Ms. Zhao Yan, Deputy Director of Qilu Evening News Video News Center and Deputy Director of Video Center, visited Zhongcheng Qingtai Jinan for exchange

On March 22, 2022, Ms. Zhao Yan, deputy director of Qilu Evening News Video News Center and deputy director of Video Center, visited Zhongcheng Qingtai Jinan Institute. Cheng Shoufa, deputy director of Jinan Institute, Wang Yan, director of real estate department of FTZ Institute, and Wei Yan, deputy director of Comprehensive Security Center, warmly received the visiting guests. Director Cheng Shoufa accompanied Ms. Zhao Yan and her party to visit the office environment of the law firm and introduced the basic information of the law firm's various functional areas, performance honors, publicity work, etc. During the discussion, Ms. Zhao Yan gave a detailed introduction to the operation of Qilu Evening News's video and its outstanding achievements in the field of short news videos. Director Cheng Shoufa also specifically introduced the professional and scale advantages of Zhongcheng Qingtai lawyers in the field of legal services. After the meeting, the two sides reached a consensus to strengthen exchanges, mutual support and in-depth cooperation in news media operations, legal service marketing and other fields.

2022-03-22

Viewpoint | Determination of "Trajectory" in the Crime of Infringing Citizens' Personal Information

1. Criminal Law and Related Judicial Interpretations on the Crime of Infringing Citizens' Personal Information and "Trajectory" Provisions and Legislative Intent 1. Article 253 of the the People's Republic of China Criminal Law stipulates that anyone who, in violation of relevant state regulations, sells or provides citizens' personal information to others, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or separately be fined; if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined. Whoever, in violation of the relevant provisions of the State, sells or provides to others the personal information of citizens obtained in the course of performing their duties or providing services shall be given a heavier punishment in accordance with the provisions of the preceding paragraph. Whoever steals or unlawfully obtains the personal information of citizens by other means shall be punished in accordance with the provisions of the first paragraph. Where a unit commits the crimes mentioned in the preceding three paragraphs, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished in accordance with the provisions of those paragraphs. 2. Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringing Citizens' Personal Information stipulates that "citizens' personal information" refers to all kinds of information recorded electronically or in combination with other information that can identify the identity of a specific natural person or reflect the activities of a specific natural person, including name, ID number, communication contact information, address, account password, property status, whereabouts, etc. Article 5, paragraph 1, item (III), stipulates that those who illegally obtain, sell or provide more than 50 articles of whereabouts information, communication content, credit information and property information shall be deemed as "serious circumstances" as stipulated in Article 253 of the Criminal Law; the second paragraph stipulates that the acts specified in the preceding paragraph shall be carried out, if the quantity or amount reaches more than ten times the standards specified in subparagraphs 3 to 8 of the preceding paragraph, it shall be deemed as "the circumstances are particularly serious" as stipulated in the first paragraph of Article 253-1 of the Criminal Law ". 3. The track of whereabouts belongs to highly sensitive information. The crime of infringing on citizens' personal information sets the threshold of "track of whereabouts" lower than the conviction threshold of ordinary citizens' personal information. This article stipulates that the determination standard of "track of whereabouts" has a great impact on the conviction and sentencing of such cases. The purpose of setting a separate conviction standard for the track of whereabouts is to strengthen the protection of citizens' personal and property safety, only when the complete travel route of the victim is known can it pose a major threat to his person and property, and only knowing the real-time point can not reach the degree of harm of obtaining the "track. According to a single point, it is impossible to reflect the final location of the victim. Only by gathering the points on a route can we get complete information about the place and destination of the victim. Obtaining complete travel information may cause damage to the victim's personal and property, and obtaining a single point cannot reach the corresponding degree of harm. If only the number of points is directly used as the number of tracks for conviction and sentencing, it violates the principle of criminal responsibility, and violates the original intention of the legislation and judicial interpretation of this crime. The 2. "trajectory" should refer to a "line" dynamic trajectory consisting of a start point and an end point rather than a static "point", which is in line with the general public's perception. When laws, regulations and judicial interpretations do not explain the meaning of "whereabouts", stricter standards should be adopted compared with general personal information on the issue of what is "whereabouts" and how to determine "numbers. According to the principle of modesty and restraint of criminal law, comprehensive consideration should be made from the literary interpretation of "whereabouts" and the general understanding of the public in daily life practice. "Trajectory" refers to the traces left by the action, and "trajectory" refers to the total path through which a point moves in space. According to the text, a "track" should refer to a complete action path formed by a point moving from the starting point to the end point in space. "Trajectory" should refer to a linear dynamic trajectory with a start point and an end point, rather than a static real-time point of the victim. It is generally believed in 3. criminal law circles that "line" rather than "point" should be used as the standard for identifying "track". 1. Professor Zhang Mingkai's Criminal Law (Law Publishing House, 2021, p. 1202) believes that the trajectory information should have certain time and space characteristics, especially the starting point and the ending point, which should last for a period of time from the starting point to the ending point. However, even if the actor acquires the static real-time point, due to the extremely short time and the lag of the return information, it is too late to commit acts that infringe personal legal interests such as injury. 2. Professor Gao Fuping's article "Obtaining Tracing Trajectory and" Sentencing "published in Shanghai Legal Daily in 2017 pointed out that" Tracing Trajectory is the trajectory formed by people moving at different points in time and in different geographical locations. ". 3. Professor Wang Wenhua pointed out in his article "Criminal Law Protection of Citizens' Personal Information in the Internet Age" published in "People's Procuratorate" in 2017 that "personal information includes not only" identity information "but also" activity information "such as whereabouts, such as personal whereabouts information of citizens obtained after mobile phone positioning. The former is static information and the latter is dynamic information." According to the theoretical explanation, the "trace trajectory" should have the characteristics of continuity, dynamics and integrity, and the linear trajectory is more in line with the characteristics and connotation of the "trace trajectory" than the point positioning. The meaning of "trajectory" in other 4. departmental regulations and government working documents is linear dynamic trajectory. China's relevant laws and regulations related to the protection of personal information, government documents related to the new crown epidemic prevention, there are similar expressions of "whereabouts", which represents the general understanding of "whereabouts" by government agencies and the public, and can be used as a reference for the standard of "whereabouts" in the crime of infringing upon citizens' personal information. 1. According to the third paragraph of Article 26 of the Interim Measures for the Administration of Online Taxi Reservation Service, except for cooperating with state agencies to exercise supervision and inspection rights or criminal investigation rights in accordance with the law, the online car-hailing platform company shall not provide any third party with drivers. Personal information such as the names of drivers, drivers and passengers... travel routes. Among them, the dynamic "travel route" as a whole is identified as the personal information of the passenger. 2, during the new crown epidemic prevention and control in many places epidemic prevention and control headquarters, CDC issued the "trace trajectory investigation letter", which has a complete starting point, the end of the linear trajectory as the "trace trajectory" identification criteria. Among them, the "whereabouts track" is the information that can completely reflect the starting point, end point and important place of the party's journey, rather than the real-time point information of the individual. 5. jurisprudence has explicitly interpreted the "trajectory" as a "linear dynamic trajectory". 1. The criminal judgment (2020) No. 39 at the beginning of the punishment of Anhui 1182 issued by the people's Court of mingguang city, Anhui Province shows that in this case, the public prosecution organ accused the defendant of obtaining a total of 2356 pieces of information on the whereabouts of the victim, of which 2041 pieces of information are the repeated position information of the victim in a static state. In the judgment, the court deducted the above-mentioned information in the static state, and finally found that the defendant obtained the whereabouts and trajectory information of the victim as 323. 2. The (2019) Beijing 02 Criminal Final No. 59 Criminal Judgment issued by the Beijing Second Intermediate People's Court stated that the defendant in this case used his work to sell the citizen Didi Chuxing records obtained in the process of providing services for profit. Among them, "Didi Chuxing" record is a round-trip record of taking transportation. The court of first instance identified the "drop travel" record as "track information", and the court of second instance upheld the original judgment. 6. epilogue Based on the above analysis, we believe that the crime of infringing on citizens' personal information about "obtaining the number of tracks of others" should follow the general understanding of "tracks of tracks" and should not be based on static real-time points, but should be based on the number of linear dynamic tracks for conviction and sentencing.

2022-03-21

Examples of retrial | Can the parties apply for retrial and file a protest against the retrial judgment?

Brief description of the case In the case of a private lending dispute between Zhang and Zhao, Zhang lent ten million yuan to Zhao in 2012 without agreeing on interest. During the loan period, both parties paid interest at 20% of the annual interest rate. During the period, the two parties had other economic exchanges. In 2018, the two parties re-issued a debit note, recording that Zhang lent RMB 10 million to Zhao, with no agreed interest, and in actual performance, Zhao repaid a fixed amount of RMB to Zhang every month (for which the two parties are in dispute over whether the principal or interest of the repayment). After the dispute between the two sides, in 2020 Zhang as a creditor to the people's court to claim the remaining loan principal and interest. Zhao filed a counterclaim, requesting a judgment on Zhang's return of the over-paid loan and interest. After the case was heard by the 1. court of second instance, the court of second instance upheld the judgment of first instance and ordered the debtor Zhao to pay the remaining principal and interest of the loan. Zhao believes that the second trial judgment is wrong and applies to the court for a retrial. After accepting Zhao's application for retrial, the people's court rejected his application for retrial. Zhao still refused to accept the judgment of the second instance and applied to the people's Procuratorate for procuratorial supervision. The people's Procuratorate filed a protest with the court. After the retrial of the trial supervision procedure, the people's court revoked the judgment of the second instance and changed the judgment that Zhang returned the principal and interest of the overpaid loan to Zhao. Creditor Zhang is not satisfied with the retrial judgment. At this time, can Zhang apply to the court for retrial or protest to the people's procuratorate? Is there any other remedy? 1. in this case, Zhang cannot apply to the court for a retrial, nor can he apply to the procuratorate for a protest After the judgment of the second instance of the (I) comes into effect, the appellant, the appellee and other parties to the case have the right to apply for a retrial in accordance with the law for the judgment and ruling of the second instance that has taken effect. Both parties may have the right to apply for a retrial within the statutory time limit. If both parties apply for a retrial, the retrial court shall examine the case together and make a judgment. When one party applies for a retrial within the statutory period and the other party fails to apply for a retrial within the statutory period, its right to apply for a retrial has been extinguished due to the expiration of the statute of limitations. After the termination of the trial supervision procedure caused by one party's application for retrial, the procedural rights of all parties to apply for retrial against the legally effective second-instance judgment and ruling have been eliminated, and the other party will not reserve the right to apply for retrial to the retrial court for another time because the other party has not exercised the right to apply for retrial within the statutory period. Therefore, once the retrial judgment is made, neither party has the right to apply for retrial. Article 383 of the Interpretation of the Supreme People's Court of the (II) on the Application of the the People's Republic of China Civil Procedure Law (2020 Amendment) stipulates that "If a party applies for retrial under any of the following circumstances, the people's court shall not accept it: 1. The application is filed again after the application for retrial has been rejected; 2. An application for a retrial judgment or ruling; 3. The application is filed after the People's Procuratorate has made a decision not to submit a retrial procuratorial proposal or protest against the application of the party. Under the circumstances specified in items 1 and 2 of the preceding paragraph, the people's court shall inform the parties concerned that they may apply to the people's procuratorate for retrial procuratorial suggestions or protests, except for judgments and rulings made in retrial due to the people's procuratorate's retrial procuratorial suggestions or protests." The above provisions are the legal basis for the retrial judgment not to apply for retrial, nor to apply to the procuratorate to protest. Combined with this case, because Zhao was not satisfied with the judgment of the second instance, he applied to the court for retrial. After the people's court rejected his application for retrial, he applied to the people's Procuratorate for protest. The protest organ believes that there is an error in the judgment of the second instance, and after submitting a protest to the people's court, the people's court initiates the trial supervision procedure and changes the judgment. The respondent Zhang believes that the facts of the court of second instance are clear and the legal evidence is applicable. Zhang is not satisfied with the retrial judgment and cannot apply for retrial or apply to the procuratorate for protest. 2. on the way to initiate retrial proceedings ex officio The retrial procedure is an important way for the people's court to correct errors. The retrial procedure can be initiated on application, by the procuratorate, or ex officio. The method of initiation is different, and the trial supervision procedures applied are also different. Article 205 of the the People's Republic of China Civil Procedure Law (amended in 2021) stipulates that "if the presidents of the people's courts at all levels find that there are definite errors in the judgments, rulings or conciliation statements that have taken legal effect in their courts and believe that a retrial is necessary, they shall submit them to the adjudication committee for discussion and decision. If the Supreme People's Court finds that there is a definite error in a legally effective judgment, ruling or mediation statement of a local people's court at all levels, or a people's court at a higher level finds that there is a definite error in a legally effective judgment, ruling or mediation statement of a people's court at a lower level, it shall have the right to bring it up for trial or instruct a people's court at a lower level to retry". The provisions of this article are that the court initiates the retrial procedure according to its functions and powers. If the president of the court discovers a legally effective judgment, ruling or mediation statement and finds that there is a definite error, the president shall submit it to the members of the judicial committee for discussion and decision; if the people's court at a higher level finds that there is a definite error in a legally effective judgment, ruling or mediation statement of the people's court at a lower level, it shall have the right to bring the right to trial or instruct the people's court to retrial. Specifically in this case, the creditor Zhang is not satisfied with the retrial judgment made through the procuratorate's protest, and may not apply for retrial, nor may he apply for the procuratorate's protest. If the retrial judgment is indeed wrong, the president finds that the retrial procedure is initiated. In practice, the president finds that the retrial procedure is started. First, the parties concerned should submit the application form and relevant evidence. After the president of the court finds that there may be errors in the original effective judgment, he submits it to the trial committee for discussion. The trial committee decides that the retrial of the case is based on the trial supervision procedure, it is not an inevitable procedure, let alone a way to initiate a retrial based on the subjective judgment of the parties. Finally, if the parties are not satisfied with the effective judgment and want to start the trial supervision procedure through the president, how to submit the materials and in which way to receive the materials are not completely unified by the local courts.

2022-03-21

Lawyer Miao Zezhuang was invited to be interviewed by Jinan TV Station's "Traffic in Progress" program.

Recently, the Shandong province automobile consumption conference and the launching ceremony of "escort, car life" broadcast by Jinan TV's life channel "traffic in progress" program, lawyer Miao zezhuang of Jinan institute of zhongcheng qingtai was invited as a guest to be interviewed. Lawyer Miao Zezhuang gave suggestions on rights protection and risk prevention from the perspectives of consumers and car dealers on the issue of "delayed delivery of new car sales. From the perspective of consumers: First, it is recommended to clearly stipulate the delivery time and the corresponding liability for breach of contract in the car purchase contract. Second, in the event of a delay in delivery, rights can be defended through legal channels, such as litigation. Article 577 of the Civil Code clearly stipulates the remedies for liability for breach of contract. For example, consumers can require dealers to deliver the purchased vehicles as soon as possible, and at the same time demand compensation for certain liquidated damages or damages. For car dealers: First, it is recommended to operate with integrity to create a trustworthy brand; second, if the delivery time cannot be specified, the expected delivery time can be negotiated with consumers. Finally, the dealer can enter into an agreement with the upstream entity on deferred delivery to share the risk.

2022-03-21

Zhongcheng Qingtai Jinan Bankruptcy Reorganization Business Achieves Success Again Heze Guangyuan Copper Belt Co., Ltd. The merger and reorganization plan of three companies was approved by the court.

On March 12, 2022, the people's Court of Mudan District of Heze City ruled to approve the merger and reorganization plan of Heze Guangyuan Copper Belt Co., Ltd., Shandong Tianhe rolled copper foil Co., Ltd., and Heze Yuanhe Trading Co., Ltd., and terminate the merger and reorganization procedures of the three companies. Zhongcheng Qingtai Jinan served as the bankruptcy administrator of the three companies. Although they faced many difficulties in the process of merger and reorganization, the management team, under the coordination of Heze Local Financial Supervision and Administration Bureau and under the supervision of Mudan District people's Court, applied to the court for approval of the enterprise to continue production and operation to ensure the ideological stability of employees, On the other hand, actively use various resources to recruit investors, heze City Investment Holding Group Co., Ltd. was finally determined as the investor. In view of the interests of all parties, the management team actively did a good job of communication and coordination, relying on professional legal services and rich practical experience, properly handled the protection of creditors' interests, the protection of employees' rights and interests, the fuse of the guarantee chain, the tax treatment of investors' investment and other issues. After the second creditors' meeting was held, after deferred voting, the investor group, the specific property guarantee creditor's rights group, the tax creditor's rights group, the general creditor's rights group, and the employee creditor's rights group all voted to pass the "Heze Guangyuan Copper Belt Co., Ltd." The company's merger and reorganization plan (draft). The reorganization plan was approved by the People's Court of Mudan District, Heze City, and officially entered the implementation stage of the reorganization plan. As the first-level bankruptcy administrator of Shandong Higher People's Court, Zhongcheng Qingtai (Jinan) Law Firm has given full play to the service advantages of specialization, teamwork, and standardization, and has handled the bankruptcy reorganization cases of more than 100 companies. Accumulated rich experience and operating skills to save troubled companies, and the cases undertaken have been highly recognized by the courts, competent authorities, and debtors, it has made positive contributions to the implementation of the new development concept, the promotion of the transformation of new and old kinetic energy, and the promotion of high-quality economic development in Shandong Province.

2022-03-18

Lawyer Qu Mengyu was invited to participate in the legal training activities of "3.15 Consumer Rights Protection" for provincial enterprises.

On March 15, 2022, lawyer Qu Mengyu of Zhongcheng Qingtai Jinan Institute was invited to participate in the legal training activities of "3.15 Consumer Rights Protection" for provincial enterprises. The training was sponsored by the Shandong Provincial State-owned Assets Supervision and Administration Commission of the Communist Youth League and the Shandong Enterprise Youth Federation, and undertaken by Shandong Guohui Investment Holding Group. It aims to in-depth study and implement Xi Jinping's rule of law, strengthen the publicity and education of provincial enterprises, and guide the youth of provincial enterprises. Further enhance the awareness of the rule of law and the ability to safeguard rights. The training took the form of online "cloud classroom" and more than 1,000 people attended. In accordance with relevant laws and regulations such as the Consumer Rights Protection Law, the Food Safety Law, and the (I) of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Online Consumer Dispute Cases, Lawyer Qu Mengyu explained in simple terms from the legislative evolution, law application, important provisions, and typical Cases and hot topics, etc., had a full exchange with the participants and won unanimous praise.

2022-03-18

Point of View... Practical identification difficulties when committing rape.

Rape cases, which can be said to be the simplest and most complex type of cases, have always attracted public attention more easily than other cases. Say it is simple, because you know a little about wind and moon; Say it is complicated, because you don't understand other people's wind and moon. In such cases, in addition to the typical situation of obvious violence, coercion or other methods against women, in many cases, how to determine whether sexual behavior is against the will of women or violates women's sexual autonomy is one of the most difficult proof problems in judicial practice. The crime of rape in our country is defined as: violence, coercion or other means, against the will of women, forced to have sexual intercourse with them. The most important point of knowledge in this definition is against the will of women. What is meant by going against a woman's will? Obviously, it's not easy to define. This is not only because women's will belongs to the content of people's inner world, belongs to the connotation of facts rather than external facts, it is difficult to prove by direct proof, generally only through objective evidence to infer the way to reflect. What is more complicated is that most of these crimes occur in private space, often with only the two parties involved and no third person, so it is difficult to obtain evidence. Moreover, due to the complexity, diversity and variability of human behavior, sometimes the external obedience or resistance is difficult to reflect the true psychological thoughts and subjective will of the parties. In this case, it is difficult to convince one party to be guilty by the confession of one party alone. What's more, violating the will does not mean disagreement, and the scene of violating the will is also more common in life. For example, students are unwilling to do their homework, but they choose to write under the pressure of teachers and parents. This is actually against the will; businessmen are unwilling to pay taxes, and eventually pay, which is also against the will. Therefore, to determine whether a person constitutes rape, in the absence of conclusive evidence to prove it, it is impossible to form a fair judgment only by violating the will. In most cases, the situation of Rashomon will occur. So, under what circumstances can rape be identified? It is generally believed that as long as there is evidence to prove that women do not know, can not or dare not resist, it can be identified as against the will of women, but in practice is not simple. The author believes that the following two aspects should be paid attention: First, the point in time to determine the violation of a woman's will should not be before or after the occurrence of sexual behavior, but should be when and during the occurrence of sexual behavior. Because sexual behavior is a continuous process, sexual autonomy belongs to personal rights rather than property rights, which is special. Consent before or at the beginning of sexual activity cannot be considered as a woman's approval of subsequent behavior. Because women have the right to claim sexual autonomy at any time, whether before or during the course of sexual behavior, once the woman is unwilling to continue the relationship, and the perpetrator chooses to continue against the will, it can be deemed to be against the will of the woman. Second, the criterion for violating women's will should not be whether women are willing, but whether women act or choose to make under the premise of free will. Against the will and against the will are two concepts. A woman's consent to have a relationship with the perpetrator may be against her will, not under the circumstances of her willingness, but as long as the sexual relationship with the perpetrator is a choice made under the circumstances of the freedom of the woman's will, it should be considered as not violating the will of the woman, otherwise, it should be considered as against the will of the woman. The real difficulty in practice lies in this. Not only because this is a connotative fact, under normal circumstances, the two sides will hold their own words, and the version of the story is completely opposite, but under what circumstances can it be determined that it is against the will of women, whether it is their voluntary choice or forced to do it? in fact, there is a lack of objective and unified judgment standards, and the different understandings between different judgment subjects will also cause great controversy. What should we rely on to judge? The author thinks that we should judge according to the objective evidence left before, at and after the crime, and rely on the proof method of inference. 1. Before the crime The review of almost every rape case starts from this part. At this stage, we should focus on the cognitive process of both parties before the crime, the length of time and the familiarity of both parties to judge women's cognitive ability of sexual relations. Whether the two parties have emotional foundation? Whether they can have sexual relations naturally? It is the key problem to be solved at this stage. "Logic is more credible than words", and some objective details may become the winner or loser of the case. 2. At the time of the crime The location selected at the time of the crime, the means taken by the perpetrator in the process, the situation of conversation, the way and frequency of sexual relations, the injury of women, the situation of calling for help and so on are important factors to judge the resistance ability of women in the process of sexual relations. All behaviors can be traced, and the performance of women in the process of the crime can best reflect the subjective mentality. The on-site investigation and the collection of material evidence at this stage are the top priorities in the case review. 3. After the crime After the incident, women's emotions, treatment methods, whether to call the police, through whom to call the police, the reaction time of the police, physical examination, etc., are the focus of judging women's psychology. Especially when the sexual relationship is known by a third person (husband, boyfriend), when judging the logic of women's statement, we should fully consider the factors that the psychological state of women who report to the police afterwards may be interfered and influenced by others. The above judgment method has its advantages, but it also has its defects. The reason why there is no unique standard to confirm the composition of rape is that human nature is too complex, especially human life. How should such cases be handled? The author believes that when handling such cases, especially judging whether the sexual relationship is a choice made by a woman under the free will of a woman, neither can it be judged completely from the standpoint of a woman, nor can it be replaced by the choice made by an ordinary person in this situation. The judgment of the will at that time should be comprehensively determined based on the evidence in the case, based on the overall process of the case, combined with the cognitive ability, resistance ability, past experience and other individual factors of the victimized women, judge whether the behavior of the perpetrator is enough to affect the freedom of will of the victimized women under the specific situation, so that they can make involuntary choices to have a relationship with the perpetrator under the situation of ignorance, inability and dare not resist. At the same time, refer to how ordinary people choose in similar situations to test and judge whether it conforms to the general rules of experience and common sense, this is to meet the standard of clear facts and sufficient evidence.

2022-03-18

Zhongcheng Qingtai Jinan signed a strategic cooperation agreement with Shandong Property Rights Trading Center and Chang'an Insurance Shandong Branch.

On March 17, Zhongcheng Qingtai (Jinan) Law firm held a tripartite signing ceremony with Shandong property Rights Trading Center Co., Ltd. (hereinafter referred to as "Trading Center") and Shandong Branch of Changan liability Insurance Co., Ltd. (hereinafter referred to as "Changan Insurance"). Lawyer Geng Guoyu, Director of Zhongcheng Qingtai Jinan Institute, Lawyer Tang Xiangdong, Deputy Director, Lawyer Yu Cuilan, Director of Financial Investment Department, Huang Yannan, Chief Operating Officer of Chang 'an Insurance, Gao Guangwei, General Manager of Chang 'an Insurance Shandong Branch, Wang Dongkai, Party Committee Member and Deputy General Manager of Shandong Property Rights Trading Group, and Wei Zhongjun, Business Director and Deputy General Manager of Shandong Property Rights Trading Group, attended the signing ceremony. At the signing ceremony, Geng Guoyu, director of Zhongcheng Qingtai Jinan Institute, said that the signing of the tripartite cooperation agreement reflects the professional development idea of guiding the core business with high-quality industries. Through the cooperation of Zhongcheng Qingtai, Trading Center and Chang 'an Insurance, it can effectively increase the transaction quality, enhance the comprehensive service capability of the three platforms and provide strong support for the construction of key projects in the province. Participating in the signing ceremony, Director Yu Cuilan, General Manager du Xiaofeng and General Manager Gao Guangwei signed the "Strategic Cooperation Agreement" on behalf of their respective units. The parties are full of expectations for the follow-up cooperation, and said that the tripartite cooperation is an effective exploration of resource sharing and mutual benefit and win-win mode, which can reduce the threshold and cost of litigation preservation, protect the interests of both parties, reduce the work burden of relevant judicial departments, enhance judicial credibility, provide a new way to solve the problem of difficult enforcement, and add "insurance lock" to court enforcement ".

2022-03-17

Lawyer Liu Rongyi conducted special training on "Jinan City Business Environment Optimization Regulations" for Jinan City Construction Group Asset Operation and Management Co., Ltd.

The regulations of Jinan City on optimizing the Business Environment (hereinafter referred to as the "regulations") will come into effect on March 1, 2022. In order to implement the regulations, serve the business environment of Jinan City, and better understand and master policies and regulations, on the afternoon of March 16, Jinan City Construction Group Asset Operation and Management Co., Ltd. invited lawyer Liu Rongyi of Zhongcheng Qingtai Jinan Institute to hold a special training on laws and regulations on serving the business environment, business personnel from all departments of the company participated in this training. Lawyer Liu Rongyi gave a clear explanation of the regulations from the aspects of the formulation background, guiding ideology, main provisions, implementation and legal responsibilities of the regulations on optimizing the business environment of Jinan City, and introduced in detail the negative list of market access, the list of government charges and the standard procedures of bidding in the regulations, It won the unanimous praise of the people present. Through the study, all the trainees have a comprehensive and accurate understanding and understanding of the regulations, which also points out the direction and provides guarantee for the more standardized and efficient work in the future.

2022-03-17

Viewpoint... Analysis of the legal issues of factoring contract disputes after the implementation of the Civil Code.

Introduction With the gradual scale of factoring business, disputes involving factoring contracts have gradually emerged. Since the dispute of factoring contract is a relatively new type of dispute, generally involving two contracts and three parties between the factoring agent and the creditor of accounts receivable under the factoring contract, and between the creditor of accounts receivable and the debtor under the basic contract, there is a gradual cognitive maturity process for the handling of the dispute involving factoring contract from the cause of action, jurisdiction, subject to the handling of the rights and obligations of the entity, its positioning has gone through from a loan contract dispute or an unnamed contract dispute to a consensus positioning of an unnamed contract dispute. After the Civil Code came into force, factoring contracts were regulated as a typical class of well-known contracts, providing a direct source of law for judicial decisions. This paper only discusses the legal issues related to the rights of recourse factors. The object and scope of the rights claimed by the 1. recourse agent. Article 766 of the Civil Code: Where the parties agree to have recourse factoring, the factoring agent may claim the return of principal and interest on factoring financing or the repurchase of the accounts receivable claim from the accounts receivable creditor, or claim the accounts receivable claim from the accounts receivable debtor. If the factoring agent claims an accounts receivable claim from the accounts receivable debtor, and if there is a surplus after deducting the principal and interest of the factoring financing and related expenses, the surplus shall be returned to the accounts receivable creditor. It can therefore be concluded that the agent may claim: 1, the agent to the creditors of accounts receivable to claim the right to repurchase accounts receivable, that is, to require creditors to "claim the right to the debtor's accounts receivable" to buy back; 2. The factoring agent separately claims recourse to the accounts receivable creditor for the principal and interest of the factoring financing, I .e., the creditor is required to continue to perform the obligation of settlement against the balance of the principal and interest of the factoring financing that the creditor fails to obtain settlement from the debtor; 3. The factor separately claims to the debtor of the accounts receivable within the scope of the accounts receivable that has been transferred but not paid, that is, the right to require the debtor to pay the accounts receivable in full and on time in accordance with the agreement of the underlying transaction contract. Can the 2. factor's recourse to the creditor and the debtor's claim coexist? In the course of the performance of a recourse factoring contract, the factoring agent, in order to maximize the recovery of the claim, often chooses to take the creditor and debtor of the accounts receivable as the defendant and file a lawsuit in the people's court together. With regard to the manner and order in which both creditors and debtors are liable when they are sued at the same time, both referees have expressed two views: first, the debtor of accounts receivable bears the first-in-the-line payment responsibility. A supplementary relationship is established between the factor's claim for payment to the debtor and the recourse to the creditor, and the creditor assumes supplementary liability to the extent that the debtor cannot be paid. Second, the factor does not extinguish the claim for payment of accounts receivable by claiming recourse. [Guiding Case] (2018) Supreme Famin Re -192 The gist of the decision: If the factor has not been paid off at the expiration of the agreed repayment period, the factor has the right not only to request the debtor of the underlying contract to pay off its debts, but also to recover from the creditors of the underlying contract, and the debtor of the accounts receivable bears the first-in-line repayment responsibility, and the creditor bears the corresponding supplementary liability. The court held that: in this case, the Bank of China New District Branch is at the same time to the Golden Eagle Company to claim recourse, but also to Tianhui Company, Huale Company to claim accounts receivable claims. Although the Bank of China New District Branch claimed to multiple debtors at the same time based on different legal relationships, they were all within the scope of the factoring legal relationship with only one purpose, namely, to recover the factoring financing funds provided to Golden Eagle. Therefore, the case should be consolidated and the order and scope of liability of each debtor should be determined on the basis of the legal relationship between the parties. The court of second instance rejected BOC New District Sub-branch's lawsuit against Tianhui Company and Huale Company and Huale Company's counterclaim against BOC New District Sub-branch on the grounds that the loan guarantee contract dispute and the creditor's rights transfer dispute were not based on the same legal fact and the same legal relationship and could not be tried together under the circumstance that the handling did not conform to the characteristics of factoring legal relationship and separated the internal connection between various legal relationships, this increases the litigation burden of the parties and is not conducive to the integrated settlement of disputes, which is corrected by this court. With regard to the order and scope of responsibility of each debtor, since Tianhui Company and Huale Company are the payers of the accounts receivable, they shall first assume responsibility for the payment of the transferred portion of the accounts receivable to the Bank of China New District Branch; if the relevant amount cannot be paid off, Golden Eagle Company shall continue to assume supplementary liability to the Bank of China New District Branch. Can the 3. factoring's claim to the creditor and the claim to the debtor coexist? There is a dispute in practice at present. Viewpoint 1: If a factoring agent sues a creditor in a separate case to claim a repurchase claim, the factoring agent's claim to the accounts receivable creditor for a repurchase right cannot coexist with the claim to the accounts receivable debtor. [Guiding Case] (2017) Supreme Fa Min Shen No. 132 The gist of the decision: Because the factor has required the creditor to assume the repurchase liability through the proceedings, the corresponding debtor's accounts receivable is transferred to the creditor, the creditor obtains the part of the claim, the debtor and the factor corresponding to the repayment obligation should be waived, the factor has no right to claim the accounts receivable from the debtor. The court held that, according to the Agreement on Factoring and the Application for Factoring Financing, the case was buyout factoring, and Pudong Development Bank was granted the accounts receivable claims of Bay Day against Zhonglian, and Pudong Development Bank became a creditor of Zhonglian. Thereafter, Wantian issued a Letter of Commitment to Pudong Development Bank, promising that if Zoomin fails to fulfill its payment obligations in full within the maturity date of the financing, Wantian will assume repurchase responsibility for the accounts receivable transferred to Pudong Development Bank under the Factoring Agreement, and the subject of its repurchase is still the claim on the accounts receivable. Therefore, whether Pudong Development Bank requests debt settlement from Zhonglian Company or repurchase from Wantian Company, it is based on the same accounts receivable claim. In the absence of a separate agreement between the parties, Pudong Development Bank can only choose one claim. According to the ascertained facts, Pudong Development Bank has requested Wantian Company to bear the repurchase responsibility for the accounts receivable creditor's rights in another case, and the effective judgment of the other case has already supported its claim. Under such circumstances, Pudong Development Bank no longer enjoys the accounts receivable creditor's rights against Zhonglian Company, so Pudong Development Bank has sued Zhonglian Company for the lack of claim basis for the debts in this case. Viewpoint 2: Whether the factor can claim a repurchase right from the accounts receivable creditor and a claim from the accounts receivable debtor can coexist depends on whether the action brought by the factor in a separate case should be found to have exercised the right to terminate the contract of assignment of claims. [Guiding Case] (2017) Supreme Famin Re -164 Referee gist: If the factor advocates the creditor of the underlying transaction to repurchase the accounts receivable, it is essentially advocating the termination of the factoring contract. After the termination of the factoring contract, the factoring ceases to have the status of a creditor of the receivables and it no longer has the right to claim payment of the receivables from the debtor of the underlying transaction, I .e., the factoring's repurchase claim against the creditor cannot coexist with its claim against the debtor. If the factor claims to the creditor in a separate case that it is not a repurchase of the receivables, but a return of the factoring financing, the factor will still have the right to claim payment of the receivables from the debtor until the principal and interest of the factoring financing are fully paid. However, in the case of the factor claiming rights to both the creditor and the debtor, the satisfaction or partial satisfaction of the debt by either party of the creditor and the debtor shall be relieved of the other party's obligation to pay off accordingly, so as to avoid the factor's double payment of the same claim. The court held: the question of whether Zhuhai China Resources Bank's right to anti-assignment of accounts receivable against Guangzhou Dayou Company could coexist with its claim against Jiangxi Fuel Company. The legal effect of the agent's anti-assignment of claims to the creditor's rights shall be recognized in accordance with the law as the termination of the contract of assignment of claims and the return of claims to the transferor, so the anti-assignment of accounts receivable shall be adjusted by the relevant provisions of the General Provisions of the the People's Republic of China Contract Law on contract termination. The agreement in the Domestic Factoring Contract that after Guangzhou Dayou Company returns the factoring financing funds and related outstanding expenses, all rights related to the accounts receivable shall also be transferred back at the same time, and Zhuhai China Resources Bank has the right to notify Guangzhou Dayou Company of the anti-transfer of creditor's rights in the case of Jiangxi Fuel Company's failure to perform its repayment obligations shall be interpreted as the agreed termination conditions of the creditor's rights transfer contract involved in the case. Therefore, in the case of the fulfillment of the termination conditions agreed in the contract, if Zhuhai China Resources Bank counter-transfers the creditor's rights to Guangzhou Dayou Company, it no longer has the creditor status of Jiangxi Fuel Company after the termination of the creditor's rights transfer contract, and its right basis for asking Jiangxi Fuel Company to pay off the debts no longer exists, therefore, Zhuhai China Resources' right of anti-transfer to Guangzhou Dayou Company and its claim to Jiangxi Fuel Company cannot coexist in legal nature. Accordingly, whether Zhuhai China Resources Bank's claim to pay off the debts of Jiangxi Fuel Company in this case can be supported depends on whether its separate lawsuit should be deemed to have exercised the right to terminate the contract of assignment of claims and return the claims to Guangzhou Dayou Company. In this case, the court held that in the process of claiming the rights of Zhuhai China Resources Bank, there was no written document to prove that it had expressed the intention of anti-transfer of claims to Guangzhou Dayou Company. Moreover, judging from the actual situation of the series of litigation actions carried out by Zhuhai China Resources Bank, its real meaning is to insist that Jiangxi Fuel Company and Guangzhou Dayou Company bear the debts at the same time. The core demand is to require Guangzhou Dayou Company and Jiangxi Fuel Company to jointly repay the loans owed, which has never included the intention of returning the creditor's rights to Guangzhou Dayou Company. Therefore, the Court found that the rights claimed by Zhuhai China Resources Bank in a separate lawsuit were in nature a right of recourse to require Guangzhou Dayou Company to repay the loan, not a counter-assignment of the claim. Jiangxi Fuel Company's lawsuit that Zhuhai China Resources Bank has transferred the accounts receivable involved in the case to Guangzhou Dayou Company has no corresponding factual basis, and this court will not accept it. The original judgment did not conform to the actual situation of the case that Zhuhai China Resources Bank had actually exercised the right of action against Guangzhou Dayou Company and that it no longer enjoyed the accounts receivable claim against Jiangxi Fuel Company. If Zhuhai China Resources Bank's real intention was to terminate the creditor's rights transfer contract, it would no longer insist on filing a lawsuit in this case claiming that it no longer had the right, and the court corrected the determination. Conclusion The last two cases are basically the same. The key lies in whether the factor has exercised the repurchase right. If it sues the creditor alone, the trial practice will tend to think that it has exercised the repurchase right and no longer enjoys the claim against the debtor. If the factor sues both the creditor and the debtor, the judge generally tends to think that the factor is exercising its claim against the debtor and its recourse against the creditor. In the event that the debtor fails to pay the principal and interest on the accounts receivable in full and on time, it is more advantageous for the factor to claim recourse to the creditor for the factoring financing rather than a repurchase claim.

2022-03-16