends in the Development of Lawyers in the Double Cycle Background. Director Geng Guoyu said that the lawyer industry has the following trends in the future: to achieve regional coordination and service regional coordination, and to promote regional coordinated development from the perspective of the rule of law business environment; the development trend of industrialization, and is guided by demand to promote the industrialization of lawyers Or the development trend of industrialization; the trend of normalization of foreign-related services and the trend of digital development; law firms must grasp the trend and stand out from the changes. Meng Fanhu, a member of the Criminal Committee of the National Lawyers Association, the deputy director of the Criminal Committee of Shandong Lawyers Association, and the senior partner of Zhongcheng Qingtai Jinan Institute, participated in the special speech of "Discussion on the Construction of Criminal Specialization of Comprehensive Law Firms". Meng Fanhu, the director, combined with the development of Zhongcheng Qingtai Criminal Section, discussed the problem of the professional development of comprehensive law firms, from the perspective of law firm system support, creating professional leaders, focusing on talent selection, personalized labeling, normalization of business training, business cooperation and expansion, etc., it won unanimous praise from the guests.
2022-08-23
20
2022-08
On the morning of August 19, 2022, under the auspices of the People's Court of Dongming County, Shandong Province, CITIC Guoan Chemical Co., Ltd., Dongming CITIC Guoan Ruihua New Materials Co., Ltd., Dongming Aoke Fine Chemical Co., Ltd., Shandong Zhaobang Fine Chemical Co., Ltd., Dongming North China Petrochemical Sales Co., Ltd., Jiangsu CITIC Guoan New Materials Co., Ltd., Shanghai CITIC Guoan Chemical Co., Ltd., Shanghai Yunhui Supply Chain Co., Ltd., Shanghai Zhaobang Petrochemical Co., Ltd., Shanghai CITIC Guoan Chemical Technology R & D Co., Ltd., Shanghai Fangyaohui Real Estate Co., Ltd. and other 11 companies (hereinafter referred to as "CITIC Guoan Chemical Co., Ltd. and other 11 companies") merger and reorganization of the first creditor meeting was successfully held in an online manner. On March 15, 2022, Dongming County People's Court issued (2022) Lu 1728 Paoshen No. 1 Civil Ruling, ruling to accept Heze Shirong Trading Co., Ltd.'s application for reorganization of CITIC Guoan Chemical Co., Ltd., and on March 24, 2022 (2022) Lu 1728 Po No. 1 decision was issued, appointing Shandong Zhongcheng Qingtai (Jinan) Law Firm as the manager of CITIC Guoan Chemical Co., Ltd. On June 18, 2022, the Dongming County People's Court issued (2022) Lu 1728 Po No. 1 Civil Ruling, ruling on the substantive merger and reorganization of 11 companies including CITIC Guoan Chemical Co., Ltd., and issued (2022) Lu 1728 Po No. 1 decision, appointing the manager of CITIC Guoan Chemical Co., Ltd. as the manager of the substantive merger and reorganization of 11 companies including CITIC Guoan Chemical Co., Ltd. CITIC Guoan Chemical Co., Ltd. and other eleven companies involved in Shandong, Jiangsu, Shanghai three regions, the work area span, coupled with the impact of epidemic prevention and control, to the management of the work of great challenges. The accounts of the eleven companies are unclear, the first and second phases of the project are completely suspended, and the third phase of the project is under construction. Jiangsu Guoan Company is facing demolition due to environmental governance, and property verification is difficult. After the manager accepts the appointment, he quickly forms a team according to the characteristics of the project, formulates a detailed work plan and work plan, performs his duties diligently and efficiently, and fully performs the duties of the manager. Under the guidance of the court, the administrator coordinates the conflicts of interest of all parties in accordance with the law, actively resolves case disputes, properly handles historical issues, overcomes difficulties, and works together to advance the progress of the case. Representatives of administrators, audit institutions, evaluation institutions, debtor representatives, employee representatives, etc. attended the meeting on site, and creditors who have declared their claims attended the meeting through the National Enterprise Bankruptcy Reorganization Case Information Network. At the meeting, the manager made a "phased work report on the performance of duties" and "a report on submitting to the creditors' meeting to verify claims", the audit institution made a "work note on audit", and the evaluation institution made a "work note on evaluation". The manager's remuneration plan and property management plan were submitted to the creditors' meeting for voting, and the agenda of the meeting was successfully completed. The follow-up manager will continue to adhere to the principle of "according to law, standardization, efficiency and fairness", scrupulously perform their duties, overcome difficulties, actively carry out work under the guidance and supervision of the court, and strive to promote the smooth progress of the case.
2022-08-20
16
2022-08
Introduction: In this paper, under the background of civil cases of securities misrepresentation, this paper studies the criteria for determining the material nature of information in the information disclosure system. The author thinks that its information importance is the cornerstone of the information disclosure system and the scope of compensation in civil cases of securities misrepresentation. The author thinks that the criterion of information materiality should be measured by the price fluctuation in the securities market. The essence of the securities market is an information intersection, all kinds of information is full of it, the timely, symmetrical, complete and true information is the basis for investors to invest, but also the key to maintain the smooth operation of the securities market. Investors in the securities market, as passive recipients of information, have led to a weak position relative to listed companies. Therefore, it is particularly important to put the information under supervision and provide for the relevant disclosure system. In December 2002, the Supreme People's Court promulgated the "Several Provisions of the Supreme People's Court on the Trial of Civil Compensation Cases Caused by False Statements in the Securities Market" (hereinafter referred to as "Several Provisions"), which marked the formal adoption of civil compensation in China to force listed companies to have good faith experience and strictly abide by the information disclosure system. A "false statement" in the Black's Law Dictionary means "the act of a person expressing to another person, verbally or otherwise, that the situation is inconsistent with the true facts; an untrue expression of the facts; an incorrect or false statement that, if accepted by another person, would lead to an understanding of a particular situation that deviates from the true facts." The "false statement behavior" in the securities market is a normative legal concept set for the relevant listed companies to fulfill the information disclosure obligations stipulated in laws and regulations and other documents. That is, Article 17 of the "Several Provisions" defines the false statement of securities as "the false statement of the securities market", which refers to the information disclosure obligor's violation of the securities laws and regulations, In the process of securities issuance or trading, make false records and misleading statements against the truth of major events, or material omissions or improper disclosure of information at the time of disclosure." Among them, the law emphasizes that major matters should be comprehensively determined as significant in combination with articles 59, 60, 61, 62, 72 and other relevant provisions of the Securities Law. In addition, this article defines the above four behaviors. First, false records simply refer to making something out of nothing; second, misleading statements refer to the release of wrong information to interfere with normal information and affect investors' judgment; third, major omissions refer to the lack of disclosure without disclosure; fourth, improper disclosure is actually a bottom-up clause, which mainly includes two types, one is not disclosed in a legal manner, the other is the wrong time period disclosure. Thus, the Certain Provisions provide for four cases of misrepresentation in the securities market, which we can summarize as fabrication, omission, misleading disclosure and inappropriate disclosure. However, these four acts have a common premise, or for those with disclosure obligations, the need to disclose information involving material matters in accordance with legal procedures in a timely and compliant manner, so it can be understood that information containing material events of the obligor is significant, and such information is the cornerstone of the information disclosure system. As mentioned above, the essence of the securities market is an information meeting place, and all kinds of information are full of it. If the listed company discloses all the information of the company, this practice is obviously unrealistic, which violates the original intention of the legislation on the information disclosure system. It can not achieve the role of standardizing corporate behavior and will cause a huge burden to the company, thus affecting the normal operation of the company. From the investor's point of view, the aggregation of information will also make it difficult for investors to identify effective information, thus missing the best time to invest, resulting in the loss of vitality of the securities market, so it is particularly important to disclose what information needs to be disclosed. So what information needs to be disclosed, the core is to combine the problems in practice and the legislative intent of the information disclosure system to specify a standard to distinguish all information. According to Article 17 of the "Several Provisions", "For major events, it shall be determined in conjunction with Articles 59, 60, 61, 62, 72 and related provisions of the Securities Law." As well as the Supreme People's Court on a number of specific issues in the current commercial trial work, the emphasis on the entity trial to correctly understand the constituent elements of civil liability for securities infringement. It is necessary to study the significance of securities cases, including behavior, fault, result and causality, with the constituent elements of traditional civil tort cases. Wherein, it is clearly stated that "it refers to the possible impact of the illegal act on the investor's decision, and its main measurement index can be judged by the impact of the illegal act on the price and volume of securities trading. The significance and transaction causality are institutional arrangements to limit or reduce the liability of the actor. When the tort is not material or the tort is not causally related to the investor's transaction decision, the actor shall not be liable for compensation." The author notes that in Article 17 of the Certain Provisions, it is mentioned that it should be determined in combination with the relevant provisions of the Securities Law. Can such a statement be understood as that the relevant provisions of the Securities Law are only used as a reference, and the concept of material information is actually more extensive. In addition, the Supreme People's Court on a number of specific issues in the current commercial trial work is also too broad a statement that the importance of the decision to be judged by the ability to influence investors. The author believes that the key to the information disclosure system of the securities market lies in the identification of the importance of information. The reason why the relevant laws and regulations are relatively broad, in addition to the abstract characteristics of the material information itself, the more important influence investors make decisions on the basis of reference The items are too extensive, and the angles and methods that investors consider are also very different, so it is difficult to standardize the importance. The criteria for determining the importance of information are so abstract, so how do foreign countries do it, or in other words, can we learn from the standards of other countries to find commonalities and provide us with ideas? When it comes to the identification of major issues in the U.S. securities market, it is bound to mention its TSC case and Basic case, the specific facts of the two cases I will not introduce in detail here, but based on these two cases there are two criteria for identification. That is, the TSC standard, also known as "investor decision-making", means that the importance depends on the rational investor being influenced by the information. The Basic standard, on the other hand, raises the threshold for identification on the basis of the TSC, where rational investors are judged by a significant image of information against existing information. Similar to the United States, Japan is also Japan. Article 5, paragraph 1, of the Financial Commodities Exchange Law of Japan stipulates that "material nature may have an important impact on investors' judgment." There is a significant difference with the above two national identification standards, which is represented by the United Kingdom and focuses on respecting the opinions of professional consultants. Combined with other national identification criteria, although there are many differences, but there is a more unified view of the impact on investment decisions. At present, there are also differences in the material standards of information in China's academic circles, which are summarized well in the book "Research on the Rules of Civil Cases of Securities Misrepresentation" and are mainly divided into three types: the first type affects the decision-making standards of investors, and false information obviously affects the reference information that rational investors originally rely on. The typical representative is "Guidelines for the Content and Format of Information Disclosure by Companies Issuing Securities to the Public No. 1-Prospectus (Revised in 2015)". The second type is the price standard, that is, whether the information has a great impact on the price of securities, which mainly comes from the occurrence of major events that may have a greater impact on the stock trading price of listed companies as emphasized in Article 67 of the Securities Law. When investors have not yet learned about it, listed companies should immediately attach reporting and publicity obligations about the major event; the third is the standard of adverse effects on issuers, that is, whether the matters involved in the information have a material adverse effect on the issuer's operation, financial and other related matters, to determine whether it is material. A typical example is that if the relevant risk factors may have a serious impact on the issuer's production and operation status, financial position and profitability only, a "material matter alert" should be made in the relevant risk alert rules of the prospectus and prospectus ". In addition to the above three views, some scholars have proposed the "rational investor standard", "expert standard" and so on. Combining the views of foreign and Chinese academic circles, we can draw the following conclusions: 1. the current standards for identifying the significance of the information disclosure system in the securities market have not been unified; 2., although the views are not unified, the mainstream views are relatively concentrated. The author thinks that the standard of determination of material importance should be considered from many aspects, but this paper studies the civil compensation of securities misrepresentation as the background. Just as the "Supreme People's Court on Several Specific Issues in Current Commercial Trial Work" emphasizes that the essence of securities misrepresentation is an infringement case. It is an undue bubble generated by the listed company's misrepresentation of material information that causes the stock to be generated for a period of time. The bubble burst due to the disclosure of the facts, resulting in the decline of the stock price and the loss of investors. Therefore, in the investor's claim litigation, there is the burden of proof for the listed company's misrepresentation of material information, even if the CSRC's "political penalty decision" as evidence, but in the entire securities market investors are always in a weak position. Another issue that cannot be ignored in securities misrepresentation cases is time, as the time span from the date of presentation to the date of disclosure to the date of reference is often very long in practice, and the confirmation of such time through material matters can lead to a wide variation in the scope of compensation. As a listed company, it should operate in good faith and truthfully disclose information to provide investors with investment reference. It is obviously unreasonable for investors to pay for the company's own wrong behavior or let investors share the losses. Therefore, the author believes that there should be a certain tendency for investors to confirm the criteria for determining the significance and should not raise the threshold, so as to balance the status of both sides and eliminate the market impact as soon as possible. But the tendency is not one-sided support investors, so it is not conducive to market stability. The author thinks that the criteria for the determination of significance should be considered in combination with other factors, one of which is the definition of misrepresentation, or model. From the definition of the misrepresentation infringement case combined with the real case in practice, the author understands that the scope of compensation is mainly the closed area formed by the real trend of the stock price and the inflated stock price trend, and this closed area is actually the bubble mentioned above. Based on this understanding, it is not difficult to model the case of securities misrepresentation infringement. The author thinks that the ideal model closing point is the false statement date and the reference date. Therefore, it can be found from the model that the criteria for determining the importance of information can be directly reflected in the model, and the model is relatively stable, and the model is drawn according to the trend of the stock price, so the author thinks that the criteria for determining the importance of information should be measured by the change of stock price.
2022-08-16
12
2022-08
Brief description of case Company A has a batch of aluminum ingots that need to be sold to Company B by sea. Company A has signed the Supply Contract with Company B and the Shipping Contract with Company C. Company A, as the insured, is insured by Company C and Insurance Company D. After the ship ran aground and sank in the sea during transportation, all aluminum ingots were damaged and soaked in the sea. Before the accident, Company B had already paid Company A the full price and transportation expenses of the aluminum ingots and entrusted Company A to handle the transportation. Company A has also issued a special VAT invoice to Company B. focus of controversy Company A, as the insured, negotiates compensation with Insurance Company D. When both parties reach an agreement on compensation in advance, there are disputes over the amount of compensation, mainly in the following two aspects: How to calculate the insurance value of the goods when the insurance value is not clearly agreed in the (I) insurance contract; (II) if compensation for the VAT portion should be included in the total insured amount. Legal provisions and views of lawyers (I) on the determination of the insured value of the goods. China's Insurance Law and Maritime Law have provisions on the value of cargo insurance and the amount of insurance. Article 55 of the Insurance Law stipulates: "If the insured and the insurer agree on the insurance value of the subject matter of the insurance and state it in the contract, the agreed insurance value shall be the standard of compensation calculation in the event of loss of the subject matter of the insurance. If the insured and the insurer have not agreed on the insured value of the subject matter of the insurance, the actual value of the subject matter of the insurance at the time of the insurance accident shall be the standard for the calculation of compensation in the event of loss of the subject matter of the insurance. The insured amount shall not exceed the insured value. If the insured value is exceeded, the excess shall be invalid and the insurer shall refund the corresponding insurance premium. ......" Article 219 of the Maritime Law stipulates: "The insured value of the subject matter of insurance shall be agreed between the insurer and the insured. If the insurer and the insured have not agreed on the insurance value, the insurance value shall be calculated in accordance with the following provisions: ...... The insurance value of the (II) goods is the sum of the invoice price of the goods at the place of shipment at the beginning of the insurance liability or the actual value of the non-trade goods at the place of shipment and the freight and insurance premiums;...... ". Article 220 stipulates: "The insured amount shall be agreed between the insurer and the insured. The insured amount shall not exceed the insured value; if it exceeds the insured value, the excess shall be null and void." As can be seen from the above-mentioned legal provisions, the value of insurance is agreed from the agreement. In the case where the insurance contract only stipulates the amount of insurance and does not agree on the value of the insurance. First of all, it should be based on Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Maritime Insurance Disputes: "The trial of maritime insurance contract disputes shall be governed by the provisions of the Maritime Law; if the Maritime Law does not provide for it, the relevant provisions of the Insurance Law shall apply; if the Maritime Law and the Insurance Law do not provide for it, the provisions of the Civil Code and other relevant laws shall apply". Priority shall be given to the relevant provisions of the Maritime Law on the insured value of the goods, I .e. the invoice price of the goods at the place of shipment at the beginning of the insurance liability. Specifically in this case, there is no agreement on the separation of price and tax in the Insurance Contract, and the policyholder C Shipping Company is insured at the invoice price including tax and should be paid in full. In addition, from the point of view of the transaction process, the Supply Contract stipulates that the seller will handle the carriage on behalf of the buyer, so that when the seller completes the consignment procedure (I. e. the goods are delivered to the carrier), the ownership of the subject matter has been transferred and the value of the subject matter has been fixed. Subsequent parties A, C and D agree on the subject matter of insurance based on the Insurance Contract, the insured value of which shall also be the total price of the goods including tax. (II) whether the VAT component should be included in the total insured amount 1. Analysis from the perspective of tax law The sales between Company A and Company B have been completed and a special VAT invoice has been issued for the other party. If Insurance Company D does not bear the VAT amount, Company A needs to issue a red-letter special VAT invoice again. However, Article 1 of the Announcement of the State Administration of Taxation on Issues Related to the Issuance of Red-letter VAT Invoices stipulates that the issuance of red-letter special VAT invoices is aimed at the case of incorrect invoicing or return, and A company in the sales behavior has been completed and the goods sink in the sea, the actual operation, the tax authorities have not allowed the seller to issue a red letter VAT special invoice. Company B has become the owner of the goods from the time of payment and delivery to the carrier, but it is not the insured. Article 237 of the Maritime Law stipulates: "After the loss caused by an insurance accident, the insurer shall pay insurance compensation to the insured in a timely manner", at which time Company A has the right to claim compensation from the insurer in accordance with the insurance contract and the above-mentioned legal provisions, and can also be regarded as claiming the value of the loss on behalf of Company B. Since the purchase price paid by Company B in the sales contract is the full amount including tax, Insurance Company D should also pay the total amount of insurance including tax at this time. If Insurance Company D claims that Company B can avoid losses by deducting tax after receiving a special VAT invoice, our lawyers believe that it is not feasible from a tax point of view. Because from the analysis of the principle of taxation, value-added tax is a transfer tax levied on the new value or added value of goods in many links of commodity production, circulation and labor services. In the case of the goods have been damaged, the goods in question can no longer be circulated downstream, the VAT chain has been broken, at this time the VAT will be substantially converted into the final cost of the goods borne by Company B, so it is reasonable for Insurance Company D to pay the full VAT. At the same time, according to the provisions of paragraph (II) of Article 10 of the interim regulations on value-added tax in the People's Republic of China, the input tax shall not be deducted from the output tax for the purchase of goods with abnormal losses. According to Article 24 of the Detailed Rules for the Implementation of the Provisional Regulations on Value-Added Tax, abnormal losses refer to losses caused by theft, loss, mildew and deterioration due to poor management. The above provisions are listed. Although the sinking of the goods in question into the sea does not belong to the listed situation and can be deducted from VAT on the surface, the main premise for the application of the above provisions is that the goods are purchased in substance, and the purchased goods not only have legal ownership, but also need to exist and be managed. Otherwise, there is no basis and premise for "mismanagement" in the above provisions. Since the goods involved have been lost, the special VAT invoice received by Company B is not allowed to be deducted according to the tax law, so it is reasonable for Insurance Company D to pay the full amount of VAT. 2, from the perspective of civil and commercial law analysis. Company A has three legal relationships in this transaction, one is the "supply contract" relationship with Company B, the other is the "shipping contract" relationship with Company C shipping company (Company A handles shipping on behalf of Company B), and the third is the "insurance contract" relationship with Insurance Company D. (1) Supply contract relationship Article 224 of the Civil Code states: "The creation and transfer of a right in rem in movable property shall take effect upon delivery, unless otherwise provided by law." The Contract of Supply stipulates that the seller handles the carriage on behalf of the buyer, so that when the seller completes the consignment formalities (I. e. to the carrier), the ownership of the subject matter has been transferred. The seller's sales link has been completed at this time, so the VAT amount should be paid as part of the insurance value. (2) Maritime contractual relationship After the completion of the transaction between Company A and Company B, Company A has the obligation to handle the transportation on the basis of the Supply Contract, which is already another legal relationship. The value of the goods transported by Company A is the total purchase price including tax (at this time, the price and tax are combined), and Company B also purchases the goods including tax. From this point of view, D insurance company should also pay in full. (3) Insurance contract relationship Company A entered into an insurance contract with Insurance Company D based on the need to ship the goods, and paid the full premium for the total insured amount based on the total price of the goods including tax. The aim is to be able to get the insurance company's full payout in the event of an insurance event. Therefore, in the event that the insured amount does not exceed the insured value, the D insurance company is obliged to perform the full payment obligation in accordance with the insured amount agreed with the bidder and the insured. Conclusion In general insurance claims, if the insured and the insurer have not agreed on the insured value of the subject matter of the insurance, the actual value of the subject matter of the insurance at the time of the insurance accident shall be the standard of compensation calculation. In the case of maritime insurance, the relevant provisions of Articles 219 and 220 of the Maritime Law shall be applied in preference to the calculation of the insured value of the goods in the light of the actual circumstances of the loss of the goods. Regarding the question of whether VAT should be compensated, our lawyers believe that under the premise that the transaction link has been completed and the insurance contract does not stipulate the separation of price and tax to exempt part of the compensation for VAT on the loss of goods, the goods cannot be transferred downstream due to the loss of goods, and the purchaser becomes the final consumer at this time and cannot deduct this part of the tax, and the insurance company shall pay full compensation to fill in the loss.
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The employment agreement is an employment intention contract for graduates to work in the employer after graduation, and its nature is an appointment contract; the liquidated damages clause stipulated in the employment agreement is legal and valid; if the agreed liquidated damages are excessively higher than the losses caused, the graduate may request the arbitration institution Or the people's court to reduce it. 1 The legal nature of the employment agreement The employment agreement (also known as the "tripartite agreement") is a written agreement signed by fresh graduates of ordinary higher education institutions, recruiters and graduate institutions. As for the nature of the employment agreement, there are different views in the theoretical circles and different understandings in judicial practice. 1, civil contract said: from the employment agreement signed time, content and the legal status of the parties reflected in the employment agreement, the employment agreement is a general civil contract. (Relevant case: Cheng Li v. BYD Co., Ltd. and others for the return of liquidated damages) 2. The appointment contract said: The employment agreement is a preliminary agreement between the graduates, the school and the employing unit on the graduates' future employment intention. It is the employment of the graduates with time limit and conditions attached to the employing unit (relevant cases: Yu Sulan and Fujian Electric Power Co., Ltd. applied for labor dispute retrial) 3. The labor contract says: The employment agreement is a special form of the labor contract. The nature of the employment agreement and the labor contract is consistent, and its subject meaning and legal basis are also consistent. The "Labor Contract Law" should be applied. (Relevant case: Li Moumou v. Tianjin College Personnel Dispute) 4. Non-contract theory: The employment agreement is a product of the transition period of the employment market with Chinese characteristics. In nature, it is neither an agreement in public law, nor a contract in private law, nor a labor contract. Strictly speaking, this kind of tripartite agreement It adds the content of public power intervention on the basis of "private" autonomy. This paper holds that from the point of view of the signing process of the employment agreement, the function of the employment agreement lies in the proof role of the school reporting employment plan, the employer's declaration of entry indicators, etc., with a certain administrative function color, does not have the equality of the subject and the freedom of will, and runs counter to the basic spirit of civil contract. From the content of the agreement, most of the employment agreements in colleges and universities are relatively simple and general, and it is true that the legal provisions of the Labor Contract Law are necessary, so it is more appropriate to adopt the "appointment contract theory" in its legal nature. 2 The validity of the penalty clause in the employment agreement. 1. The liquidated damages clause is legal and valid. The reason why the employment agreement can agree on liquidated damages is that both employers and graduates spend a lot of costs in recruitment or job hunting. This reduces the utility of a tripartite employment agreement if one party defaults recklessly without penalty. The liability for breach of contract stipulated in the employment agreement is not limited by Article 25 of the the People's Republic of China Labor Contract Law. As long as there is no invalid situation in the Civil Code, that is, the parties' full capacity for civil conduct means true and the content does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs, the liability clause for breach of contract should be valid. Article 495, paragraph 2, of the Civil Code stipulates that "if one of the parties fails to perform the obligation to conclude the contract under the appointment contract, the other party may request it to bear the liability for breach of the appointment contract". The employment agreement has legal effect on both the graduate and the employer. Regardless of any party's breach of contract, it shall be liable for breach of contract. 2. The liquidated damages clause follows the following principles: One is the principle of fairness. The Civil Code provides for the principle of fairness in civil contracts. However, in practice, many employers take advantage of their advantageous position in recruitment to only agree that graduates violate or terminate the liability for breach of contract of the tripartite employment agreement, and do not agree on the liability for breach of contract of the employer, which is obviously unfair. The second is the principle that liquidated damages are equivalent to losses. Article 584 of the Civil Code stipulates: "If one of the parties fails to perform its contractual obligations or the performance of its contractual obligations does not comply with the agreement, causing losses to the other party, the amount of compensation for the loss shall be equivalent to the losses caused by the breach of contract, including the benefits that can be obtained after the performance of the contract, However, it shall not exceed the losses that may be caused by the breach of contract that were foreseen or should be foreseen when the party entered into the contract." Article 585 of the law further stipulates: "if the agreed liquidated damages are lower than the losses caused, the parties may request the people's court or arbitration institution to increase them; if the agreed liquidated damages are excessively higher than the losses caused, the parties may request the people's court or arbitration institution to reduce them appropriately." According to the above provisions, the standard of liquidated damages should be determined according to the loss caused by one party's breach of contract to the other party. If it is abnormally high or abnormally low, adjustments can be made after disputes arise. How to determine that the liquidated damages are excessively higher than the loss? "If the liquidated damages agreed by the parties exceed the 30% of the loss caused, it can generally be determined as 'excessively higher than the loss caused '". 3 Reduction of liquidated damages provisions in employment agreements The employer will take into account the deterrent effect of the clause when setting the liability clause for breach of contract, so it will set a higher standard of liquidated damages, but it is still possible for the adjudicator to adjust the liquidated damages according to the principle of fairness, taking into account the consequences of the graduate's breach of contract, the employer's loss, the economic level, the post salary and other factors. Reference Case:(2021) Beijing 0102 Minchu No. 35066 The original and the defendant signed the Employment Agreement for Graduates of Domestic Colleges and Universities of an Airport Co., Ltd., stipulating that the defendant will work in the plaintiff's company after graduation. If the defendant fails to sign a tripartite agreement with the plaintiff before March 31, 2020 due to reasons attributable to the defendant, it will be deemed as a breach of contract, and the defendant shall pay liquidated damages of 50000 yuan to the plaintiff. The party proposing to terminate the agreement shall pay liquidated damages of 50000 yuan to the other party. The court held that in this case, according to the facts found out, although the plaintiff failed to produce sufficient evidence to prove that its actual loss had reached or exceeded 50000 yuan, the existing evidence could still show that the plaintiff did bear certain human and material costs for recruiting the defendant, and the plaintiff would inevitably incur actual losses if the defendant did not agree to join the company for its own reasons. Since the plaintiff failed to prove the specific amount of the actual loss and the defendant applied for a reduction in liquidated damages, the court determined the amount of liquidated damages to be borne by the defendant to be 20000 yuan in combination with factors such as the contract agreement, actual performance and fault degree of both parties, especially the situation shortly after the defendant's graduation. Due to the outbreak, most of the last 2 years of school recruitment online, the cost of online recruitment by employers is significantly lower than the cost of on-site recruitment. If the liquidated damages charged by the employer for online recruitment are the same as or even more than the liquidated damages charged for on-site recruitment, job-seeking students can consider whether the liquidated damages are excessively higher than the losses caused. 4 Employment Agreement Signing Risk Tips and Suggestions Both signing and settlement contracts should be carefully considered. When graduates and employers sign employment agreements, they should pay attention to the following points: 1. Determine the regularity of the recruitment unit, verify the authenticity and social reputation of the company in many ways, and avoid being deceived. 2, the specific content should be agreed clearly. If the employment agreement is to stipulate liquidated damages, please write clearly the amount, not the vague "economic loss" or "to be determined". If the unit clearly indicates that there is no liquidated damages, please also indicate or cross out the blank of liquidated damages, and the same applies to other blanks. 3. Please clarify the relevant contents with the employer before signing the contract, and sign after careful consideration. Keep the corresponding evidence to avoid disputes arising from the discrepancy between the written content and the negotiation. 4. Please be careful before signing the contract. Please keep your promise after signing the contract.
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With the rapid development of science and technology and the continuous rise of emerging industries, the scale of transactions continues to expand, making the forms of transactions with various functions increasingly diversified. In practice, there is often such a phenomenon that the conditions for the parties to enter into a formal contract are not yet mature, but The parties do not want to miss opportunities or take risks. The simple contracting method of "offer-commitment" can no longer meet the needs of market entities, intentional agreements such as letters of intent and appointment contracts came into being as a way of contracting in the new era. Equity transfer is a complex and cyclical process. Risks exist in the entire process of the transaction. Therefore, the negotiation and contracting cycle is relatively long. In order to lock in an exclusive negotiating position and strive for more favorable contract conditions, both parties often sign framework agreements., Subscription letter, letter of intent, memorandum of understanding, negotiation minutes and other intentional agreements to achieve the purpose of finally signing a formal equity transfer agreement. The main application scenarios of intentional agreements in equity transfers include internal decision-making procedures still to be performed by both parties to the transaction, uncertainty of the target company, restrictions on the subject matter of the transaction or the transaction procedures, and the need to approve or register the transaction. Article 495 of the Civil Code provides general provisions on the definition and effect of an appointment contract, but does not provide additional provisions and interpretation of intentional agreements. Usually, there are clauses in the intention agreement that cause it to lose its binding force, such as "this agreement is not legally binding". Such clauses often mean that both parties do not want to be bound by the agreement, but in some cases, the intention agreement also has certain legal effect. In practice, it is called an intentional agreement, which may also be recognized as a formal contract, and this article will briefly analyze the characterization and validity of the letter of intent, the appointment contract and the contract in the equity transfer. Relevant laws and regulations Civil Code Article 495, paragraph 1, provides that a subscription, order, reservation, etc., in which the parties agree to conclude a contract within a certain period of time in the future, constitutes an appointment contract. The second paragraph of Article 495 stipulates that if one of the parties fails to perform the obligation to conclude the contract under the appointment contract, the other party may request it to bear the liability for breach of the appointment contract. Article 500 stipulates that if a party has any of the following circumstances in the course of concluding a contract, causing the other party's loss, it shall be liable for compensation: (I) negotiate in bad faith under the guise of concluding a contract; (II) intentionally conceals important facts relating to the conclusion of the contract or provides false information; (III) other violations of the principle of good faith. focus analysis Can (I) contract called letter of intent for equity transfer be recognized as an appointment contract or this contract according to its contents? In the process of equity transfer, there are usually three stages for the parties to conclude a contract, namely, the negotiation stage before the offer commitment, the formal contract stage scheduled to be concluded at a certain time in the future in the offer commitment and the final signing of the contract stage after the offer commitment. Intentional agreement is the pre-contract state that appears with the complexity of the transaction process, but according to the substance of the contract, the letter of intent may also be identified as a different contract nature, this affects the application of the law and the determination of the relationship between the rights and obligations of the parties to the contract. Since both the letter of intent and the appointment contract, which do not constitute an appointment, express the willingness of the parties to enter into a formal contract in the future, it is not easy to distinguish between the two in practice, and in general, the letter of intent, the appointment contract and the contract can be identified from the following two aspects: First, the purpose of the contract. The purpose of the contract is the soul of the whole contract, and the determination of the purpose of the contract is of vital value and significance to the signing and performance of the contract, which is the natural requirement of freedom of contract. The letter of intent expresses the willingness to trade and hopes to continue the negotiation in good faith. Generally, there will be clauses such as "this letter of intent shall be regarded as concluded for the purpose of negotiation only". The purpose of the reservation contract is to ensure that the contract subject enters into this contract. For the formal contract to be concluded at a certain time in the future, the main content of the contract is to conclude this contract within a certain period of time in the future. Generally, the purpose of time, however, this purpose will be expressed through the terms of the contract, such as "pending the signing of a formal equity transfer agreement between the parties"; the purpose of this contract is to establish a specific legal relationship, I .e., for the transferee to enjoy the assets of the subject company or some special property right carried by the equity, and for the transferor to obtain the corresponding consideration. Second, the certainty and completeness of the content of the contract. Generally speaking, the transaction content of the letter of intent is not certain, it is only a record of the negotiation process between the two parties, which is part of the contracting process and provides reference for further negotiation. In order for the letter of intent to constitute an appointment, its binding force must be expressed or implied in the terms of the contract, one of the differences between the reservation contract and the letter of intent is that the substantive terms of the reservation contract must meet the explicit or implicit binding force, while the procedural terms must meet sufficient certainty; the transaction object, content, duration and other contents of this contract are determined and complete. Generally, under the condition that the reservation content is relatively complete, there is a theoretical view of "this contract", for example, there is a specific arrangement for the delivery of the subject matter, if the main terms of the equity transfer are in place and the subject of the contract no longer signs a separate written contract, but performs it directly, it may be deemed to constitute this contract. However, the fundamental difference between the appointment and the contract still lies in the agreement on the rights and obligations of the parties in the contract. If the contract clearly states that the purpose of the contract is to conclude the contract in the future, the appointment cannot be characterized as the contract because the content has been determined or partially performed. Instead, the contract content, negotiation behavior and performance facts should be comprehensively considered to determine whether the contract is established. In short, the core criterion for distinguishing between a letter of intent, an appointment contract and a contract contract is the intention of the parties, and the certainty and completeness of the content of the contract is only a necessary, not sufficient, condition for the appointment. What legal liability should the (II) bear for violating the letter of intent, appointment contract and contract signed in the equity transfer? In the letter of intent for equity transfer, the contract subject undertakes the obligation of good faith negotiation, which is generally not bound by law, and can only be relieved from the perspective of contractual negligence liability. Generally speaking, the principle of attribution of contractual negligence liability is the principle of fault liability, and the violation is the prior contractual obligation. The form of liability can only be compensation for losses, and the scope of compensation is the loss of trust interests, the purpose is to refund the various fees paid by the non-breaching party for the performance of the contract of reliance. In the reservation contract, the contract subject shall sign a formal equity transfer agreement within a certain time, and its binding force shall be terminated after the conclusion of this contract. When one party violates the contract and fails to perform the obligation to conclude this contract, there are generally four views in the academic circle on the legal liability that it should bear: must negotiate, should conclude, distinguish and regard as this contract. The "must negotiate" holds that as long as negotiations are held for the conclusion of this contract at some point in the future, the contractual obligations will be fulfilled. The "should be concluded" holds that the appointment debtor has the obligation to conclude this contract, and the creditor can claim to perform it. The "distinction" holds that the specific situation is analyzed in detail; "deemed to be the contract" holds that the contract that already has the main points of this contract should be directly regarded as this contract. As to whether the appointment contract can be enforced, there are still great disputes in academic and practical circles. In judicial practice, most courts will not directly judge the parties to force the conclusion of a formal equity transfer agreement, mainly because the purpose of the appointment contract is to sign a formal contract in the future, and compulsory contracting may violate the principle of autonomy of will and the spirit of freedom of contract. According to the second paragraph of Article 495 of the Civil Code, the contract-keeping party may request the breaching party to bear the liability for breach of the appointment contract, and if the conditions for termination are met, it may also claim the termination of the appointment contract and compensate for the loss. In the transfer of shares, the loss arising from the breach of the appointment contract is usually expressed as the expenses paid by the party to enter into the appointment contract, the preparation of the contract, and the deposit, security deposit or similar payment and interest paid. However, in fact, many parties did not agree on liquidated damages in the appointment contract, and it is difficult for the right holder to prove the actual loss of their own party, and it is difficult to prove that the failure to complete the equity transfer between the two parties is caused by the other party's violation of the principle of good faith. In violation of an effective equity transfer contract, the transferee shall have the right to demand delivery of the equity and compensation for the loss, and the transferor shall have the right to claim the price and compensation for the loss. In practice, due to the diversity of the forms of the appointment contract, it is also easy to be confused with this contract. For example, the name is "equity transfer agreement". Based on the principle that the substance is greater than the form, it may also be identified as a letter of intent, an appointment contract or this contract. If the appointment contract has the main terms of this contract, it may be converted into this contract, at this time, the breaching party may require the breaching party to continue to perform the contract and bear the liability for breach of contract in accordance with the contract. Related Cases (I) Supreme People's Court (2015) Min Er Zhong Zi No. 143 Civil Judgment Basic case: In October 2012, Zaihe Company and Landing Company signed the "Letter of Intent for Equity Transfer", agreeing to transfer 51% of its equity in Zaihe Mining Company to Landing Company, and within 45 days from the date of signing the letter of intent Complete the signing of the formal agreement on equity transfer; on the same day, the two companies signed the "Memorandum of Understanding I", agreeing that the "Letter of Intent" is only as the cooperation intention between the two parties, for its final performance, both parties will sign a formal equity transfer agreement as the basis. After that, Landing Company paid 0.1 billion yuan to the company. In April 2013, Landing Company and Zahe Company signed the "Equity Transfer Agreement", which agreed: Zahe Company transferred 51% of the equity of Zahe Mining Company; two days later, the two parties signed the "Memorandum of Understanding II", which agreed that the previous two days Signed the "Equity Transfer Agreement" has no legal effect on both parties; since then, the two parties have not signed a formal equity transfer agreement, landing Company sued the court for the return of 0.1 billion yuan in advance payment and interest. Zaihe Company claimed that both parties still have a contractual relationship of equity transfer and demanded to continue to perform the contract. The court of first instance (Anhui Higher People's Court) held that: the "Letter of Intent for Equity Transfer" is a document of intent signed by both parties and does not have the legal binding force of a formal contract for both parties. The "Equity Transfer Agreement" is the implementation of the "Letter of Intent for Equity Transfer". A formal agreement reached by consensus on the content of the relevant equity transfer. Once the "Equity Transfer Agreement" is signed, it replaces the "Equity Transfer Letter of Intent" and becomes the basis for the relationship between the rights and obligations of the two parties in the equity transfer, and the "Equity Transfer Letter of Intent" is therefore invalid. Later, the two parties signed the "Memorandum of Understanding" to terminate the validity of the "Equity Transfer Agreement", so there is no valid equity transfer contract relationship between the two parties. On this basis, the company believes that there is still a valid equity transfer contract relationship between the two parties can not be established, and accordingly, Landing Company won the case. The court of second instance (the Supreme People's Court) held that the Letter of Intent for Equity Transfer stipulates that within 45 days from the date of signing the Letter of Intent, both parties shall complete the signing of the formal agreement for equity transfer according to the terms of the Letter of Intent. Based on this, it can be judged that the Letter of Intent is an appointment, and it is a contract for the parties to conclude this contract in the future, the judgment of the first instance that the Letter of Intent for Equity Transfer is only a document of intent signed by both parties, and the determination that the parties do not have the legal binding force of the formal contract is corrected; at the same time, the judgment of the first instance that Zahe Company should compensate Landing The determination of the loss of interest is maintained. (II) Supreme People's Court (2018) Supreme Court Civil Judgment No. 813 Basic case: Nord signed a "Project Acquisition Agreement" with Tianlang Company in February 2014, transferring HD49-1 and HD49-2 residential projects to Tianlang Company. In February 2016, the lawsuit sought the termination of the acquisition agreement. In June 2016, Nord Company and Evergrande Company signed the Equity Transfer Contract. The contract stipulates that within 3 months after the signing, Nord Company will be responsible for terminating the acquisition agreement, and will invest the HD49-1 and HD49-2 plots at the price to establish project company A and project company B respectively, and transfer 100 percent of the equity of the two companies to Evergrande Company. The contract clearly stipulates the relevant circumstances of the project company and the project plot, the specific operating procedures, the total amount and payment of the lump sum fee, the rights and obligations of both parties, and the liability for breach of contract. In December 2016, Nord Company sent a "Notice of Termination of Contract" to Evergrande Company. In May 2017, Evergrande Company sent a "Notice of Request to Perform the Contract as soon as possible" to Nord Company. Evergrande Company sued Nord Company for continuing to perform the "Equity Transfer Contract", compensating 50 million yuan for liquidated damages and 241.86 million yuan for losses. The court of first instance (Zhejiang Higher People's Court) held that: according to the agreement in the Equity Transfer Contract, Nord Company agreed to invest the HD49-1 and HD49-2 plots to establish project companies A and B after the cancellation of the acquisition agreement. This is a prerequisite for Evergrande Company to accept the equity of the corresponding project company. At the same time, the contract also stipulates that within 3 months after the signing of this agreement, Nord Company is responsible for the cancellation of the acquisition agreement, "Prerequisites" and "3 months" shall be the preconditions of the relevant equity transfer and the time limit for the termination of the relevant acquisition agreement, rather than the agreement of the parties on the effective conditions of the equity transfer contract involved in the case, so the contract shall be confirmed and valid according to law. The case concerning Nord's claim that the contract has been terminated because Evergrande requested a clear reply that did not agree to the termination and could not determine the cause of the termination, so the claim was not valid. According to this judgment, Nord Company shall pay Evergrande Company liquidated damages of 50 million yuan and compensate Evergrande Company for losses of 100 million yuan. The Court of Second Instance (Supreme People's Court) held that Nord had argued in the second instance that the Equity Transfer Contract between Nord and Evergrande was an appointment contract with the main terms of this agreement. According to the basic principles of civil law and the consistent understanding in judicial practice, the standard of distinction between appointment and contract should be determined according to the meaning of the parties in the contract. First of all, from the content of the contract between the parties, the equity transfer contract involved in the case takes the equity of the project company as the subject of transfer. At the time of signing the contract, both project companies A and B have not been established, and both parties have no very certain certainty. Secondly, judging from the agreement on the transaction operation procedure in the contract, even if Nord has completed the prerequisites agreed in the agreement, there is uncertainty as to whether the transaction can be completed, rather, it depends on whether Evergrande confirms in writing its continued performance after the completion of due diligence. Third, although the "Equity Transfer Contract" involved in the case stipulates Evergrande's right to unilaterally decide whether to continue to perform, this unilateral decision can only be attributed to the agreement on the right to claim creditor's rights, and cannot set the right to form in the right to choose contract, and the contract price and other contents have not been determined. Even if Evergrande agrees to continue the transaction after due diligence is completed, there is still room for both parties to continue negotiation on the price. Accordingly, the nature of the contract should be recognized as an appointment contract, after the signing of the contract, both parties have the obligation to actively facilitate the completion of the transaction and the conclusion of this contract. In this case, Evergrande did not pay any money to Nord, nor did it make any input or other contributions to the project involved, other than the fees paid for the conclusion of the appointment contract, and could not provide any evidence in this case to prove it.
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Dynamic... Zhongcheng Qingtai Jinan held a part-time lawyer exchange meeting.
On August 11, Zhongcheng Qingtai (Jinan) Law Firm held a part-time lawyer exchange meeting. Geng Guoyu, director of Jinan Institute, Du Wentang, director of the Administrative Committee, He Zefeng, deputy director, Shi Guangbo, and Li Jian, chairman of the trade union, held discussions and exchanges with representatives of part-time lawyers. Part-time lawyers have high legal theory literacy, and law is a practical subject. Part-time lawyers are excellent subjects to realize the combination of legal theory and legal practice. Zhongcheng Qingtai law firm has always attached great importance to the unique role of part-time lawyers in the construction of law firms, in promoting economic development, safeguarding people's rights and interests, and in the process of national rule of law. The exchange activities were presided over by lawyer He Zefeng. Lawyer Du Wentang welcomed the part-time lawyers who attended the meeting. At the meeting, the part-time lawyers discussed their working experience in the law firm, the improvement of personal ability, the construction of resource platform and the future development of the law firm. Part-time lawyers have high legal theory literacy, not only play the basic function of preaching and teaching, but also engage in legal practice as a lawyer, and spread the spirit of the rule of law in the combination of legal theory and legal practice. Part-time lawyers said that they will use the law as a platform to devote themselves to the practice of the rule of law, give full play to their professional advantages, actively assume social responsibility, and contribute to the rule of law. The exchange meeting was presided over by He Zefeng, deputy director of Zhongcheng Qingtai Law Firm. Director Du Wentang welcomed the part-time lawyers present at the meeting and looked forward to the perfect combination of part-time lawyers in their own work and part-time lawyers' practice, contributing to the construction of law firms, the improvement of legal communities, the development of legal disciplines and the process of the rule of law in China. Shi Guangbo, deputy director of Zhongcheng Qingtai Law Firm, welcomed the suggestions put forward by part-time lawyers, responded and promised that the law firm would provide more platform support for the development of part-time lawyers and realize environmental empowerment, system empowerment, case source empowerment and brand empowerment. At present, the firm has provided relatively fixed service office space for part-time lawyers, implemented the partner assistant sharing system, and carried out team case source sharing cooperation, and eventually build and enhance part-time lawyer personal service brand. Wu Haiyang, deputy director of the Human Resources Executive Committee, Li Jian, chairman of the trade union, and Tian Wenhua, director of the office, respectively said that through a series of group building activities and auxiliary work, the sense of integration and belonging of part-time lawyers will be fully enhanced, and the best external environment and conditions will be created for the practice of part-time lawyers. Based on their colleges and their own situation, the part-time lawyers at the meeting sincerely expounded their ideas and suggestions from the aspects of working experience in the law firm, the improvement of personal ability, the construction of resource platform and the future development of the law firm, and said that they would take the law as a platform, devote themselves to the practice of the rule of law, give full play to their professional advantages, actively assume social responsibility and contribute to the process of the rule of law. At the end of the meeting, lawyer Geng Guoyu made a concluding speech: part-time lawyers are the precious wealth of the law firm and have made great contributions to the development of the law firm. I hope that the law firm and part-time lawyers can empower each other. The law firm can provide more resources and system support for part-time lawyers and enhance the sense of integration and participation of the law firm. Part-time lawyers also give full play to their solid legal theoretical foundation, enhance the professional development and academic accumulation, and seek common development. If you take advantage of the wisdom of all, you will be incompetent. With the strength of all; There is nothing invincible. Zhongcheng Qingtai (Jinan) Law Firm welcomes more excellent part-time lawyers to join, and jointly builds the part-time lawyer team into a characteristic brand of Zhongcheng Qingtai and a beautiful scenery line in the lawyer industry.
2022-08-12
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
