Zhongcheng Qingtai legal service product "roadshow" the first phase of the event was successfully held

On April 21, 2022, Zhongcheng Qingtai legal service product "Roadshow Exchange" series of activities (phase I) were successfully held. The theme of this issue is "Enterprise Compliance Construction and Management", presided over by senior partner Zhao Kaiyong, and a total of more than 100 lawyers participated in the activity. Lawyer Du Wentang, senior partner, delivered a speech for this event. Lawyer Du believes that the development of law firms depends on specialization, and the personal development of lawyers should reflect specialization. He encourages all lawyers to create their own by actively launching professional legal service products. Specialization, win the trust of clients, and gain market recognition. Senior partner Wang Yehua lawyer to his team of lawyers for a central enterprise construction company tailor-made construction project compliance risk management manual project as a blueprint, to create the construction enterprise compliance construction products. This product has the advantages of risk identification scenario, process control line, business service modularization and other product advantages, and can customize legal services according to customer needs. (Product A: Compliance Construction of Construction Enterprises) Senior Partner, Mr. Hu Youbin, has created this compliance management system construction and operation guide product based on his rich experience in the field of compliance operation of state-owned enterprises and the supervision of state-owned assets. The product comprehensively covers risk identification due diligence, compliance management institution system construction, compliance system system construction, management process optimization and other enterprise life cycle compliance management system construction content. (Product B: Operational Guidelines for the Construction of Compliance Management System) Senior partner Wang Yan lawyer from the real estate enterprise compliance product customer demand and design logic, specifically introduced the real estate industry as a pillar industry of the national economy, as well as related to the quality of the project and the safety of people's lives and property of the strong regulatory industry, its daily operation in the specific compliance legal needs. This compliance product covers the legal risks that may be involved in the whole process of real estate enterprises from land project acquisition to commercial housing sales and delivery, property management, etc., and has a strong reference value for real estate enterprises. (Product C: Legal Risk Management of Real Estate Enterprise Compliance) Partner Wang Junjie lawyer to the Supreme People's Procuratorate is promoting the national enterprise compliance activities as the starting point, combined with his many enterprises to provide criminal compliance construction legal service experience and classic cases, to create the enterprise criminal compliance construction legal service products. The purpose of the product is to help enterprises establish and improve the criminal compliance system by carrying out criminal compliance rectification for enterprises, so as to help enterprises and entrepreneurs effectively prevent criminal risks, and obtain criminal incentives to avoid or reduce criminal liability after the occurrence of criminal risks. (Product D: Enterprise Criminal Compliance Construction) Around the above-mentioned legal service products, the "online and offline" participating lawyers had in-depth communication with four lawyers in combination with the relevant problems encountered or concerned in the course of their practice, and the roadshow achieved good results. "Roadshow Exchange" is a brand of legal service product promotion activities newly created by Zhongcheng Qingtai. It aims to make the innovative, practical, complete and professional achievements developed by lawyers in the process of practice into a scenario-based, full-process, standardized and multi-dimensional legal service product, and publicly promote it inside and outside the law firm. The "Roadshow Exchange" is scheduled for four phases in 2022, and follow-up activities will be launched one after another. Please look forward to it.

2022-04-22

Point of View | Crime and Punishment of Epilepsy Patients Driving on the Road

If you are an epileptic, can you drive a car on the road? The answer is no! According to Article 15 of the regulations on the application and use of motor vehicle driver's license issued by the Ministry of public security, those who have organic heart disease, epilepsy, Meniere's disease, vertigo, hysteria, tremor paralysis, mental illness, dementia and neurological diseases affecting physical activities shall not apply for a motor vehicle driver's license. Epilepsy is a driving taboo disease, normally, epilepsy patients can not drive a vehicle on the road, but if an epilepsy patient drives a vehicle on the road, if unfortunately on the way epilepsy seizures, and caused certain harmful consequences, then whether it constitutes a crime, if it constitutes a crime, and how to punish it? Let's look at four cases first. Brief of the case Case one Liu Moumou obtained a U.S. driver's license while studying abroad in 2017. After returning to China, he applied for a driver's license from the traffic police department on May 9, 2018. Since June 2018, Liu Moumou has been to many hospitals for consultation due to multiple short-term amnesia, general convulsions and other symptoms. During this period, he became ill while driving on November 9, 2018, causing the vehicle to lose control and causing a traffic accident. In December 2018, Liu Moumou was diagnosed with epilepsy. Since then, he has taken medication, but he still has seizures until the incident. At about 19:00 on May 16, 2019, Liu Moumou became ill again while driving out, and the vehicle lost control. First, he crashed into the crowd waiting for the signal light on the safety island in the middle of the intersection, and then crashed into two motor vehicles waiting for the signal light in the opposite direction., Resulting in three deaths, one serious injury, five minor injuries, and two minor injuries, three cars, four electric bicycles, a bicycle and municipal transportation facilities were damaged with a value of 125897 yuan. After the accident, Liu Moumou remained in the car that caused the accident. The owner of the car who was hit came forward to remind him to turn off the engine. Liu Moumou did not respond. After that, Liu Moumou gradually became conscious and got off the bus. He called 120 Emergency Center when reminded by others. Case II 1. At about 11 o'clock on December 5, 2009, Li Mougui had an epileptic seizure while driving an off-road vehicle without a license. The vehicle he was driving lost control and collided with three vehicles successively, and then rushed into the sidewalk on the east side of the road. Damaged electric vehicles and protective fences on the roadside. After identification: Wang Moujia and Yue Mou's human body injuries were minor injuries, and Li Mou's human body injuries were minor injuries, causing a total of 44492.90 yuan in direct economic losses. 2. At about 19:00 on August 11, 2011, Li Mougui drove a car without a license and had an epileptic seizure on the highway. The vehicle he was driving lost control and collided with the middle guardrail of the highway. Defendant Li Mougui lost 85290 yuan for the vehicle he was driving and 8800 yuan for the guardrail fee in the middle of the expressway. 3. At about 15:00 on September 28, 2012, Li Mougui had an epileptic seizure while driving a small passenger car without a license. The vehicle he was driving lost control and collided with three vehicles successively, causing damage to the three vehicles to varying degrees. Passengers Zhang and Pu were injured, and Li Chungui himself was slightly injured. The direct economic loss was identified as 11960 yuan. Case three In 1998, Zuo applied for a motor vehicle driver's license with a permitted driving type A. In February 2012, the left army was diagnosed with epilepsy by the hospital. In July of the same year, when the driver's license was reviewed, he concealed his illness, deceived the public security organs, and renewed his driver's license. In January 2014 he was again hospitalized for epilepsy. At about 15:00 on May 1 of the same year, when Zuo Moujun was driving a car (carrying his wife and brother) on the road in the city, he had a sudden seizure of epilepsy, causing the vehicle to crash into pedestrians due to loss of control, resulting in 4 deaths and 8 people. A major traffic accident with varying degrees of injury. Case four At about 20 o'clock on February 28, 2019, Tian Mouhong was driving a small ordinary passenger car. On the way, an epileptic seizure caused the vehicle to lose control. It successively collided with the bicycle in the riding and the car in the driving, and caused the cyclist to be rescued. The invalid death, the co-passengers of the car were injured, and the three cars were damaged. Question 1: Do the above four epilepsy patients have criminal responsibility in the case? Epilepsy is a type of driving contraindicated disease. According to the regulations, people with epilepsy are not allowed to apply for a driver's license, and those who have applied for a driver's license are not allowed to drive a motor vehicle after determining that they have epilepsy, and should apply for cancellation of the driver's license. The driving qualification and driving behavior of patients with driving contraindications are mainly based on the fact that patients cannot control the onset time and consequences of their own diseases autonomously, and driving motor vehicles on the road is highly dangerous to public safety. Therefore, in terms of the ability to identify the criminal responsibility, the perpetrator of the crime began to start driving the vehicle illegally, so the identification of its criminal responsibility should be based on its ability to identify and control the vehicle when it began to drive illegally, and the perpetrator's illness in the process of committing the crime does not affect the identification of its criminal responsibility. In the above four cases, all the actors have been diagnosed as patients with driving contraindication diseases before the crime. They have normal identification and control ability when driving motor vehicles on the road. They have the ability to understand and choose the results of endangering public safety due to their own diseases at any time. Their ability to identify and control will be weakened or lost due to the onset at any time, which will cause high danger to public safety, it is the result of free choice when it violates the driving taboo, and it shall bear the corresponding criminal responsibility for the occurrence of the result. Referee result The above four cases are all from the public cases of Chinese judicial documents. In case one, the court held that Liu Moumou was not allowed to drive a motor vehicle knowing that he had epilepsy, and when a traffic accident had occurred, he drove a motor vehicle on the road. The seizure caused the vehicle to lose control and collide with pedestrians and vehicles, causing three deaths and eight injuries, and the serious consequences of damage to related vehicles and traffic facilities, his behavior constituted the crime of endangering public security by dangerous means. The court sentenced Liu to 13 years' imprisonment after comprehensively considering Liu's surrender, compensation and understanding, and confession. The court in case 2 held that Li mougui, knowing that he was suffering from epilepsy and was not qualified to drive, still drove a motor vehicle three times, causing two minor injuries, one minor injury, direct economic loss of 44492.90 yuan, vehicle loss of 85290 yuan, loss of 8800 yuan of highway intermediate guardrail fee and damage of multiple vehicles, two bus passengers and direct economic loss of 11960 yuan, His behavior is enough to endanger public safety, it has constituted the crime of endangering public security by dangerous means. Considering the circumstances of his confession and compensation, Liu was sentenced to four years' imprisonment. In case 3, the court held that Zuo Moujun violated traffic and transportation management regulations and caused a major traffic accident that caused 4 deaths and 8 injuries. His behavior constituted a traffic accident crime and was sentenced to seven years in prison. In case 4, the procuratorate prosecuted the crime of endangering public security by dangerous means. After trial, the court held that the crime of endangering public security by dangerous means was an intentional crime, and Tian Mouhong did not have the subjective intention to pursue the result of the crime or allow the result of the crime to occur, which did not meet the constitutive requirements of the crime. Tian Mouhong violated the traffic and transportation management regulations and caused a major accident that caused the death of one person. He should be identified as a traffic accident crime. Based on his confession and compensation understanding, he was sentenced to one year and six months in prison. Question 2: The same epilepsy patients have a traffic accident while driving on the road. Why are the charges different and the penalties are also quite different. Are there different sentences in the same case, or are the facts of the case really different? From the two charges involved in the analysis. The crime of endangering public safety by dangerous means refers to the act of endangering public safety by using other dangerous methods equivalent to the danger of fire prevention, throwing dangerous substances, breaking water and explosion methods. The legal interest violated by this crime is the safety of the lives and property of the unspecified majority, which belongs to the crime of endangering public security. The crime of causing traffic accidents refers to the act of violating traffic and transportation management laws and regulations, resulting in a major traffic accident, causing serious injury or death, or causing heavy losses to public and private property. The crime also has the characteristics of endangering the unspecified majority. Specifically in the above four cases, the perpetrator knew that he had epilepsy, and he also knew that he was not allowed to drive on the road with epilepsy. That is, the perpetrators in the four cases were aware of the violation of traffic rules. However, the crime of endangering public safety in a dangerous way is an intentional crime, that is, the perpetrator knows that he has epilepsy and drives on the road, which may cause harm to the society, but he still drives on the road and allows the result of endangering the society to occur. The crime requires that the perpetrator is subjectively indirect and intentional. The crime of causing traffic accidents is a crime of negligence. The perpetrator violates traffic rules intentionally. He foresees the possible harmful consequences of doing so, but he is too confident and credulous to avoid it. Therefore, in order to find out the reasons for the different sentences in the above four cases, it is necessary to further analyze whether the subjective guilt of the perpetrator is indirect intentional or overconfident negligence. From the actor's subjective guilt analysis. According to the provisions of articles 14 and 15 of the criminal law of our country, it is an intentional crime to know that one's own behavior will have the result of endangering the society, and hope or allow such result to occur, thus constituting a crime. It is a negligent crime to foresee the possible result of one's own behavior that is harmful to the society. If one does not foresee it due to carelessness, or if one has foreseen it and believes it can be avoided, such a result. Among them, it is difficult to accurately distinguish between the intentional crime of allowing the harmful result to occur (indirect intention) and the negligent crime of credulity to avoid (overconfidence). In terms of cognitive factors, the doer knows that his behavior will cause harm to the society. In terms of volitional factors, the doer does not hope and pursue the social result of his behavior, the main difference is that the former is laissez-faire and the latter is opposed. In case one, Liu, as an adult with a higher education level, has normal cognitive ability. His confession knows that he has epilepsy. When the frequency of onset is high, it is once every two or three days, and when it is low, it is once every ten days. When the onset of the disease will suddenly lose consciousness, sometimes hallucinations, auditory hallucinations, there have been traffic accidents before the incident. Judging from Liu Moumou's confession and previous driving experience, Liu Moumou is not sure about the incidence of his forbidden driving disease and knows that he cannot control the consequences of the disease. He argues that he has a fluke mentality to drive, which does not rule out his laissez-faire mentality of resignation to the consequences of his behavior. In case 2, Li Mougui suffered from epilepsy for many years and could not be cured. He drove on the road without a license for many times, and had three seizures while driving without a license and caused accidents. People with common sense of life and driving experience know that epilepsy is a kind of nervous system seizure disease. The symptoms of epilepsy can be manifested as short-term disturbance of consciousness, and severe as systemic muscle twitching and loss of consciousness, which will cause the patient to lose consciousness and behavior ability for a period of time. Epilepsy is sudden, unpredictable and uncontrollable, and the probability of onset is high before it is completely cured. Patients may get sick at any time when driving a motor vehicle on the road, and once they get sick, they will lose control of the motor vehicle. the result of endangering public safety (dangerous or real harm) will be inevitable. Li Mougui knew that he had frequent seizures, and he had a precedent of seizures on the way before, but he still did not learn a lesson, which shows that he subjectively holds a laissez-faire attitude towards the possible harmful consequences. In the third case, Zuo Moujun concealed epilepsy, deceived the review agency, and renewed the motor vehicle driver's license during the motor vehicle driver's license review, which violated administrative regulations. But it has no precedent for driving while driving, and has been taking anti-epileptic drugs. Therefore, in terms of probability, the possibility of Zuo Moujun's sudden epilepsy while driving is very low, and it is not an administrative illegal act that will cause harmful consequences with a high probability. In addition, Zuo Moujun was hospitalized many times before the incident and has been taking antiepileptic drugs. The treatment has achieved certain results. Combined with the precedent that he has never had an epileptic seizure while driving before, he took his wife and brother on this trip. It can be presumed that Zuo Moujun's opposition to the occurrence of harmful results is both objective reality and customary thinking, and subjectively belongs to the fault of overconfidence. In case 4, Tian Mouhong suffered from epilepsy. After a period of hospitalization before the incident, good results have been achieved. When he was discharged from the hospital, the doctor did not require him to take the medicine on time. But out of caution, Tian Mouhong took the medicine every once in a while for a few days. Before this Tian a red drive has never had a seizure. The prosecutor accused Tian Mouhong of "driving after knowing that he had epilepsy that hindered driving qualifications and stopped taking drugs without authorization", but the court held that the case proved that Tian Mouhong knew that he had epilepsy and drove a motor vehicle without authorization. Insufficient evidence, and then believe that Tian Mouhong does not have the subjective intention to pursue the result of the crime or allow the result of the crime to occur, and does not meet the constitutive elements of the crime of endangering public safety by dangerous methods. A number of major criminal cases have occurred in this case due to the onset of driving contraindications. I would like to remind people suffering from driving taboo diseases not to be lucky and blindly confident. Once a traffic accident occurs, it will eventually harm others and themselves.

2022-04-21

Zhongcheng Qingtai. Real estate perspective: the risk of rising material prices in construction projects.

1. issues raised Affected by multiple factors such as rising raw material prices in the international market, domestic and foreign epidemics, and world energy shortages, the price of building materials has risen sharply, which has a significant impact on the performance of construction contracts? 2. relevant referee views (I) the contract stipulates that "market price fluctuations do not adjust the contract price", the contractor shall consider the market environment of construction materials and commercial risk factors such as price changes when bidding or signing a contract. If the price increase of materials does not exceed the peak market price, the principle of change of circumstances is not applicable, and the risk of material price increase shall be borne by the contractor. Case: Chongqing Construction Engineering Group Co., Ltd. and Chongqing Rongchang District Rongxin Environmental Protection Industry Development Co., Ltd. (Supreme People's Court [2019] Supreme Law Minshen No. 5829 Civil Ruling) The court held that the question of whether Article 11.1 of the Special Provisions of the Construction Contract for Construction Projects should be changed. Chongqing Construction Engineering Group believes that in this case, according to the principle of change of circumstances and the relevant provisions of the competent authorities, the part of the price increase of more than 5% should be adjusted to be borne by Rongxin Environmental Protection Company. In the opinion of the Court, Article 11.1 of the Special Terms of the Construction Contract for Construction Projects stipulates that market price fluctuations do not adjust the contract price, I .e. the risk of market price increases is borne by Chongqing Construction Engineering Group. After the contract was signed, the market price did rise due to changes in policy or market environment. However, as a professional and rational construction enterprise, Chongqing Construction Engineering Group submitted a bid to Rongxin Environmental Protection Company after carefully studying all the contents of the bidding documents and comprehensively considering the corresponding commercial risks and cost changes, under the premise of knowing that the project involved in the case is limited to 0.15 billion yuan, it should include the market environment and price changes of building materials as the commercial risk factors that should be considered in whether and how to bid. Article 26 of the (II) of Interpretation of the Supreme People's Court on the Application of Several Issues is a provision on the principle of change of circumstances in contract law. The objective situation emphasized in this article is that the parties cannot foresee at the time of conclusion of the contract and are not non-commercial risks caused by force majeure. Continued performance will be obviously unfair to one party or fail to realize the purpose of the contract, in this case, the increase in the price of construction materials should be a commercial risk that Chongqing Construction Engineering Group should reasonably foresee when bidding and signing the contract, and the increase did not exceed the peak market price, so the provisions of Article 26 of the (II) of Interpretation of the Supreme People's Court on the Application of Certain Issues shall not apply. (II) the contract stipulates that "the contract price will not be adjusted during the construction period", during the construction process, the price of materials will rise due to the adjustment of the national macro policy, and the relevant government departments notify the construction enterprise to make appropriate compensation with reference to the market price at the time of bidding and the price at the time of contract settlement. The notice is not mandatory and cannot be the basis for breaking through the contract. The risk of price increase shall be borne by the contractor. Case: China 13th Metallurgical Construction Co., Ltd. and Shaanxi Huangyan Expressway Co., Ltd. Construction Contract Dispute (Supreme People's Court [2018] Supreme Court Civil Judgment No. 380) The court held that whether the claim of 4154868 yuan for material and freight adjustment by XIII Metallurgical Company should be supported. As for the part of the appraisal opinion that the loss amount of material and freight adjustment is 4154868 yuan, the 13th Metallurgical Company claims that the price of material and freight will rise during the construction period, which belongs to the situation change stipulated by law and should be adjusted. In this case, relative to the total amount of project funds agreed by the parties in the contract, there is no sufficient evidence to prove that the range of changes in the freight prices of self-purchased steel, fuel and self-purchased materials during the construction period has reached a level that the parties could not foresee at the time of the conclusion of the contract, and does not constitute the Supreme People's Court on the application of<中华人民共和国合同法>Article 26 of the (II) for Interpretation of Certain Issues "After the establishment of the contract, the objective circumstances have undergone major changes that the parties could not foresee at the time of the conclusion of the contract and were not caused by force majeure and did not belong to commercial risks. If the parties request the people's court to modify or terminate the contract, the people's court shall, in accordance with the principle of fairness, and in the light of the actual situation of the case to determine whether to change or lift the circumstances of the change of circumstances. The general terms and conditions of the Contract Agreement signed between Huang Yan Company and Thirteen Metallurgical Company 70.1 stipulate that the fluctuation of labor, mechanical construction and material prices shall not be considered during the execution of the contract, I .e. the contract price shall not be adjusted during the construction period. During the construction of this project, due to the increase in steel prices caused by the adjustment of the national macro policy, the Shaanxi Provincial Department of Communications notified that for the construction in progress signed before the end of May 2003, the construction enterprise can be appropriately compensated according to the unit price of the contract and the actual implementation of the contract, referring to the market price at the time of bidding and the price at the time of contract settlement. On January 23, 2010, Huang Yan Company, in accordance with the notice spirit of Shaanxi Provincial Communications Department, decided at a special meeting of Huang Yan Company to compensate for the difference of 1415287.55 yuan in the price of self-purchased section steel in the HY-8 contract section. The first-instance judgment found that XIII Metallurgical Company could not use the notice as the basis to break through the contract and require Huang Yan Company to bear the loss of material price increases. Therefore, the appeal claimed by the 13th Metallurgical Company for Huang Yan Company to pay 4154868 yuan for materials and freight adjustment cannot be established, and the court will not support it. The agreement of the (III) construction contract on the risk of material price fluctuations during the normal construction period does not apply to the adjustment of material payments during the period of delay caused by the contractor, and the risk of material price increase during the period of delay caused by the contractor shall be borne by the contractor. Case: Erdos Municipal Transportation Bureau and Erdos along the Yellow River High-grade Highway Construction and Development Co., Ltd. (Supreme People's Court [2019] Supreme Law Minshen No. 5628 Civil Ruling) The court held that: whether there is a factual basis for the original court's determination that the Transportation Bureau and the company along the Yellow River are responsible for the increase in the price of construction materials and the increase in costs caused by the delay in the construction period. The original trial found that the construction period was delayed due to the transportation bureau and the company along the Yellow River, and the delay also brought about an increase in the cost of engineering materials of the top five companies. The original trial court found that the transportation bureau and the company along the Yellow River were responsible for the increase in the price and cost of construction materials caused by the delay in the construction period, which is based on facts. In addition, although the Bidding Document provides an agreement on the risk of material price fluctuation during the normal construction period, the agreement does not apply to the adjustment of material payment during the delay of the construction period caused by the Employer. It is obviously against fairness and logic to adjust the expansion of losses caused by unilateral breach of contract by the reasonable risk burden agreement that both parties can expect; the Transportation Bureau and Yanhuang Company have no evidence to prove that they have paid the materials in full to the actual constructor or contractor before the construction period is delayed due to their own reasons. The one-time full payment is not in line with the trading habits of the construction industry. The Transportation Bureau and Yanhuang Company claim that they should not bear the increased cost of materials caused by the delay in the construction period on the grounds that they have already paid the materials, which has no factual basis. (IV) the construction contract stipulates that the settlement shall be based on the facts, and if both the contractor and the contractor are at fault for the extension of the construction period, they shall each bear the fault liability in proportion to the loss of the material increase. Case: Jinan Changxing Construction Group Co., Ltd. and Zibo Yinuo Real Estate Development Co., Ltd. Dispute over Construction Contract (Shandong Higher People's Court [2020] Lu Min Zhong No. 2563 Civil Judgment) The court held that: on the issue of whether the first instance court's determination of the loss of material rise is correct. ...... During the construction of the project involved in the case, Yino Company had the problem of defaulting on the project payment, and Changxing Company also had the problem of insufficient construction personnel and mid-way exit. Both parties were at fault for the increase in materials caused by the delay of the project involved in the case, and the court of first instance found that both parties were each responsible for 50% of the loss of the increase in materials, which was in line with the actual project involved in the case. (V) the construction contract stipulates that the price of materials increases by a certain percentage and can be adjusted according to the facts, if the contractor can provide evidence, the contractor may request the contractor to bear the burden. Case: Dispute over Construction Contract between Shandong Liaojian Group Co., Ltd. and Shandong Liaocheng Zhongjusaida Real Estate Development Co., Ltd. (Shandong Higher People's Court [2014] Lu Min Yizong Zi No. 50 Civil Judgment) The court held that the settlement report submitted by Liaojian Group Company was in accordance with the contract. According to the provisions of Articles 23.2 and 23.3 of the special terms of the contract, the price of construction materials in the contract price involved can be adjusted according to the facts if the price increases by more than 5%. The policy adjustment documents and relevant regulations during the construction period can be applied. In the process of contract performance in 2010 and 2011, labor and material costs increased significantly, and the government made policy adjustments to labor costs. The adjustment of the actual labor and material costs in the settlement report of Liaojian Group Company has a contractual basis as well as a factual basis. Although the bidding documents stipulate that the construction measure fee will be covered in one lump sum and will not be adjusted during settlement, as the labor and material fees stipulated in the contract can be adjusted according to the facts, the increase in labor and material fees directly affects the measure fee. Under the condition that the labor and material fees can be adjusted according to the facts, the measure fee cannot be covered in one lump sum and should be adjusted accordingly during settlement. In the process of contract performance, Zhongju Saida Company subcontracted a large number of projects, the failure to pay the project progress payment in time leads to the extension of the construction period, increasing the measure cost and labor cost; in the case of fundamental changes in the construction market, only the actual adjustment can ensure that the measure fee is not lower than the cost, that is to say, the settlement report adjusts the measure fee, which has factual basis and contract basis. 3. Summary 1, material prices rise is the result of the law of the market, generally does not belong to the situation change. Article 533 of the Civil Code of the People's Republic of China stipulates that "after the establishment of the contract, the basic conditions of the contract have undergone major changes that the parties could not foresee at the time of the conclusion of the contract and do not belong to commercial risks. If the continued performance of the contract is obviously unfair to one of the parties, the adversely affected party may renegotiate with the other party. If the negotiation fails within a reasonable period of time, the parties may request the people's court or the arbitration institution to modify or terminate the contract. The people's court or arbitration institution shall, in the light of the actual circumstances of the case, modify or terminate the contract in accordance with the principle of fairness." The application of this article requires a strict distinction between changes in circumstances and commercial risks, which are inherent in the conduct of commercial activities, such as changes in supply and demand, price increases and decreases that have not yet reached an abnormal level of change, and risks inherent in non-market systems that the parties could not foresee at the time of contracting. The Notice of the Supreme People's Court on the Interpretation of Several Issues Concerning the Correct Application of the the People's Republic of China Contract Law (II) Serving the Overall Work of the Party and the State clearly stipulates that the court should correctly understand and carefully apply the change of situation. If it really needs to be applied in a case, it should be reviewed by the Higher People's Court and reported to the Supreme People's Court for review when necessary. 2. In the case of a commercial risk, the assumption of the risk depends on the agreement of the construction contract and the construction facts. If the price of materials fluctuates during the construction period in a fixed lump sum contract or the contract stipulates that the contract price is not adjusted, and there is no delay in the construction period due to the employer, the risk shall be borne by the contractor; if the construction period is delayed due to the employer and the price of materials rises during the construction period, the contractor shall provide evidence to prove that the risk of material price rising during the construction period delay shall be borne by the employer; if both the employer and the contractor are at fault for the contractor, the risk of material price increase during the delay of the construction period shall be borne by both parties in proportion to the degree of fault, and if the contract price can be adjusted according to the facts after the material price increases as stipulated in the construction contract, the contractor shall provide evidence to claim to the contractor. 4. Risk Alert Our lawyers believe that the construction period of the construction project is long and there are indeed many uncertain factors. Under the current situation that most of the construction contracts are fixed total price contracts or fixed comprehensive unit price contracts, the employer should carefully perform its contractual obligations to avoid the risk of unnecessary losses due to the delay of the construction period caused by its own actions. In the face of the payment of the project funds beyond the contract stipulated by the contractor due to the increase in material prices, it can have a benign communication with the contractor, the Contractor shall fully consider the possible risks in the contract performance during the bidding stage or contract signing stage, and reasonably determine the contract quotation to deal with the risks caused by the increase of material prices during the construction process, during the construction process, the contractor can strengthen the management of visa claims, and actively communicate with the contractor when the price of the main materials rises sharply, and strive to make a supplementary agreement on the sharing of the costs arising from the increase in the price of materials.</中华人民共和国合同法>

2022-04-21

Zhongcheng Qingtai Helps Jinan Urban Construction Group to Successfully Issue the First Offshore RMB Bond of Free Trade Zone Outside Shandong Province and Yangtze River Delta Region

On April 13, 2022, Jinan City Construction Group Co., Ltd. (hereinafter referred to as "Jinan City Construction Group") successfully issued the first offshore RMB bond in Shanghai Free Trade Zone outside Shandong Province and Yangtze River Delta. The issuance scale is 0.6 billion yuan, the currency is offshore RMB (CNH), the coupon is 3.6, and the term is 3 years (G22 Economic Construction 01), the Central Government Bond Registration and Settlement Co., Ltd. provides issuance, registration, custody, settlement and other services. On April 19, to overcome the many difficulties of financial institutions in the Shanghai Free Trade Zone during the epidemic in terms of system control and transaction settlement, the issuance finally completed the delivery work, marking the free trade zone bonds from the "Yangtze River Delta" to the whole country, entering a new stage of development. Zhongcheng Qingtai Law Firm serves as the Chinese legal adviser of the bond issuer in this free trade zone, with lawyer Yao Huming as the project leader, and lawyers Su Na and Liu Rongyi to form a service team, together with Minmetals Securities, West China Securities, Bank of Communications, Shanghai Pudong Development Bank, Beijing Deheng Law Firm (underwriter China consultant), Tianjian Club, Zhongtian Yun Club and overseas lawyer teams Fangda Hong Kong Law Firm, Nianlida Law Firm, etc, work together to assist Jinan City Construction Group to complete the FTA bond issue. The main innovation of FTZ bonds is that they use the unique "sub-accounting unit" (FTU) and "branch accounting account" (FTA) of Shanghai FTZ to raise and transfer funds, and realize the orderly and safe flow of offshore RMB abroad, within and outside the region under the principle of "first-line liberalization and second-line control. As a result, in addition to enterprises in the free trade zone, enterprises outside the zone can also issue bonds through the FT account and custody and settlement services of China Bond Deng, and domestic and overseas qualified institutional investors can subscribe at the same time, improving financing flexibility and broadening financing channels. The competent authority for FTZ bonds is the National Development and Reform Commission, which is regarded as foreign debt supervision. Issuance to foreign investors requires foreign debt registration. The bond terms, issuance circulars and other transaction documents are consistent with the overseas debt projects of Chinese-funded enterprises in terms of language, format and framework. All these have laid the foundation for the international recognition of FTZ bonds and laid the foundation for the development of the overseas debt market in Shanghai FTZ. However, in terms of regulatory requirements, application of law, jurisdiction over disputes, debt service, and tax arrangements for issuers and domestic and foreign investors, FTZ bonds are still different from foreign bonds, and special attention should be paid to document writing and information disclosure to avoid risks arising from copying foreign bonds. Therefore, business lawyers not only need to be familiar with the requirements, procedures, and documents of overseas bond issuance, but also have a deep understanding of Chinese law and the special system of the free trade zone, and be able to communicate smoothly with the regulatory authorities. Big challenge. At present, the bond business in the free trade zone is still in the early pilot stage, and there are no clear market and regulatory laws and regulations and complete supporting systems. In the process of undertaking business, lawyers of Zhongcheng Qingtai have benefited from the guidance of the competent authorities, the trust of the issuer and the help of domestic and foreign cooperative institutions. They have systematically sorted out the Chinese law issues related to the issuance of bonds in the free trade zone, and have accumulated valuable experience for future business undertakings. I would like to express my heartfelt thanks and look forward to more opportunities to discuss and cooperate with more enterprises and industry colleagues in the future, jointly contribute to the internationalization of the RMB and China's bond market. Up to now, Zhongcheng Qingtai has assisted in the successful issuance of 9 overseas US dollar bonds of Chinese enterprises, with a total amount of more than US $3 billion. One dim sum bond (Hong Kong offshore RMB bond) with an amount of 1.5 billion RMB; Another four overseas US dollar bonds are being processed. The structure of the overseas debt issuance undertaken covers the modes of domestic parent company guarantee/maintenance of overseas subsidiary issuance and direct issuance of domestic entity's certificate. Zhongcheng Qingtai's performance in undertaking domestic corporate bonds includes: public issuance of corporate bonds, non-public issuance of corporate bonds, CMBS asset securitization business, ABS asset securitization business, targeted debt financing instruments, Beijin debt financing plan, ultra-short-term financing bonds, medium-term notes, REITs real estate trust investment fund business, ABN asset-backed notes and other businesses. Zhongcheng Qingtai has accumulated rich experience in domestic and foreign bond issuance, and can provide integrated legal services for clients' domestic and foreign bond financing.

2022-04-19

Viewpoint | From the perspective of property service people to see the "Jinan City Property Management Regulations" provisions of the principles of community autonomy management.

The Standing Committee of Jinan Municipal People's Congress just issued the "Jinan City Property Management Regulations" (hereinafter referred to as the regulations) on March 30, 2022, which will come into force on May 1, 2022. As the saying goes, every family has a difficult book to read. A residential community is composed of every household, especially in the autonomous management and property services of the community, it is difficult to read and do things. The regulations promulgated this time set out "rules" for the autonomous management of the community, and gave a solution to the contradiction between the property service person and the owner. While setting new regulations and breaking difficult problems, property service providers should pay more attention to the provisions of the regulations on community management regulations and rules of procedure of the owners' assembly, so as to avoid omissions in the community management regulations and rules of procedure of the owners' assembly, which will affect the signing of property service contracts and generate business risks for property service providers. The principle of autonomous management of 1. communities should be reflected in the rules of procedure for the decisions of the owners' assembly and need not be regulated in the interim management statute or management statute. Paragraph 6 of Article 22 of the regulations stipulates that whether the voting rights of owners who do not participate in voting are included in the majority of votes already voted shall be stipulated by the temporary management statute or the management statute. The author believes that there are the following problems: Statistics on the number of (I) voting rights are not matters stipulated in the interim management statute or management statute. According to Article 17 of the State Council's "Property Management Regulations", "The management regulations shall have an impact on the use, maintenance and management of the property concerned, the common interests of the owners, and the obligations that the owners shall perform, the responsibilities and other matters that should be undertaken in violation of the management regulations shall be agreed in accordance with the law", Article 18 "The rules of procedure of the owners' meeting shall stipulate the discussion methods, voting procedures, the composition of the owners' committee and the term of office of the members of the owners' meeting" and Article 22 "The construction unit shall formulate temporary management regulations before selling the property to use, maintain and manage the property and the common interests of the owners, the obligations that the owners should perform, the responsibilities that should be assumed in violation of the provisional management statute and other matters shall be agreed upon in accordance with the law, and whether the voting rights are included in the majority of the votes that have been voted shall fall within the scope of the adjustment of the rules of procedure of the owners' meeting, rather than by the provisional management statute or the management statute. At the same time, the "Property Management Regulations" did not make corresponding provisions on "voting rights statistics. The (II) is inconsistent with the "Guiding Rules for Owners' Assembly and Owners' Committee" issued by the Ministry of Housing and Urban-Rural Development [2009] No. 274. The second paragraph of Article 26 of the "Guiding Rules for the Owners' Assembly and the Owners' Committee" stipulates that "Whether the voting rights of the owners who have not participated in the voting can be included in the majority of the voted votes shall be stipulated by the management regulations or the rules of procedure of the owners' assembly." This is obviously a general clause, but it is still valid at present and does not violate the State Council's "Property Management Regulations." The (III) "Shandong Province Property Management Regulations" was revised on December 3, 2021, and directly deleted the provisions on voting rights statistics. The second paragraph of Article 34 of the original "Shandong Province Property Management Regulations" implemented on May 1, 2009 once stipulated that "whether the voting rights of owners who do not participate in voting are included in the majority of votes already voted shall be stipulated by the management statute or the temporary management statute". However, after the regulation was revised on December 3, 2021, it directly deleted "whether the voting rights of owners who do not participate in voting are included in the majority of votes already voted, provided for by the Management Statute or the Interim Management Statute". (IV) of whether to provide for "voting rights statistics", the practice varies from place to place, but there is no provision for "by the interim management statute or management statute". Article 278 of the Civil Code clearly stipulates the legal proportion of owners' participation in voting on matters decided jointly, and does not stipulate the statistics of voting rights. Compared with the property management regulations in Beijing, Shanghai, Guangzhou, Shenzhen and other places, there is no provision for voting rights statistics. Regarding the provisions of voting rights statistics, the author believes that its role is to ensure the smooth progress of the voting procedures of the owners' meeting, and to prevent the occurrence of matters that must be voted by the owners' meeting but do not reach the statutory voting ratio, and fall into a long-term dilemma, which harms the owners. rights and interests. However, it is also clear that it is necessary for localities to take into account local conditions and to be regulated in detail by local regulations. In summary, the author believes that appropriate additions and adjustments should be made to improve the regulations: 1. In order to ensure that the Jinan property Management regulations comply with the relevant provisions of the the People's Republic of China Civil Code, the property Management regulations, the guiding rules of the owners' Congress and the owners' Committee and the property Management regulations of Shandong Province, it is suggested that the sixth paragraph of Article 22 of the regulations be amended as follows: if the meeting of the owners' assembly involves matters jointly decided by the owners, the voting votes shall be delivered to each owner. The voting shall be conducted in accordance with the provisions of Articles 18, 19 and 20 of these Regulations. Whether the voting rights of the owners who do not participate in the voting shall be included in the majority of votes voted shall be stipulated by the rules of procedure of the owners' meeting. 2. For residential communities that have not established a general meeting of owners, the property service providers in the early stage strengthened their contacts with sub-district offices, neighborhood committees, and construction units, and put forward reasonable suggestions for the draft temporary management regulations of the community and the draft rules of procedure of the general meeting of owners of the community, and added "voting rights" "Statistics" clause. 3, for the establishment of the owners' meeting of the residential community, see the selected property service personnel should focus on understanding the community management regulations and the rules of procedure of the owners' meeting. For those who do not agree on the "voting rights statistics" clause, put forward reasonable suggestions to the owners' committee, increase the topic content of the owners' meeting, improve the rules of procedure of the owners' meeting "voting rights statistics", and vote whether to agree with the property service provider to provide services to the community.

2022-04-18

Viewpoint | Effective Defense ---- Doubts not to prosecute

Doubt not to prosecute, also known as insufficient evidence not to prosecute. In a fraud case handled by the author, the procuratorial organ strictly controlled the evidence and did not prosecute the case for insufficient evidence-that is, no prosecution in doubt. 1. brief After investigation, it was found that 11 people, including Liu Moumou and Wang Moumou, premeditated to purchase waste aluminum plates from a certain color printing company. They cheated the color printing company by tampering with the weighbridge and agreed to share the stolen money equally among 11 people. On December 20, 2019, 11 people including Liu Moumou drove to the vicinity of the color printing company, and Liu Moumou went to the color printing company to discuss the purchase of waste aluminum plates. After negotiation, the purchase price was 18000 yuan per ton. The next day, Liu Moumou came to pull the goods. Liu Moumou and his three men went to the weighing place near the color printing company and agreed with the weighbridge owner to give the weighbridge owner 4000 yuan a benefit fee. The weighbridge owner agreed that they should install cheating equipment on the weighbridge electronic display. The next day to the color printing company after loading to the weighbridge weighing. When weighing, Wang Moumou and others used the remote control to control the electronic display of the weighbridge, weighing 8 tons, and should pay 144000 yuan for the goods. Liu Moumou and others asked for cash payment. The color printing company asked for the goods to be deposited into the company's account. The company accountant accompanied Liu Moumou and others to deposit in the bank. During this period, Liu Moumou and others urged the truck driver to leave as soon as possible. The truck driver drove not far away and was intercepted by the color printing company. At 13: 00 on the same day, the color printing company took the truck driver to the weighing place to weigh. Wang mou used the remote controller to control the weighing scale again, and the weighing was still about 8 tons. after the weighing was completed, the color printing company still refused to let the truck driver drive away. Liu and others worried about the incident fled the scene. On the third day, it was re-weighed, showing that the weight of the goods in the car was 24.44 tons, and the difference between the two days was 16.44 tons. According to the price determination center, the market recovery price of waste aluminum plates was 9000 yuan per ton. Therefore, it was determined that the amount of fraud by Liu Moumou and others was 75960 yuan. According to the personnel of the color printing company, Liu Moumou and others bought waste aluminum plates from the color printing company before. Because Liu Moumou and others were suspected of cheating in weighing, the color printing company has been trying to settle accounts with Liu Moumou and others. This time Liu Moumou and others contacted again. The color printing company wanted to quietly use this transaction to expose Liu Moumou and others and recover the losses. Therefore, the above transaction process was established. After the case, Liu and others reached a compensation understanding agreement with the injured unit with several times the amount of compensation involved. To sum up, it is determined that the behavior of 11 people including Liu Moumou has violated Article 266 of the the People's Republic of China Criminal Law, suspected of fraud, and transferred for review and prosecution. 2. processing results Liu Moumou, who was not prosecuted, did not meet the conditions for prosecution. According to the provisions of Article 175, paragraph 4, of the Criminal Procedure Law, it was decided not to prosecute Liu Moumou. 3. case analysis The defender pointed out that the "Prosecution Opinion" found that 11 people including Liu Moumou had defrauded 75960 yuan, and the facts of the crime amount were unclear and the evidence was insufficient. The weight of the goods involved is in doubt, and there is great uncertainty in the determination of the amount of crime. The investigation organ in this case weighed the difference between December 21, 2019 and December 22, 2019 as the number of crimes. However, the evidence in the volume cannot prove that the goods involved in the case maintained identity and fixity in multiple weighings, and cannot guarantee the certainty of the calculation of the amount involved when the weight difference cannot be confirmed to be certain. The testimony of the employees of the color printing company and the truck driver both confirmed that after the truck driver was intercepted and returned to the color printing company on December 21, 2019, the truck driver stopped for dinner, during which the vehicle involved was placed in the courtyard of the color printing company, and the rear truck driver parked the vehicle in front of the office building of the color printing company under the supervision of the staff of the color printing company. until the morning of December 22, 2019, 2019, the vehicle and goods involved were weighed for the third time. Therefore, from December 21, 2019 when the truck driver went out to eat to the morning of December 22, 2019, the vehicles and goods involved in the case were parked in the hospital of the victimized company and were left unattended. The color printing company did not provide surveillance video to confirm the storage of the vehicles and goods involved in the case. Although two employees confirmed that the goods in the vehicle had not been moved, there was no objective evidence to support it. In addition, the two witnesses are employees of the victimized company and have an interest in the case. Their testimony is highly subjective, and their objectivity and authenticity are in doubt. Therefore, the facts of the determination of the amount of the crime are unclear and the evidence is insufficient. If reasonable doubt cannot be ruled out, the evidence is in doubt, and an explanation should be made in favor of the defendant. It is suggested that Liu Moumou should not be prosecuted. 4. the legal provisions of "no prosecution in doubt" Doubt not to prosecute means that the procuratorial organ may make a decision not to prosecute if it still considers that the evidence is insufficient and does not meet the conditions for prosecution after supplementary investigation. Article 175, paragraph 4, of the Criminal procedure Law stipulates that if the people's Procuratorate still considers that the evidence is insufficient and does not meet the conditions for prosecution for the second supplementary investigation, it shall make a decision not to prosecute. After two supplementary investigations, the case has one of the following circumstances. If it cannot be determined that the criminal suspect constitutes a crime and needs to be investigated for criminal responsibility, it is insufficient evidence and does not meet the conditions for prosecution. 1. The evidence based on which the verdict is in doubt and cannot be verified. 2. The facts of the constituent elements of the crime lack the necessary evidence to prove it. Contradictions between the evidences cannot be reasonably excluded. 4. The conclusion based on the evidence has other possibilities and cannot be ruled out.

2022-04-18

How to identify the use of obscene videos to solicit customers to sell products?

Brief of the case During the period from September 26, 2017 to March 27, 2018, in order to promote the male health products operated by his WeChat circle of friends, Zhang Moumou successively established WeChat chat groups named "XXX Leisure Entertainment Group 1 (Group Plus Group Leader)", "XXX Leisure Entertainment Group 2 (Group Plus Group Leader)" and "XXX Leisure Entertainment Group 3 Group Plus Group Leader/No Words. Later, in order to increase his popularity, Zhang Moumou forwarded obscene videos and links in the group. After identification, 400 videos forwarded by Zhang moumou in "group 1 of so-and-so leisure entertainment (group 1 plus group owner)" are obscene articles, 344 videos forwarded in "group 2 of so-and-so leisure entertainment (group 2 plus group owner)" are obscene articles, and 341 videos forwarded in "group 3 of so-and-so leisure entertainment plus group owner/forbidden words" are obscene articles. After the case, the procuratorate of first instance prosecuted the case to the court on suspicion of spreading obscene materials for profit. After trial, the court of first instance held that Zhang was not subjectively profit-making, so his behavior did not constitute the crime of spreading obscene materials for profit, but constituted the crime of spreading obscene materials. Zhang was sentenced to one year and six months in prison. After the judgment of the first instance, the procuratorate filed a protest, believing that the purpose of profit-making required by the crime of spreading obscene articles includes not only direct profit-making through the dissemination of obscene articles themselves, but also indirect profit-making by means of the dissemination of obscene articles. Therefore, the defendant Zhang Qiuying subjectively has the purpose of making profits and should be recognized as the crime of spreading obscene articles for profit. The original judgment made improper restrictive interpretation of "profit, it is wrong to apply the law and the sentence is too light. The facts and evidence found by the court of second instance were the same as those of the court of first instance, but it adopted the protest opinion of the procuratorate and commuted Zhang to the crime of spreading obscene materials for profit, sentenced to three years' imprisonment and fined 5000 yuan. Focus Issues Zhang Moumou's use of obscene materials to attract customers and promote products can be recognized as the crime of spreading obscene materials for profit. legal analysis The main difference between the crime of spreading obscene materials for profit and the crime of spreading obscene materials is that the former requires the purpose of making profits, while the latter does not. In this case, in order to attract customers and sell male health products, Zhang Moumou posted obscene video links in the WeChat group. Regarding this behavior of using obscene materials to promote legal products, whether it constitutes the crime of spreading obscene materials for profit or the crime of spreading obscene materials, in judicial practice There is controversy. In the cases retrieved by the author, some courts have determined that this kind of behavior belongs to commercial drainage, and the intention is to increase attention. The act of spreading obscene videos does not bring benefits to the perpetrator, so it does not meet the crime of spreading obscene materials for profit. The standard of "profit-making. Judgments that hold this view are: jiang mouyang's case of spreading obscene articles [case number (2019) Zhejiang 0624 punishment no 211], Xiang mourong's case of spreading obscene articles [case number (2018) Zhejiang 0523 punishment no 191], Xie moujia, Liu mou's case of spreading obscene articles [case number (2017) Ji 1181 punishment no 71], Jiang moujuan's case of spreading obscene articles [case number (2018) Zhejiang 0881 no. 238 at the beginning of punishment]]. However, some courts hold that the "profit-making purpose" in the crime of spreading obscene materials includes not only the direct profit by spreading obscene materials, but also the indirect profit by means of spreading obscene materials. The dissemination of obscene materials by the perpetrator is a means to increase product attention and promote products. It is an indirect profit by means of disseminating obscene materials. In addition to this view held by the court of second instance in this case, Zhang moujuan, Zhang mouzhu and others also held this view in the case of making, copying, publishing, selling and spreading obscene articles for profit [case number (2019) zhe 10 punishment final 753]. The author believes that the actor uses obscene materials to attract customers and then sell products, which can not be regarded as the "profit-making" plot in the crime of spreading obscene materials for profit, but can only constitute the crime of spreading obscene materials. The specific reasons are as follows: The use of obscene videos by 1. to attract customers and then sell products for profit does not belong to the situation of using the Internet to spread obscene materials for profit as stipulated in legislation and judicial interpretations. The crime of obscene materials corrupts the social atmosphere, corrupts people's soul, and induces other crimes. Therefore, the criminal law of our country has been increasing its crackdown. Article 170 of the 1979 Criminal Law stipulates that "whoever produces or sells pornographic books or paintings for the purpose of profit shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and may also be fined". At that time, the crime of this article was the crime of making and selling obscene books and paintings. The law did not provide for the production and sale of obscene materials other than obscene books and paintings, and other acts related to obscene materials. Article 2 of the Decision of the Standing Committee of the National People's Congress on Punishing Criminals Who Smuggling, Producing, Selling or Disseminating Obscene Articles (hereinafter referred to as the Decision) of December 28, 1990 stipulates: Whoever, for the purpose of making profits, ...... sells obscene articles shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be sentenced to a fine or confiscation of property. Article 8 of the "Decision" defines obscene materials as "books, periodicals, films, video tapes, audio tapes, pictures and other obscene materials that specifically depict sexual behavior or explicitly promote pornography". The "Decision" changed the object of the crime of making and selling pornographic books and paintings in Article 170 of the 1979 Criminal Law from the original pornographic books and paintings to obscene books, films, video tapes, audio tapes, pictures or other obscene materials. The statutory maximum penalty has also been increased from the original three-year fixed-term imprisonment to life imprisonment, and the provisions on unit crimes have been increased, which has greatly increased the punishment for such crimes. On the basis of the comprehensive absorption of the "Decision" in the Criminal Law of 1997, a crime of organizing obscene performances was added, which also demonstrated the determination of our government to punish the crime of obscene materials. However, in 1997, the criminal law did not specify the standard of "profit-making" when amending the criminal object and sentence of the crime of spreading obscene materials for profit. Until 2004, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases Using the Internet, Mobile Communication Terminals, and Voice Stations to Make, Copy, Publish, Sell, and Disseminate Obscene Electronic Information" (hereinafter referred to as "Interpretation"). Article 1 of the "Interpretation" clearly stipulates: "For the purpose of making profits, those who use the Internet or mobile communication terminals to produce, copy, publish, sell and disseminate obscene electronic information, publish, sell and disseminate obscene electronic information by means of membership system, with more than 200 registered members, or use obscene electronic information to collect advertising fees, membership registration fees or other fees, with illegal gains of more than 10000 yuan, Convicted and punished for the crime of making, copying, publishing, selling or disseminating obscene articles for profit." This provision confirms at the level of judicial interpretation that the dissemination of obscene electronic information for profit includes both direct and indirect profit-making. Among them, direct profit-making means that as long as the perpetrator completes the crime of spreading obscene materials, he can directly obtain illegal profits. The specific manifestations are as follows: first, the perpetrator directly disseminates obscene electronic information through the website to obtain high network fees or short message fees; second, the user registers to join the obscene website and becomes a member through payment to watch or obtain obscene information. Indirect profit-making means that after the perpetrator has completed the criminal act of spreading obscene materials, it is necessary for the perpetrator or a third party to carry out other acts in order to obtain profits. Indirect profit-making is a newer and more popular way of making profits, mainly by providing free obscene information files to attract network users, increase the click-through rate of the website, and improve the popularity of the website, so as to attract advertisers and obtain high advertising fees. Different from the traditional direct profit-making method, the benefits obtained by indirect profit-making do not come directly from obscene materials, but from commercial advertising revenue paid by third parties. The spread of obscene materials plays a role in promoting the generation of benefits. In this case, Zhang Moumou posted obscene video links in multiple WeChat groups he formed, with the intention of increasing popularity and increasing attention to the male health products he sold, thereby creating business opportunities for the sale of legal products and increasing the probability of transactions. The behavior itself did not directly charge the members of the group, nor did it earn high advertising fees. The key to Zhang's profit is the profit from the sale of male health products, which is obviously different from the profit-making method identified in the 2004 interpretation. 2., according to the principle of adaptation of crime, responsibility and punishment, Zhang's behavior should not be identified as the crime of spreading obscene materials for profit. According to the provisions of Article 364 of the Criminal Law, those who spread obscene materials shall be sentenced to a maximum of two years' imprisonment without a fine. As for the crime of spreading obscene materials for profit, because it has the subjective purpose of "making profits", the social harmfulness of its behavior is obviously greater than that of simple communication, and the criminal law has obviously cracked down on it. According to the provisions of Article 363 of the Criminal Law, the legal maximum penalty for the crime of spreading obscene materials for profit can be up to life imprisonment, and at the same time a fine or confiscation of property. It can be seen that whether a certain act of spreading obscene materials can be recognized as having a profit-making purpose becomes the key to determine what kind of crime and what kind of legal punishment is applicable. In this case, Zhang Moumou's use of obscene materials to solicit customers to sell products does not belong to the profit-making situation expressly stipulated in the 2004 Interpretation. Whether it can be recognized as other indirect profit-making methods requires the judge to conduct justice on the "profit-making" plot. Interpretation. According to the requirements of the principle of adaptation of crime and punishment, when we interpret the terms of a crime, we need to consider the statutory penalty stipulated in the law and the severity of the sentence that may eventually be pronounced according to this law, so that the conclusion of the interpretation conforms to the principle of adaptation of crime and punishment. The crime of spreading obscene materials for profit is only because it needs to be "for profit" in the constituent elements, and the statutory penalty is far more important than the crime of spreading obscene materials. For this reason, we should strictly interpret the "profit-making" plot, so as to exclude those minor acts of spreading obscene materials for indirect profit from the crime. The modesty of criminal law is one of its fundamental principles, and penalties can only be used if they are forced to do so, and those who can use lighter penalties should not be sentenced to heavier penalties. Judging from the provisions of the "Interpretation" in 2004, the "profit-making" of the dissemination of obscene materials on the Internet mainly includes two ways: directly charging service fees for the dissemination of obscene materials, and indirectly earning high advertising fees through websites or web pages. Either way, the interests obtained by the perpetrator come from the obscene electronic information or the act of spreading obscene electronic information itself. There is a direct and inevitable causal relationship between the way of making profits and the act of spreading obscene electronic information. In this case, Zhang Moumou, as a micro-trader, set up a WeChat group to continuously add people to the group and publish obscene video links in the WeChat group for group members to browse. The purpose is to expand the audience of the goods sold, increase trading opportunities and increase the sales volume of the goods. In other words, Zhang's publication of obscene materials in WeChat groups does not necessarily lead to an increase in the sales of male health products he sells. Zhang's final benefit comes from the male health products sold, not the obscene materials themselves or the act of spreading obscene materials. There is no direct and inevitable causal relationship between this profit-making method and the act of spreading obscene materials. In addition, in the 1. second instance of this case, the public prosecution organ did not provide evidence to confirm Zhang's actual profit. However, Zhang Moumou used obscene materials in the WeChat group to solicit customers to sell products. The court of first instance found that it constituted the crime of spreading obscene materials and sentenced him to one year and six months. The court of second instance adopted the protest opinion of the procuratorate and held that it constituted the crime of spreading obscene materials for profit, and sentenced Zhang to three years' imprisonment and a fine of 5000 yuan. The different determinations of the same facts by the court of first and second instance made Zhang's sentence very different, which obviously violated the principle of adaptation of crime, responsibility and punishment and the modesty of criminal law. Therefore, the author believes that in the case of Zhang Moumou using obscene videos to solicit customers to promote products, the court of first instance determined that the behavior only constituted the crime of spreading obscene materials. The facts were found to be correct and the applicable law was accurate. Zhang Moumou's judgment on the court of first instance It is also recognized. The court of second instance adopted the protest opinion of the procuratorate to change the crime, believing that Zhang's behavior was an indirect profit-making situation, and then found him guilty of the crime of spreading obscene materials for profit, and sentenced him to three years' imprisonment and a fine of 5000 yuan. The judgment thinking and determination logic of the court of second instance are obviously contrary to the spirit of the 2004 Interpretation, and also violate the principle of consistency of crime, responsibility and punishment and the principle of modesty of punishment, which is an error in the application of law.

2022-04-18

Invitation Letter | Invitation Letter for "Zhongcheng Qingtai Legal Lecture Hall"

In order to improve the quality of public business training of law firms, Zhongcheng Qingtai Law Research Institute has opened the "Zhongcheng Qingtai Law Lecture Hall" since this year ". The "Zhongcheng Qingtai Law Lecture Hall" will continuously and irregularly invite well-known professors and experts as keynote speakers to expand the legal vision, share academic frontiers and hot information, and explain difficult issues in legal practice for all lawyers of Zhongcheng Qingtai General and Branch. In the Supreme People's Court issued the "on the application."<中华人民共和国民法典>In order to help all lawyers fully understand and correctly apply the Civil Code and the judicial interpretation, Zhongcheng Qingtai Law Research Institute invited Professor Zhang Haiyan from the Law School of Shandong University as the first speaker of the "Zhongcheng Qingtai Law Lecture Hall. The training matters are hereby notified as follows: time, place April 24, 2022 (Sunday) 8:45-12:00 The venue is located in the large conference room on the 55th floor of China Resources Building, 11111 Jingshi Road, Jinan City. 2 Lecture Topic Basic Law and Lawyer Practice of the Civil Code-General Provisions Three keynote speakers Zhang Haiyan, female, doctor of law of Renmin University of China, professor and doctoral supervisor of Law School of Shandong University, top ten young and middle-aged jurists of the third session of Shandong Province, member of Shandong political and legal think tank, and the second batch of researchers of the Supreme people's Court. She held a post in Jinan Intermediate people's Court in 2015. He is also the president of the Civil and Commercial Law Research Association of Shandong Law Society, the vice president of Jinan Law Society, the director of China Civil Procedure Law Society, the vice president of Shandong Enterprise Commercial Law Research Association, the executive director of Shandong Litigation Law Research Association, and the arbitrator of Qingdao Arbitration Commission. The research direction is civil law and civil procedure law, published more than 50 academic journal papers, published 3 academic monographs, edited and participated in the compilation of nearly 10 teaching materials, presided over more than 20 scientific research projects at or above the provincial and ministerial level, such as the National Social Science and the Ministry of Education, and won more than 20 scientific research awards at or above the department level. He is also the legal adviser and lecturer of legal courses for many governments and enterprises in China. Four participants 1. All lawyers, paralegals and interns of Zhongcheng Qingtai General Office and Branch Office; 2. People from all walks of life who are concerned about the topic of this lecture (online participation only). 5 Ways of Participation Due to epidemic prevention and control, offline site restrictions and other reasons, this training adopts a combination of offline and online: Off-line mode: large conference room, 55th floor, China Resources Building, 11111 Jingshi Road, Lixia District, Jinan City;</中华人民共和国民法典>

2022-04-18

Shandong Zhongcheng Qingtai Law Firm Signed Strategic Cooperation Agreement with Shandong Architectural Glass and Industrial Glass Association

On April 16, 2022, Shandong Zhongcheng Qingtai Law firm signed a strategic cooperation agreement with Shandong Architectural Glass and Industrial Glass Association. Lin Chenglun, executive vice president and legal representative of Shandong Architectural Glass and Industrial Glass Association, Dong Honglin, secretary general, Wei Qiang, vice president, Jiao Yonggang, executive secretary, Yang Hao, consultant of the association, Li Hongli, director of the secretariat, du Wentang, senior partner of Zhongcheng Qingtai, Zhang Kai, and Sun Zilu, Cheng Wanqing and other lawyers attended the signing ceremony. Shandong Province is a major domestic glass production, processing, and sales province. There are nearly a thousand glass processing enterprises in the province. The variety of glass raw sheets and processed products is rich and the quality is good. It has formed Jinan, Weifang, Qingdao, Tengzhou and many other characteristics. Industrial gathering place. Zhongcheng Qingtai will take this strategic cooperation as an opportunity, combined with the beneficial experience of serving construction real estate enterprises for many years, as well as the resource advantages of precipitated construction real estate enterprises, according to the industry characteristics and actual needs of glass associations and glass processing enterprises, constantly optimize the legal service model, research and develop legal service products, and provide more professional and high-quality legal services for the building materials industry and related industrial chains.

2022-04-17

Real estate perspective: "Jinan City Property Management Regulations" highlights of the interpretation.

Introduction The "Jinan City Property Management Regulations" was adopted by the 25th meeting of the Standing Committee of the 17th People's Congress of Jinan City on February 24, 2022, and was approved by the 13th Shandong Province on March 30, 2022 Approved at the 34th meeting of the Standing Committee of the People's Congress, it has now been promulgated and will come into force on May 1, 2022. The "Jinan City Property Management Regulations" (hereinafter referred to as the "Regulations") is not a sewing and mending of the "Jinan City Property Management Measures" (hereinafter referred to as the "Measures"), but in the "the People's Republic of China Civil Code" and the State Council "Property Management Regulations" Under the guidance of the "Shandong Province Property Management Regulations", combined with the actual situation of Jinan City, a new regulation has been made for the property management of Jinan City. The "Regulations" have strong operability and respond to many problems encountered in the previous property management practice. The highlights of the "Regulations" can be briefly summarized as "nine more": 1., the establishment process of the industry committee is more specific. 2. to improve the pre-and after-sales service system. The 3. is more standardized on the collection of property fees. 4. pay more attention to the privacy protection of the owners 5. transition and convergence between the old and new properties is smoother. 6. prohibitions on property use are more detailed 7. management of garbage classification is more stringent 8. management of house decoration more clearly 9. more comprehensive management of parking spaces (garages) The specific interpretation is as follows: 1., the establishment process of the industry committee is more specific. Regarding the establishment process of the owners' meeting and the owners' committee, the "Regulations" stipulate that the owners shall first apply for the establishment of the owners' meeting, and then the subdistrict office shall establish the owners' meeting preparatory group, and then establish the owners' meeting, and finally establish the owners' committee. Specifically, in a property management area, the area of the exclusive part that has been delivered to the owner accounts for more than 50%; the number of owners who have been delivered accounts for more than 50%; two years have passed since the date of delivery of the first set of property to the owner and the owner has been delivered If the number of owners accounts for more than 25%, the owner or the construction unit may apply to the sub-district office or the town people's government for the establishment of the owners. The subdistrict office (township people's government) shall be responsible for organizing and guiding the establishment of the preparatory group for the first owners' meeting within 60 days from the date of receiving the written application from the owners for the preparation of the owners' meeting. The leader of the preparatory group shall be appointed by the sub district office and the town people's government, and the other members shall be composed of representatives of the owners, residents' committees, construction units and early stage property service personnel, among which the owners' representatives shall not be less than 1/2 of the total number of the preparatory group. If the community encounters "the conditions for the establishment of the owners' assembly, the owners' assembly meeting has been organized twice but the owners' committee has not been elected; the owners' committee needs to be re-elected due to one of the circumstances such as the expiration of the term of office or the vacancy of members, or being dismissed, but the new owners' committee cannot be elected after being organized and guided by the sub-district office and the town people's government twice, the temporary property management committee shall be established by the sub-district office and the town people's government. the term of office of the provisional estate management committee shall not exceed two years. During the term of office, at least one meeting of the owners' assembly shall be organized every year to promote the establishment of the owners' assembly and elect the owners' committee. If the establishment of the owners' assembly or the election of the owners' committee is not promoted at the expiration of the time limit, the street office and the town people's government shall re-establish the temporary property management committee. Refer to Articles 14 to 45 of the Regulations. 2. to improve the pre-and after-sales service system. In real life, due to the problems left over from real estate development, such as housing quality warranty, transfer of water, electricity and heating facilities, defects in supporting facilities and equipment in the property service area, and non-standard property inspection, many incidents of collective rights protection of owners have been triggered, which not only damages the legitimate rights and interests of owners, but also brings a lot of burden to social governance. In view of the above situation, the Regulations are divided into registration in property management areas. Preliminary property service personnel bidding filing and bidding activities supervision; Preliminary property service contract filing; Determination of the charging standard for preliminary property management fees; The formulation of temporary property management regulations in the early stage; Clear provisions have been made on the inspection of property undertaking, the transfer of property service rooms and data, the transfer of water, electricity and heating facilities, and the establishment and improvement of after-sales maintenance system for newly-built properties. Through the complete system remodeling and design, the pre-service system has been improved and the after-sales service system has been established. Among them, for the after-sales service system, the regulations specifically stipulate that the construction unit should set up a special housing after-sales service center in the property management area to publicize the name of the maintenance unit, the maintenance contact person and the maintenance telephone number, which is used to deal with the problems left over from the construction and accept the owner's repair application, and bear the property warranty responsibility in accordance with the relevant provisions of the state, province and city. The construction unit shall give a reply within three days from the date of receiving the warranty claim, and complete the maintenance within 30 days. At the same time, in order to ensure the actual operation of the after-sales maintenance service system and ensure that the relevant rights and interests of the owners are protected, the Regulations also stipulate that if the construction unit fails to perform the warranty obligations in time during the quality warranty period, the owner has the right to report to the city, district/county housing And the competent department of urban and rural construction can also file a lawsuit in the people's court. Refer to Articles 10, 11, 46, 47, 48, 49, 50, 51 and 79 of the Regulations. The 3. is more standardized on the collection of property fees. In the past, when some property service providers collected property fees, they often used methods such as "cutting off water and electricity" and "restricting the access of owners and their vehicles" to collect them, which caused widespread dissatisfaction and opposition from owners. In this regard, the "Regulations" clearly prohibit property service providers from using methods such as interrupting water supply, power supply, gas supply, heating, or restricting the entry and exit of owners and their vehicles to collect property fees. For property service providers who violate this regulation and collect property fees in the aforementioned manner, they shall be ordered to make corrections within a time limit and be fined not less than 10,000 yuan but not more than 50,000 yuan. At the same time, in order to ensure that property service providers normally collect property fees to carry out related property services, the "Regulations" stipulate that owners should pay property fees in full and on time in accordance with the payment methods and standards agreed in the property service contract. If the owner fails to pay the property fee within the time limit, the property service provider may urge him to pay within a reasonable period of time; if he refuses to pay, the property service provider may apply for arbitration or file a lawsuit in accordance with the law. Refer to Articles 57, 62 and 88 of the Regulations. 4. pay more attention to the privacy protection of the owners At present, more and more communities promote information and intelligent management, and use new technologies to carry out property service related activities. Such as the collection of the owner's face, fingerprints and other biometric information as a means of providing property services, but the risk of the owner's information being leaked and resold has also become a problem that has to be faced. For the purpose of protecting the personal information of the owners, the regulations clearly stipulate that the property service providers can use information and intelligent technology to carry out property service related activities on the premise of ensuring the informed consent of the owners, but they shall not use biometric technologies such as face recognition and fingerprint as the only service means. At the same time, the Regulations also clearly stipulate that property service providers shall not illegally collect, use, transmit, or buy or sell the personal information of the owners obtained in the property service activities, and when the service is terminated and withdrawn, they shall not refuse to hand over the archives and materials shared by the owners. Items, funds, etc. The regulations for violations of the above provisions are also clearly reflected in the "Regulations", clarifying the legal responsibility for violations of the above provisions, which is conducive to the protection of the privacy and personal information of the owners. The Regulations stipulate that misappropriating, embezzling, or disposing of the owners' common property without authorization, tampering with, concealing, or destroying the documents and articles in custody, illegally collecting, using, transmitting, buying and selling the owners' personal information obtained in the property service activities, or infringing on the legitimate rights and interests of the owners, Those who cause losses to the owners shall bear the corresponding liability for compensation; if a crime is constituted, criminal responsibility shall be investigated according to law. Refer to Articles 57, 61 and 91 of the Regulations. 5. transition and convergence between the old and new properties is smoother. In real life, the handover between the old and new properties is often accompanied by contradictions and conflicts. The old properties are unwilling to withdraw and refuse to handle the handover. Problems still exist such as the entry of new properties is blocked and property services cannot be carried out. In addition to stipulating and improving the handover process of property service projects, the current "Regulations" also specify that the original property shall not refuse to handle the handover on the grounds that the owner owes the property fee or disagrees with the joint decision of the owner, and shall not obstruct, interfere or hinder the newly selected property service personnel according to law from providing services for any reason. In the face of the situation that the original property ignores the above provisions and refuses to withdraw from the site, the owners' committee or the owner may report to the sub district office, the town people's government, the district/county housing and urban and rural construction department, request assistance from the public security organ of the jurisdiction or file a lawsuit with the people's court according to law, so as to safeguard their relevant rights and interests. At the same time, the "Regulations" also innovatively introduced "emergency property service personnel" to deal with the sudden loss of management caused by the property service personnel terminating the property service without authorization in violation of the contract, and to protect the basic life of the owners. When the state of loss of management actually occurs, the sub-district office and the town people's government shall organize and determine emergency property service personnel to provide emergency services such as garbage removal and elevator operation to maintain the basic living services of the owners. During the emergency property service period, the sub-district office and the town people's government shall organize the owners to jointly decide to select and hire new property service personnel, and at the same time coordinate the work handover between the new property service personnel and the emergency property service personnel. Refer to Articles 64, 65 and 66 of the Regulations. 6. prohibitions on property use are more detailed In the process of using the property, it is inevitable that some owners, property users or property service providers will not abide by the provisions of laws, regulations and rules and the (temporary) management regulations, thus disturbing the order of the property management area and interfering with the normal life of others. The original "Measures" only stipulated that unauthorized reconstruction and occupation of public parts are prohibited. Damage to the load-bearing structure of the house; Illegal construction of buildings and structures and other acts that have a significant adverse impact on the property management area, but ignore such acts as pets and noise disturbing neighbors; Parking at will in public areas; Private wire charging for electric vehicles and other problems that are very common in life but obviously interfere with the normal life of others. According to the actual problems encountered in Jinan's property management, the current "Regulations" add that it is strictly prohibited to throw articles from buildings (structures). Raising animals to interfere with the normal life of others; Noise from social life interferes with the normal life of others; Parking motorcycles, electric vehicles, bicycles or private wires to charge electric vehicles in shared corridors, hallways, stairwells, corridors, safety exits and other locations. At the same time, the Regulations clarify the responsible departments and units for handling the above-mentioned situations, establish a complaint and report acceptance system, and publish the complaint telephone number in the property management area, and promptly accept and investigate and deal with complaints and reports. Any organization or individual has the right to complain about this. Report. On the whole, the "Regulations" are more specific and closer to reality in the prohibition of property use. At the same time, it clarifies the responsible units for relevant situations, which is conducive to ensuring the order of the property management area and the normal life of the owners. Refer to articles 67 and 83 of the regulations. 7. management of garbage classification is more stringent As a way to deal with a large amount of domestic waste generated every day, garbage classification has important practical significance for the realization of waste reduction, resource utilization and harmlessness. Subject to the restrictions of the times environment, the original "measures" did not make relevant provisions on garbage classification. However, in recent years, more and more attention has been paid to garbage classification in many places across the country, and relevant regulations have been gradually improved. The new "Regulations" clearly stipulate that owners, property users, and property service providers shall not classify and put domestic waste in accordance with regulations. As for decoration waste, the "Regulations" more clearly pointed out that it should be collected in bags, not mixed with domestic waste, and should be put into the property service person or the location designated by the residents committee. At the same time, the "Regulations" clearly stipulate in the supervision and management part that the comprehensive administrative law enforcement department has the responsibility to investigate and deal with illegal acts such as failing to implement garbage classification management in accordance with the regulations. Thus, the Regulations for the management of garbage classification, compared to the past significantly more stringent. Refer to articles 67, 68 and 83 of the regulations. 8. management of house decoration more clearly The original "Measures" compulsorily stipulated that a decoration service agreement should be signed before decorating a house, that is, the owner and property user should sign a decoration service agreement with the property service company before the start of residential decoration. If no decoration service agreement is signed, the property service enterprise may restrict the construction personnel from entering the property management area. Now the "Regulations" for the decoration of houses, no longer mandatory to sign a decoration agreement. The owner and the property user are required to inform the property service person in advance before the decoration (if there is no property service person, inform the residents committee where the property is located), and the property service person shall inform the owner and the property user of the prohibited behaviors and precautions in the decoration. At the same time, if the owner and the property user need to consult the structure diagram of the building (structure), electrical and other pipeline circuit diagrams, the property service person shall provide it. As for decoration waste, the regulations clearly stipulate that it should be collected in bags, not mixed with domestic waste, and needs to be put into the designated place of the property service person or the residents committee. Refer to Article 68 of the Regulations. 9. more comprehensive management of parking spaces (garages) Parking space related problems are long-standing problems in the property management area; developers "only sell but not rent" parking spaces; property restrictions on owners to install new energy vehicle charging piles and other problems are common in life. The "Regulations" clearly stipulate the management of parking spaces (warehouses) and the corresponding legal consequences, and at the same time solve a series of practical problems. 1. For the rental and sale of parking spaces (warehouses). The "Regulations" stipulate that in the residential property management area, parking spaces (warehouses) should first meet the needs of the owners, and the construction unit should sell, lease, and give away the parking spaces (warehouses) to the owners in the property management area. If there is still a spare space after meeting the needs of the owners, the construction unit may lease it to other people outside the property management area, and the term of each lease shall not exceed six months. In short, the "Regulations" clarify that parking spaces (warehouses) cannot be "sold but not rented", and limit the lease period of parking spaces, so as to protect the owners' demand for parking spaces. 2, for the parking space purchase restriction problem. The Regulations stipulate that if the number of parking spaces (warehouses) is less than or equal to the number of houses in the property management area, a household owner can purchase, lease or give a parking space at most; if the number of parking spaces (warehouses) exceeds the number of houses in the property management area, An owner can buy one more or give one more. To limit the way to protect the owner's demand for parking spaces. 3. Publicity and registration of parking spaces. The Regulations provide that the construction of a single

2022-04-16