Viewpoint | Exit of investment in "famous stocks and real bonds" under the background of state-owned capital supervision

2023-03-10

Real Estate Perspective | Based solely on the Collective Land Own Certificate, is the owner of the land contained in the certificate necessarily recognized as the owner of the land?

According to the Constitution, China's land is under public ownership, that is, it is divided into state ownership (I. e., all people) and collective ownership according to the main body of the owner. Article 12 of the Land Administration Law stipulates that the registration of land ownership and use rights shall be carried out in accordance with the laws and administrative regulations on real estate registration. The ownership and use right of land registered according to law shall be protected by law and shall not be infringed upon by any unit or individual. It can be seen that the "the People's Republic of China Collective Land Ownership Certificate" is a legal certificate for collective land owners to have the right to possess, benefit and dispose of collective land in accordance with the law. Then, in the lawsuit, can the people's court identify the land owner as the land owner simply based on the "Collective Land Ownership Certificate"? We will make a specific analysis through a case below. Relevant 1. Cases and Analysis [(2021) Lu xing Zai No. 67]] 1. Brief facts of the case Beilongwan Village is composed of six villagers' groups evolved from six production teams during the former people's commune. Since the land reform, the land used by the six groups has been fixed and unchanged. The implementation of household joint production contract in 1993 has not broken the land boundary of each group (former production team), but the farmers are the household joint production contract signed with Beilongwan Village Committee. Around 1992, the land ownership certificates of the six groups were handled under the name of Beilongwan Village Committee, and the certificates were renewed in 2012. Beilongwan Village is still the owner of the certificate. In 2016, Shandong Province implemented the "13th Five-Year Plan" for poverty alleviation and relocation. According to the Shandong Provincial Government Lu Zheng Zi [2016] No. 83 document, the relevant county (district) government is the main body and responsible body of the relocation work. Responsible for the implementation of relocation projects within the jurisdiction. On October 12, 2016, the Beilongwan Village Committee and the Laoyu Village Committee signed the Land Requisition Agreement for the Remote Poverty Alleviation and Relocation Project of Laoyu Village, which agreed that the Laoyu Village Committee would requisition the land of Beilongwan Village for the construction of the Laoyu Village. Relocation project for poverty alleviation. The land used by a villager group is within the scope of requisition as agreed in the agreement. After receiving the payment from the poverty alleviation and relocation working group, Beilongwan Village Committee only paid 2.6 million yuan to a villager group, and the balance was about 7.8 million yuan unpaid. The Beilongwan Village Committee said that the distribution plan had been approved by the villagers' representative meeting and a villagers' group did not approve it. 2, the court decision point of view. The Shandong Higher People's Court held that the focus of the dispute in this case is whether the prosecution of a villager group meets the statutory conditions for prosecution, and the focus of the review is whether the villager group has the qualifications of the plaintiff. Article 4 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Rural Collective Land stipulates that if the land use right holder or actual user is not satisfied with the administrative act of the administrative organ involving the use or actual use of collective land, he may file a lawsuit in his own name. In this case, a group of villagers is not the owner of the land ownership certificate, but it is the land user, but also the historical formation and evolution of the land user. In this regard, Beilongwan village committee to be recognized. According to the Opinions of the Ministry of Agriculture on Stabilizing and Improving the Contracting Relationship approved by the State Council on March 28, 1995, the collective farmers of group-level collective economic organizations (former production teams) can have collective land ownership, and when making land adjustments, it is strictly forbidden Forcibly change the relationship of land ownership, and the land already owned by the group-level collective economic organization (former production team) shall not be returned to the village. The Ministry of Land and Resources "Guotuzifa [2001] No. 359" document "Notice on Accelerating the Registration and Issuance of Collective Land Ownership in accordance with the Law" requires the department of land and resources to "determine the subject of collective land use rights in strict accordance with the provisions of the" Land Management Law ". It is clearly stipulated that" the boundaries of villagers' groups (original production teams) are not broken in any land household joint production contract, whether the contract is signed with the farmers in the name of the villagers' group or in the name of the village, the land should be confirmed to be collectively owned by the farmers of the villagers' group......" In this case, although the land ownership certificate is registered in the name of the Beilongwan Village Committee, the land involved in the certificate belongs to the actual ownership of the villagers' groups. Therefore, a certain villager group has an interest in the expropriation of this case, and a certain villager group has the qualification of the plaintiff and can file a lawsuit in this case in its own name. The original trial court only denied the land ownership of a certain villager group by holding the land ownership certificate with the Longwan Village Committee. It did not consider historical reasons and actual conditions. The facts were unclear and should be corrected. Ruled to revoke the 1. second instance administrative ruling, instructed the Jinan Railway Transport Court to continue the trial. 3. Analysis of referee rules (1) If the land-use right holder or the actual user is not satisfied with the administrative act of the administrative organ involving the use or actual use of the collective land, he may bring a lawsuit in his own name. (2) To determine the ownership of rural land, historical reasons and actual conditions should be considered. Although the land ownership certificate is registered in the name of the Beilongwan Village Committee, the land covered by the certificate belongs to the actual ownership of the village groups. Interpretation of 2. Law 1, establish the villagers' group litigation subject qualification. Article 3 of the Civil procedure Law stipulates that the provisions of this Law shall apply to the acceptance of civil lawsuits brought by citizens, legal persons, other organizations and between them because of property and personal relations. Article 48: Citizens, legal persons and other organizations may be parties to civil litigation. Legal persons shall be litigated by their legal representatives. Other organizations are litigated by their principal leaders. Article 11 of the Land Management Law stipulates that if the land collectively owned by farmers belongs to the collective ownership of the village farmers according to law, it shall be operated and managed by the village collective economic organization or the villagers' committee; if it has been collectively owned by farmers who have belonged to two or more rural collective economic organizations in the village, it shall be operated and managed by the rural collective economic organizations or villagers' groups in the village; From the perspective of judicial practice, in the spirit of the 2006 Supreme People's Court's ''Reply on How to Exercise the Litigation Rights of Villagers Group'', the villager group can be the subject of civil litigation. When the legitimate rights and interests of the village group are infringed by others, the villager group should use itself. A lawsuit is filed in the name of the villager group, and the villager group leader is the main person in charge. To sum up, the author believes that the villagers' group not only has certain property, but also has the right to operate and manage its own property by law. Therefore, the villagers' group belongs to the category of "other organizations" stipulated in Article 49 of the civil procedure law. 2, to determine the ownership of rural land, should consider historical reasons and the actual situation, comprehensive analysis to determine. In the historical evolution of China's rural collective economic organizations, there are mainly three periods: first, the period of cooperation, there are primary and high-level cooperatives; second, the period of people's communes, there are production teams, production brigades and communes; third, the period of economic cooperatives, after the rural reform abolished the people's communes and established the rural system, The original people's communes, production brigades and production teams were changed to townships, villages and villagers' groups. After the implementation of the two-tier management system based on the joint production contract responsibility system in rural areas, the villagers' group still exists. The six villager groups in Beilongwan Village evolved from the original six production teams. The implementation of land household joint production contract did not break the boundaries of the original production teams. The farmer collectives of each villager group inherited the collective land ownership of the original production teams. Article 3, paragraph 3, of the Organic Law of villagers' Committees stipulates that villagers' committees may set up several villagers' groups according to their living conditions and collective land ownership. The Ministry of Land and Resources "Guotuzifa [2001] No. 359" document "Notice on Accelerating the Registration and Issuance of Collective Land Ownership in accordance with the Law" requires the department of land and resources to "determine the subject of collective land use rights in strict accordance with the provisions of the" Land Management Law ". It is clearly stipulated that" the boundaries of villagers' groups (original production teams) are not broken in any land household joint production contract, whether the contract is signed with the farmers in the name of the villagers' group or in the name of the village, the land should be confirmed to be collectively owned by the farmers of the villagers' group......" 3. The rural land ownership certificate issued by the administrative organ is not necessarily accepted as valid evidence in the course of the court hearing. On the premise that there is sufficient evidence to overturn it, the people's court may directly reject the Land Ownership Certificate issued by the administrative organ. This breaks the shackles of judicial practice in judicial practice that "only administrative power must be adopted", and embodies the basic legal spirit of "taking facts as the basis and law as the criterion. Moreover, it also reduces the so-called "suspension of the trial of the case first, and the trial of the case will continue after the" land ownership certificate "is revoked. Administrative power confirmation documents, etc., ultimately belong to the category of evidence. Of course, the people's court has the right to screen and decide whether to adopt and use it. This is the power and duty of the trial judge granted by the law. In the current judicial practice, we are also pleased to see many excellent cases of "not only the top, not only the book. The Supreme People's Court (2019) Supreme Law Minzai No. 384 Civil Judgment embodies the following gist of the judgment: Supreme People's Court on Application<中华人民共和国民事诉讼法>的解释》第九十三条规定，已为人民法院发生法律效力的裁判所确认的事实，当事人无需举证证明。人民法院的生效裁判具有既判力，但该效力仅限于生效裁判的判项，对于“本院认为”部分的认定，如有证据可以推翻的，在后裁判不受在先裁判的影响，人民法院可以根据当事人举证情况做出独立认定。  </中华人民共和国民事诉讼法>

2023-03-06

Viewpoint | (I) about the workers' congress

Workers' congresses and workers' congresses may be relatively unfamiliar in some enterprises, especially in small and medium-sized enterprises, where almost all decisions of enterprises fall within the scope of the authority of the management. therefore, many enterprises think that it is not necessary to establish workers' congresses and workers' congresses, or they can only play a temporary role when needed. And this is actually a misunderstanding of the workers' congress system. This series will explain the legal issues related to the workers' Congress one by one by way of questions and answers. You are also welcome to inform us of the issues you want to know about the workers' Congress by leaving a message. We will select some hot issues to be included in this series to let more people know about the workers' Congress. 1 What enterprises must establish the system of workers' congress? The workers' congress is a form of democratic management in enterprises. At the legal level, only Article 18 of the Company Law stipulates that "the company implements democratic management through the workers' congress or other forms in accordance with the provisions of the Constitution and relevant laws" involves the workers' congress, while Article 2 of the Regulations on the Workers' Congress of Industrial Enterprises Owned by the Whole People stipulates that enterprises owned by the whole people must establish the system of workers' congress, others, such as the "Regulations on the School Staff Congress", "Measures for the Implementation of the Railway Enterprise Staff (Representative) Congress", "Regulations on the Staff Congress of Enterprises and Institutions in the Water Conservancy System", "Regulations on the National Financial System Staff Congress", etc., stipulate that schools, railways, Enterprises and institutions in water conservancy, finance and other industries should establish a staff congress system. Many provinces have also stipulated by local laws and regulations that enterprises should establish workers' congresses. Specific to Shandong, Articles 2 and 3 of the "Regulations on the Workers' Congress of Shandong Enterprises" clearly stipulate that enterprises in the administrative region of Shandong Province should establish and improve the system of workers' congresses or workers' congresses. 2 What are the legal consequences of not establishing a system of workers' congresses? Article 54 of the the People's Republic of China Trade Union Law stipulates that "in violation of the provisions of this Law, any of the following circumstances shall be ordered by the people's government at or above the county level to make corrections and be dealt with in accordance with the law: (1) those that hinder the trade union from organizing workers to exercise their democratic rights in accordance with the law through workers' congresses and other forms; ......" Article 27 of the Shandong Enterprise Workers' Congress Regulations stipulates that "an enterprise and its staff violate the provisions in one of the following circumstances, the trade union or the relevant parties have the right to request the people's government at or above the county level and the relevant departments to deal with it according to law: ...... (II) refuses to establish the system of workers' congress; ......" It can be seen from the above provisions that those who fail to establish the system of workers' congress should be dealt with according to law, but what kind of treatment has not been clearly defined by specific laws and regulations, and the existing provisions are too general and lack of operability. At the level of this issue, Shanghai has set an example for us. Article 46 of the "Regulations of Shanghai Municipality on Workers' Congress" clearly stipulates that "the municipal and district federations of trade unions shall incorporate the implementation of the workers' congress system in enterprises and institutions into the supervision and inspection of labor laws and regulations of trade unions. For enterprises and institutions that violate the provisions of these regulations, they may issue labor law supervision and rectification opinions of the trade union, requiring enterprises and institutions to make corrections within 90 days. If an enterprise or institution fails to make corrections within the time limit, the municipal and district federations of trade unions may, as needed, submit a proposal for labor law supervision and handling of the trade union to the state-owned assets, education, science and technology, culture, health and other administrative departments at the same level and the administrative departments of human resources and social security. For enterprises and institutions that violate the provisions of these regulations and cause group labor disputes, as well as enterprises and institutions that have issued labor law supervision and handling proposals by trade unions, state-owned assets, education, science and technology, culture, health and other administrative departments, and human resources and social security The department shall investigate and deal with it in accordance with the law, and urge enterprises and institutions to make corrections within 30 days. If an enterprise or institution fails to make corrections within the time limit, the Municipal Federation of Trade Unions shall incorporate the information into the municipal public credit information service platform in accordance with the relevant regulations of the city's social credit management. For violations of labor security laws and regulations, the human resources and social security administrative department shall make administrative treatment in accordance with the law." The author believes that this should also be the future legislative direction of Shandong Province. 3 Whether the formulation of enterprise rules and regulations must go through Adoption by the Workers' Congress? Article 18 of the "Company Law" "When a company studies and decides on major issues in restructuring and operation, and formulates important rules and regulations, it shall listen to the opinions of the company's trade union, and listen to the opinions and suggestions of employees through the employee representative assembly or other forms." It only stipulates that the opinions of employees should be heard through the form of employee representative assembly. As for the rules and regulations involving the vital interests of workers, although Articles 20, 21, and 22 of the "Regulations on the Workers' Congress of Shandong Province" stipulate that the enterprise workers' congress shall review various systems and plans of the enterprise, however, according to the second paragraph of Article 4 of the Labor Contract Law of the upper law, "When the employer formulates, modifies or decides on labor remuneration, working hours, rest and vacation, labor safety and health, insurance benefits, employee training, labor discipline, and labor quota management, etc. When rules and regulations or major matters directly related to the vital interests of workers, they shall be discussed by the workers' congress or all employees, and plans and opinions shall be put forward, it shall be determined through equal consultation with the trade union or employee representatives." Therefore, the formulation of rules and regulations requires enterprises to go through democratic procedures, which can be discussed with all employees and then determined through equal consultation with trade unions or employee representatives.

2023-03-06

Viewpoint. The path selection and analysis of the lessor's priority compensation right to the lease price in the financial lease.

Introduction There is a widespread situation of "self-mortgage" in the financial leasing business, that is, under the structure of the financial leasing transaction, the lessor is the owner of the leased property, and at the same time, in order to guarantee the realization of the creditor's rights under the financial leasing contract, the lessor and the lessee sign a mortgage contract, agreeing to mortgage the leased property under the financial leasing contract to the lessor as collateral, that is, the lessor is, the mortgagee. In judicial practice, there are many disputes over the determination of whether the lessor enjoys the priority right of compensation in the case of "self-property mortgage", and the results of the court decisions are not uniform. The Supreme People's Court on the application<中华人民共和国民法典>Article 65 of the Interpretation on the Guarantee System (hereinafter referred to as the Interpretation on the Guarantee System of the Civil Code) stipulates that the lessor has the right to "receive compensation" with the proceeds from the auction and sale of the leased property, but it is not clear whether it has priority. After searching the relevant cases, the application of the rules on the payment of the leased property by the lessor is not uniform, and there are also disputes over the determination and judgment standards of the lessor the priority of the lessor the right of the lease price of the lease price. 1. the determination of the priority right of payment of the lease price under the situation of "self-property mortgage". There has always been controversy in the theoretical and judicial practice about the validity of "self-mortgage" in the financial leasing business. Part of the view is that the "self-property mortgage" is invalid because it violates the statutory rules of property rights, and the lessor already enjoys ownership of the leased property, it cannot also enjoy the mortgage on the leased property, so the lessor has no right to claim priority compensation for the price of the leased property in the case of "self-property mortgage. Another view is that the lessor's ownership and mortgage rights to the leased property can coexist, and in the case of the lessor and the lessee agreeing to use the leased property as collateral and having gone through the mortgage registration procedures in accordance with the law, the lessor should be deemed to have the right to exercise the mortgage on the leased property and to receive priority compensation for the price of the proceeds from the auction and sale of the leased property. The provisions of Article 9 of the interpretation of the Supreme People's Court on the application of legal issues in the trial of financial lease contract disputes (hereinafter referred to as the judicial interpretation of financial leasing) issued by the Supreme People's court in 2014 recognize the effect of "self property mortgage" to a certain extent, that is, "the lessee or the actual user of the leased property shall transfer the leased property or establish other real rights on the leased property without the consent of the lessor, if the third party acquires the ownership or other real right of the leased property in accordance with the provisions of Article 106 of the Property Law, and the lessor claims that the third party's right is untenable, the people's court shall not support it, except for one of the following circumstances: ...... (II) the lessor authorizes the lessee to mortgage the leased property to the lessor and register the mortgage right in the registration authority according to law", according to the provisions, the lessor right to which, and can be registered by the mortgage against a bona fide third party. This provision provides a certain legal basis for the application of "self-property mortgage", but the Judicial Interpretation of Financial Leasing issued by the Supreme People's Court in 2020 has deleted the above-mentioned content, which seems to further hinder the lessor's path of priority compensation for the subject matter of the lease in accordance with the "self-property mortgage" claim. The author tends to believe that, from the perspective of maintaining financial leasing transactions and guaranteeing financial leasing claims, without prejudice to the legitimate rights and interests of the lessee and third parties, the lessor should be recognized as having the right to give priority to the payment of the lease price of the "self-mortgage. 2. the path of the lessor's priority compensation for the price of the lease under the system of the Civil Code and the Interpretation of the Civil Code Guarantee System. The Supreme People's Court on the application<中华人民共和国民法典>Article 65 of the Interpretation of the Guarantee System (hereinafter referred to as the Interpretation of the Guarantee System of the Civil Code) stipulates that the lessor has the right to pay the price of the financial lease, that is, "in the financial lease contract, the lessee fails to pay the rent as agreed, but still fails to pay within a reasonable period after being urged, and the lessor requests the lessee to pay all the remaining rent and pays the price from the auction or sale of the lease, the people's court shall support it; if the parties request to pay the rent by auction or sale of the leased property with reference to the relevant provisions of the Civil Procedure Law" cases of realization of security interests ", the people's court shall allow it." It should be noted that the provision only provides for "compensation at the price of the proceeds of the auction or sale of the leased property", but there is no expression of "priority. Therefore, on the basis of this provision alone, the lessor is not yet able to claim the right of priority compensation in respect of the price of the leased property. With regard to the issue of the right to priority compensation for the price of the leased property, the Supreme People's Court held in the book "Understanding and Application of the Judicial Interpretation of the Civil Code Guarantee System" that "whether the lessor can claim priority compensation for the price of the proceeds from the auction and sale of the leased property depends on whether the lessor's ownership of the leased property has been registered. According to Article 745 of the Civil Code, if the lessor's ownership of the leased property is not registered, it shall not oppose a bona fide third party. Therefore, when the lessor's ownership of the leased property is not registered, the people's court shall not support the lessor's request for priority compensation with the proceeds from the auction or sale of the leased property, but only support the request for compensation with the proceeds from the auction or sale of the leased property." From this, it can be seen that the lessor has registered the ownership of the financial lease on the premise that the price of the proceeds from the auction and sale of the lease has been paid first. Therefore, even if the lessor claims the priority compensation path for the mortgage of the leased property under the situation of "self-mortgage" may be blocked, according to the relevant provisions of the Civil Code, the Interpretation of the Civil Code Guarantee System and the views of the Supreme People's Court, the lessor should be able to obtain the priority compensation right for the price of the leased property by registering the ownership of the financial leased property. But at the same time, it should be noted that the applicable rules of the right of priority compensation of the lease price are not clearly stipulated by law, and the opinions of the courts in practice are not uniform. 3. relevant referee rules According to the above analysis, whether it is the "self-property mortgage" or the rule of payment of the lease price, there is some controversy as to whether the lessor can enjoy the priority right of payment of the lease price. After searching the relevant cases, the judicial practice of the lessor's priority right of compensation in the legal relationship of financial leasing mainly includes the following: 1. The act of "self-property mortgage" is invalid and the lessor does not have the right of priority compensation for the price of the leased property; 2. The lessor is not only the owner of the lease, but also claims that the exercise of the mortgage on the lease is in contradiction with the nature of the transaction, and it should not be recognized that it has a priority right to pay the price of the lease; 3. The act of "self-property mortgage" is valid, and if the mortgage registration procedures have been completed, the lessor shall have the right to exercise the mortgage on the leased property and may give priority to the auction and sale price of the leased property; 4. According to the provisions of the Interpretation of the Civil Code Guarantee System, if the lessor has registered the ownership of the leased property, it shall be determined that the lessor shall have priority in the payment of the auction and sale price of the leased property. 5. The Interpretation of the Civil Code Guarantee System only provides that the lessor has the right to be paid for the auction and sale price of the lease, and there is no basis for the lessor to claim priority compensation. 6. According to the provisions of the Interpretation of the Guarantee System of the Civil Code, the lessor has the right to be paid in respect of the lease, and if the mortgage of the lease has been registered, the lessor shall be deemed to have the right of priority to be paid. The relevant cases are as follows: <案例一>: Dispute over Financial Lease Contract between Maotai Town Maotai Liquor Industry Co., Ltd. and Zunyi Rongxin Real Estate Development Co., Ltd., renhuai city, Guizhou Province [Supreme People's Court (2016) Supreme Law Minzong No. 540]] The court held that the collateral of the "Mortgage Guarantee Contract" No. 0106-3-4 (2014) involved in the case was the lease of the financial lease contract involved, and Article 4-1 of the Lease Back Sale Contract stipulated that after the contract was signed and came into effect, the ownership of the leased property involved was transferred to Great Wall Guoxing Company. Article 34 of the the People's Republic of China Security Law provides that the mortgaged property is the right to use the movable or immovable property owned by the mortgagor. The company will not belong to its lease as collateral, in violation of the law, is an invalid contract. According to the Mortgage Guarantee Contract, Great Wall Guoxing Company claims that the request for priority compensation for the leased equipment provided by Maoxiang Spring Wine Company is not valid. <案例二>: China Youth Travel Industry Development Co., Ltd. and Jinyin Financial Leasing Co., Ltd. Financial Leasing Contract Dispute [Supreme People's Court (2019) Supreme Law Minchong No. 222]] The court held that, according to the selection clause in Article 4 of Part I of the Financial Lease Contract, the ownership of the four Lingbi stones involved in the case belonged to Jinyin Company before the judgment came into effect. Combined with the first instance litigation request of Jinyin Company, it proposed to exercise the mortgage right on the collateral (four Lingbi stones) owned by Suzhou Jingsi Garden Company and deposited in Suzhou Jingsi Garden, which contradicts the nature of the transaction involved in the case. <案例三>: Jiaohe Kaidi Green Energy Development Co., Ltd. and Kaidi Ecological Environment Technology Co., Ltd. Financial Lease Contract Dispute [Supreme People's Court (2019) Supreme Law Minzhong No. 547]] The court held that the question of whether Datang Leasing Company's request for preferential compensation for the price of the mortgage under the Maximum Mortgage Contract enjoyed by Jiaohe Energy Company should be supported. In this case, Datang Leasing Company signed the Maximum Mortgage Contract with Jiaohe Energy Company, and Jiaohe Energy Company mortgaged its biomass power generation equipment to Datang Leasing Company, and registered the mortgage with the Jiaohe Market Supervision and Administration Bureau, so Datang Leasing Company already enjoyed the mortgage right to the biomass power generation equipment. Now Jiaohe Energy Company and Kaidi Ecological Company are unable to perform their contractual obligations and comply with the contract to realize the mortgage. Datang Leasing Company requires the exercise of the mortgage on the biomass power generation equipment provided by Jiaohe Energy Company, which complies with the contract and legal provisions. Should be supported. <案例四>: Guotai Leasing Co., Ltd. and Qinghai Pingan Gaojing Aluminum Co., Ltd. have disputes over financial leasing contracts [Shandong Higher People's Court (2019) Lu Minchu No. 76]] The court held that on the issue of whether Cathay Pacific Leasing Company has the priority to be paid for the collateral involved, Cathay Pacific Leasing Company and Qinghai Aluminum Company signed a "mortgage contract" on September 25, 2017, agreeing to use the leased property as collateral to guarantee the realization of all claims of Cathay Pacific Leasing Company under the financial lease contract. On the same day, Cathay Pacific Leasing Company and Qinghai Aluminum Company registered the movable property mortgage with Cathay Pacific Leasing Company as the mortgagee, during the trial, Qinghai Aluminum Company also recognized the claim of Cathay Pacific Leasing Company. Therefore, the Court supports the claim of Cathay Leasing Company. <案例五>: Puyin Financial Leasing Co., Ltd. and Hanbang (Jiangyin) Petrochemical Co., Ltd. have disputes over financial leasing contracts [Shanghai Financial Court (2020) Hu 74 Min Chu 3458]] The main dispute in this case is whether the plaintiff has the right to auction, sell and give priority to the lease. Article 65 of the Judicial Interpretation of the Guarantee System stipulates that in a financial lease contract, if the lessee fails to pay the rent in accordance with the agreement and fails to pay it within a reasonable period of time after being urged, the lessor requests the lessee to pay all the remaining rent and pay the price of the proceeds from the auction or sale of the leased property, the people's court shall support it. According to the provisions of the new law, the lessor's ownership of the leased property in a financial lease has a guarantee function. If the lessee still fails to pay the rent within a reasonable period of time after being urged, the lessor requests the lessee to pay all the unpaid rent through litigation. Under the condition that the compensation of the proceeds from the auction and sale of the leased property is more conducive to the repayment of the debts of both parties, and does not violate the reasonable expectations of the contract parties. Thus, the provisions of the Civil Code and the Judicial Interpretation of the Security System on "payment of the proceeds from the auction and sale of the leased property" may be retroactively applied to the Financial Lease Contract in this case. As for whether the lessor can enjoy the priority of compensation, the court held that according to Article 745 of the Civil Code, "the lessor's ownership of the leased property shall not be opposed to a bona fide third party without registration"; and Article 63 of the Judicial Interpretation of the Guarantee System, "In atypical guarantees, if the parties fail to register in the legal registration agency in accordance with the law and claim that the guarantee has the effect of real rights, the people's court will not be supported, the lessor enjoys the right of priority compensation on the premise that the financial lease contract and the lessor's ownership of the lease have been registered, and the corresponding registration has the effect of public trust. ...... The court held that the registration of the financial lease contract and the leased property in question should be effective in rem from January 1, 2021, and that the priority of the plaintiff in the disputed leased property could also be determined according to that point in time. <案例六>: Pioneer International Financial Leasing Co., Ltd. and Xiao Peng Financial Leasing Contract Dispute [Beijing Chaoyang District People's Court (2021) Beijing 0105 Minchu No. 31084]] Regarding whether Pioneer Company can claim the priority of compensation for the auction and sale price of the leased property, the first paragraph of Article 65 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code stipulates that in a financial lease contract, if the lessee fails to pay the rent as agreed and still fails to pay within a reasonable period after being urged, the lessor requests the lessee to pay all the remaining rent, if the price of the proceeds from the auction or sale of the leased property is paid, the people's court shall support it; if the parties request to pay the rent by the price of the proceeds from the auction or sale of the leased property by reference to the relevant provisions of the Civil Procedure Law, the people's court shall allow it.... According to the provisions of the above judicial interpretation, Pioneer Company has the right to request the payment of the proceeds from the auction and sale of the leased property within the scope of the creditor's rights in this case, because the vehicles involved in the case have been mortgaged and registered in the name of Pioneer Company, so Pioneer Company claims to give priority to the payment of the proceeds from the auction and sale of the vehicles involved in the case, which is supported by this court. <案例七>: Ping An International Financial Leasing Co., Ltd. and Mo Yujian Financial Leasing Contract Dispute [Tianjin Pilot Free Trade Zone People's Court (2021) Jin 0319 Min Chu No. 10567]] The Supreme People's Court on the application<中华人民共和国民法典>The first paragraph of Article 65 of the interpretation of the relevant guarantee system stipulates that in the financial lease contract, if the lessee fails to pay the rent in accordance with the agreement and still fails to pay within a reasonable period of time after being urged, the lessor requests the lessee to pay all the remaining rent and pay the price from the auction or sale of the leased property, the people's court shall support it. In this case, the defendant failed to pay the rent on time, the plaintiff requested that the lease involved in the case and the defendant agreed to discount or auction and sell the lease, and the proceeds were used to pay off the defendant's above-mentioned debts with factual and legal basis, so the Court supported it. If the proceeds are not sufficient to pay off the above-mentioned debts, the shortfall shall continue to be paid by the defendant; if the proceeds exceed the above-mentioned debts, the excess shall belong to the defendant. The plaintiff's request for priority settlement of the above-mentioned debts on the proceeds has no clear legal basis, so the Court does not support it. 4. epilogue At present, in judicial practice, there are disputes over the determination of the priority right of payment of the lease price under the system of "self-property mortgage" and "Civil Code" and "Civil Code Guarantee System Interpretation", and no unified rule of judgment has yet been formed. From January 1, 2021, the People's Bank of China will be registered.</中华人民共和国民法典></案例七></案例六></案例五></案例四></案例三></案例二></案例一></中华人民共和国民法典></中华人民共和国民法典>

2023-03-03

Viewpoint... "Land Expropriation Social Stability Risk Assessment" business development and operational guidelines.

1. Law and Policy Provisions on Risk Assessment of Social Stability in Land Expropriation In May 2010, the General Office of the State Council issued the "Emergency Notice on Further Strict Management of Land Acquisition and Demolition and Effectively Safeguarding the Legal Rights and Interests of the People" (hereinafter referred to as the "Notice"), requiring that experts should be organized to demonstrate before the land acquisition and relocation project is established, and all sectors of society should be widely solicited. The opinions of the requisitioned people are to conduct a risk assessment of land acquisition and social stability. Since then, the land acquisition risk assessment system has been formally incorporated into the land acquisition system. Article 12 of the regulations on Housing expropriation and compensation on State-owned Land issued in January 2011 stipulates: "before the people's governments at the municipal and county levels make decisions on housing expropriation, they shall conduct a risk assessment of social stability in accordance with the relevant provisions." The promulgation of the regulations further regulates the development of social stability risk assessment of housing expropriation on state-owned land. The newly revised Land Administration Law, promulgated in January 2020, stipulates in its 47th chapter: "Where the State expropriates land, the local people's government at or above the county level shall, after approval in accordance with legal procedures, make an announcement and organize its implementation. Where the local people's government at or above the county level intends to apply for land expropriation, it shall carry out a survey of the current situation of the land to be expropriated and a risk assessment of social stability." Thus, the "social stability risk assessment" work as a necessary procedure in the process of land expropriation is determined in the form of legislation. The Market Prospect of 2. "Land Expropriation Social Stability Risk Assessment" and the Prospect of Government Standard Guidelines The future "land expropriation social stability risk assessment work, issued" land expropriation social stability risk assessment report "will be a large service market. And for the land expropriation market, which often reserves tens of billions of dollars, the remuneration for work in this area will also be expensive, and the market prospect is self-evident, so I won't repeat it. After the promulgation of the new land management law, local government departments have attached great importance to it. Many cities and prefectures have issued normative documents such as "Measures for Social Stability Assessment of Land Expropriation" in accordance with the provisions of the new land management law. On March 27, 2020, the people's Government of Zibo City issued the "Measures for Social Stability Risk Assessment of Land Expropriation in Zibo City" Zi Zheng Ban Zi [2020] No. 36, the Jinan Municipal Government issued the "Jinan City Major Issues Social Stability Risk Assessment and Resolution System" in accordance with the central government's "proposed work idea of" moving forward "to resolve conflicts and disputes", combined with its own actual situation, and proposed that "it is easy to cause conflicts. Introduce a risk assessment mechanism before major projects and decisions". In 2012, the "Opinions on Further Improving and Improving the Social Stability Risk Assessment and Resolution Mechanism for Major Issues" was issued again, using social stability assessment work to predict the hidden dangers of instability that may affect social stability caused by major projects and decision-making, so as to accurately Analyze the social stability situation and the root causes of risks after the implementation of the project, and through early intervention and early work, strive to resolve conflicts and disputes in the bud and initial state. Preventing and resolving social contradictions has become the top priority of the work of party committees and governments at all levels, and conducting social stability risk assessment on major issues has become an important measure for risk management in various localities in recent years. Feasibility Analysis of 3. Law Firms Involved in "Land Expropriation Social Stability Risk Assessment" Under the current legal provisions and policies, there are no mandatory or clear requirements on qualifications. Generally speaking, engineering consulting units, law firms with social stability risk assessment business, social stability risk assessment companies/centers established in individual places, and some environmental assessment agencies are all engaged in this work. As the most important legality review and rationality review in the assessment content, the law firms of other institutions have more authority and advantages in the aspects of investigation and evidence collection and risk resolution in risk assessment work. The natural legal attributes of law firms and lawyers determine that their participation in the social stability risk assessment of land acquisition is better than other intermediaries. In addition, land acquisition according to law is also a part of administration according to law. As a local government, lawyers engaged in government legal services and land acquisition laws are more likely to participate in the social stability risk assessment of land acquisition projects, put forward relevant opinions or suggestions, and participate in the preparation of risk assessment plans and the identification of risk levels. Therefore, the participation of law firms and lawyers in the social stability risk assessment of land acquisition is also the need of the government's administration according to law. The work of "land expropriation social stability risk assessment" has a fixed template and process, which is not complicated. Lawyers are involved in the work field of "land expropriation social stability risk assessment", which has broad prospects and will make great achievements! 4. Law Firm's Market Development for "Land Expropriation Social Stability Risk Assessment" In practice, the stability maintenance office of the local government is generally the government department in charge of "social stability risk assessment". Some places have begun to establish a database of social stability risk assessment institutions to register and manage social stability risk assessment institutions. The "Zibo City Land Acquisition Social Stability Risk Assessment Measures" stipulates that under the leadership of the district and county government, the town (street) where the land acquisition project is located is the main body of the assessment, and is responsible for the social stability risk assessment of land acquisition. And issue a social stability risk assessment report; natural resources, letters and visits, public security and other departments and units, as well as the town (street) and village (residential) where the land acquisition project is located, implement the social stability risk assessment of land acquisition within the jurisdiction; the natural resources department of each district and county shall be responsible for supervising the implementation of the social stability risk assessment of land acquisition. The unit applying for land use shall submit the social stability risk assessment report to the natural resources department and report to the political and legal committee of the district and county in a timely manner. The ''Jinan City Major Events Social Stability Risk Assessment and Resolution System'' stipulates that the joint offices at all levels, the Stability Maintenance Office, and the Letters and Calls Bureau, as the filing agencies, perform the filing management responsibilities, and resolve the social stability risk assessment and resolution of major events at the same level and the next level Supervise and guide the filing work. Operational Guidelines for 5. Lawyers to Conduct "Social Stability Risk Assessment of Land Expropriation" The social stability risk assessment of land expropriation refers to the systematic investigation, scientific prediction, analysis and evaluation of the factors that may affect social stability before the land expropriation project is formulated, implemented or approved, and the risk response strategies and plans are formulated, so as to effectively avoid, prevent and control the social stability risks that may arise during the implementation of the land expropriation project, and ensure the smooth implementation of the land expropriation project. Basic Principles of Social Stability Risk Assessment for (I) Land Expropriation The social stability risk assessment of land requisition shall adhere to the principles of "people-oriented, administration according to law, territorial management, hierarchical responsibility and scientific decision-making. Main Contents of Social Stability Risk Assessment of (II) Land Expropriation 1) Legality. Whether the decision-making and implementation of land acquisition projects comply with the the People's Republic of China Land Management Law and its supporting administrative regulations, local regulations and rules, whether they comply with the normative documents and other policy documents formulated by the state and the province, whether they comply with legal procedures, and whether the declaration requirements are complete, true and effective. 2. Reasonableness. Whether the decision-making and implementation of land acquisition projects are in line with Xi Jinping's new era of socialism with Chinese characteristics, whether they are in line with the short-term and long-term plans for economic and social development in the region, land and space planning (overall land use planning, urban and rural planning) and special plans, whether they will lead to comparisons between different regions, industries and groups, and whether they reflect the wishes of the majority of the people and whether they follow the principles of openness, fairness and justice, whether or not to take into account the immediate and long-term interests of the masses. 3. Feasibility. Whether the decision-making and implementation of land acquisition projects have undergone strict feasibility studies, whether the matters required by the masses for hearings have been heard, whether the measures have been perfected, whether the decision-making plan has fully considered the acceptance of the masses, whether it exceeds the affordability of the majority of the masses, and whether It is accepted and supported by the majority of the masses. 4-Security. Whether the preparations for the land acquisition project are sufficient, whether the compensation and resettlement fees for land acquisition have been raised and implemented, whether the publicity of the compensation and resettlement policies for land acquisition is in place, and whether the resettlement channels for land-expropriated farmers can be implemented. 5. Controllability. Whether the decision-making and implementation of the land acquisition project has caused mass incidents and seriously affected social stability, whether the implementation of the land acquisition project will cause serious dissatisfaction among the land-expropriated farmers, surrounding residents and relevant rights holders, whether the potential contradictions affecting stability are within the controllable range, whether measures to prevent and resolve social contradictions and corresponding emergency response plans have been formulated, and whether the publicity, explanation and public opinion guidance are sufficient. Risk Assessment Procedure for Social Stability of (III) Land Expropriation 1, accept the stability of the commission. Communicate with the project unit, collect project data and various approval procedures; In-depth analysis of the preliminary survey and summary of the project submitted by the project unit, preliminary sorting out the known stability-related problems of the project, and formulating the Work Plan; 2. Review the documents and approvals required for the project and check the legality risks of the project. 3. Carry out on-site inspection to find out the situation around the project, understand the land involved along the project, the specific location of the land, and the ground attachments of the expropriated land, etc., and obtain first-hand information on stability. 4, posting publicity, visits and other forms of work. Post announcements and publicity in the project area and surrounding crowded areas. The main contents of publicity: project collection scope, evaluation unit, publicity time, contact information, etc. The publicity period shall not be less than 30 days, and relevant stakeholders shall be informed of the implementation of the project as much as possible; To conduct risk factor investigation on the project to be implemented, and to solicit the demands and opinions of the investigated by means of on-site questionnaire survey, visiting survey and forum; The Social Impact Questionnaire is issued to investigate the support of the main items, the main concerns, etc. Visit and investigate the village committees and governments of grass-roots organizations to collect opinions and suggestions. Understand whether to support the implementation of the project and whether to actively cooperate with the superior department to deal with the problems arising from the project in a safe manner. For land acquisition projects that are highly controversial among the masses and require hearings, hearings shall be organized in accordance with the Provisions on Land and Resources Hearings (Order No. 22 of the Ministry of Land and Resources) to provide accurate and reliable first-hand risk prediction data for the social stability risk assessment of land acquisition. 5, analysis and judgment. The results and problems collected from the above work are sorted out, analyzed and judged separately, and the main stability-related factors that may occur during the implementation of the project are excluded. Sort out and analyze the opinions collected from all parties, verify the approval procedures of the proposed project, compare the unstable events caused by similar projects, and comprehensively investigate the possible risk factors of the proposed project; 6. Formulate measures to resolve and prevent. In view of the main stability-related problems in the investigation, we will work with the responsible unit of the project to formulate practical and feasible measures to resolve and prevent the stability-related factors to a large extent and reduce the intensity of the stability-related factors to a large extent. For major, complex and difficult matters, the opinions and suggestions of the competent department at a higher level shall be solicited as appropriate. 7, predict the risk level. On the basis of the previous work, the stability-related risks of each stability-related risk factor after taking mitigation and preventive measures are evaluated and predicted, the risk level of project implementation is assessed, and the project "Social Stability Risk Analysis Report" is formed. The risk level is divided into three categories: high risk, medium risk and low risk. Land-expropriated farmers, surrounding residents and relevant rights holders who have objections to the project and have particularly strong reactions, which may lead to large-scale mass incidents or individual extreme events, are of high risk; those who have objections and have relatively strong reactions, which may lead to conflicts, are of medium risk; individual objections are of low risk. 8, submitted for review. Submit the Social Stability Risk Analysis Report to the relevant competent government departments for review, and further improve the report based on the review results. 9. Filing. Send the improved Social Stability Risk Assessment Report to the relevant government authorities for the record, and deliver the final assessment report to the project unit. 6. Land Acquisition Social Stability Risk Assessment Report (Template) Basic information of (I) land acquisition projects It mainly includes the name and overview of the land acquisition project; the implementation unit of the land acquisition project; the organization and implementation of the land acquisition social stability risk assessment, the main person in charge and contact information. Analysis of Social Stability Impact of (II) Land Expropriation Project 1) Legality. First, whether the decision-making and implementation of land acquisition projects comply with the "the People's Republic of China Land Management Law" and its supporting administrative regulations, local regulations and rules; whether they comply with the normative documents and other policy documents formulated by the state and the province. Second, whether the land acquisition project conforms to the legal procedures. Third, whether the requisition project declaration requirements are complete, true and effective. 2. Reasonableness. First, whether the decision-making and implementation of land acquisition projects are in line with the short-term and long-term plans for the economic and social development of the region, land and space planning (overall land use planning, urban and rural planning) and special plans. second, whether the land requisition project reflects the will of the majority of the masses. Third, whether the land acquisition project follows the principles of openness, fairness and impartiality. Fourth, whether the land acquisition project can take into account the real interests and long-term interests of the masses. 3. Feasibility. First, whether the decision-making and implementation of land acquisition projects have undergone strict feasibility studies. Second, whether the matters that need to be heard or the masses require a hearing have been heard, whether the measures are perfect, and whether they are accepted and supported by the majority of the masses. 4-Security. First, whether the preparations for the land acquisition project are adequate. Second, whether the compensation and resettlement fees for land acquisition have been raised and implemented. Third, whether the publicity of land acquisition compensation and resettlement policy is in place. Fourth, whether the resettlement channels for land-expropriated farmers can be implemented. 5. Controllability. First, the decision-making and implementation of land acquisition projects, whether there are problems that cause mass incidents and seriously affect social stability. Second, whether the implementation of land acquisition projects will cause serious dissatisfaction among land-expropriated farmers, surrounding residents and relevant rights holders. Third, whether the hidden dangers of contradictions that may affect stability are within the controllable range. Fourth, whether there are countermeasures to deal with possible unstable factors. Problems Found in (III) Risk Assessment and Resolution Emergency plan for sudden mass incidents in (IV) 1. Organization and leadership (including name, unit, position, contact information, etc.) 2. Division of responsibilities 3. Disposal work plan Conclusion of Social Stability Risk Assessment of (V) Land Expropriation (VI) Special Notes

2023-03-03

Viewpoint... "Construction enterprises" in the field of construction engineering can not know the risk of administrative punishment (IV)-lifting machinery.

In order to regulate the behavior of various subjects in the field of construction engineering in Shandong Province, the Department of Housing and Urban-Rural Development of Shandong Province issued the ''Administrative Penalty Discretion Bench'' of the Department of Housing and Urban-Rural Development of Shandong Province., Within the scope of the types and ranges of administrative penalties stipulated by laws and regulations, depending on the severity of the violations and the impact of the consequences, reasonably divide different levels of illegal situations, determine specific administrative penalty standards. We all know that in the construction process of the construction of the most prone to safety risks are mainly lifting machinery, scaffolding and other high-risk operation risks, pay attention to avoid such problems brought about by the risk of administrative penalties in the industry. 1. The construction unit entrusts a unit without corresponding qualifications to undertake the installation and disassembly of construction hoisting machinery and the overall lifting of scaffolding, formwork and other self-elevating erection facilities on the construction site. 2. The construction unit fails to register after the acceptance of construction lifting machinery, overall lifting scaffolding, formwork and other self-elevating erection facilities as required 3. The construction unit shall use the construction hoisting machinery and the self-elevating erection facilities such as scaffolding and formwork without acceptance or unqualified acceptance. The installation and disassembly units of 4. construction hoisting machinery, integral lifting scaffolding, formwork and other self-elevating erection facilities have not prepared the disassembly and assembly plan and formulated the safety construction measures. 5. Construction Lifting Machinery and Overall Lifting Scaffolding, Formwork and Other Self-Lifting Erection Facilities Installation and Demolition Units Not Supervised by Professional and Technical Personnel 6. Construction Lifting Machinery and Overall Lifting Scaffolding, Formwork and Other Self-Elevated Erection Facilities Installation and Disassembly Units Not Issued Self-Inspection Certificate or False Certificate 7. construction hoisting machinery, integral lifting scaffolding, formwork and other self-elevating erection facilities installation and disassembly unit did not provide safe use instructions to the construction unit, and handle the handover procedures

2023-03-02

Viewpoint... Study on the legal risk of "gambling agreement".

Foreword With the rapid development of China's market economy, the volume of commercial transactions of listed trading entities, especially enterprises, is increasing year by year, so the financing needs of enterprises are gradually increasing. Traditional financing methods have gradually been unable to meet the needs of enterprises efficient and convenient, so a variety of new financing models have emerged. Among them, the "gambling agreement" as a special means of investment and financing, with its unique adjustment of valuation and risk diversification mechanism is widely used. However, from the beginning of the emergence of the "gambling agreement" financing model, there are more legal risks in terms of its own effectiveness and actual performance. The purpose of this paper is to sort out the common risks of the "gambling agreement" behavior model in practice, and put forward their own solutions to seek advice from colleagues. An overview of the financing function of the 1. "gambling agreement" and its basic form. The essence of the "gambling agreement" is a valuation adjustment mechanism, which is widely used in private equity investment and corporate valuation transaction arrangements by eliminating the uncertainty in equity pricing as much as possible. In the process of gambling, the gambling parties or parties will temporarily put aside the valuation dispute of the target company, and set objective conditions or objectives that can be recognized by all parties within a certain period of time according to the actual operating conditions of the company, so as to finally determine the actual value of the equity of the target company. However, due to the essential characteristics of the "gambling agreement", the gambling agreement itself has the characteristics of commercial information asymmetry: that is, the investor can not determine the equity value of its investment. As a result, "gambling agreements" in practice often contain very clear compensation clauses. The existence of the compensation clause enables the investor to inject capital into the target company at a higher equity valuation when the business information of the gambling counterparty is relatively vague, and also allows the financier to temporarily obtain the huge amount of funds needed for business development. The above is the "gambling agreement" to complete its financing value of the practice. In practice, the investors of the "gambling agreement" are mostly equity funds or venture capital institutions established by private placement, while the financing party is the company, the company's shareholders or the actual controller of the company. The types of "gambling agreement" are generally divided into: ① gambling with the shareholders or actual controllers of the target company; ② gambling with the target company; ③ gambling with the target company, the shareholders and actual controllers of the target company; according to the different gambling methods, they are generally divided into: ① agreed repurchase gambling; ② cash compensation gambling. Changes in the legal risk of 2. "gambling agreements": from effectiveness risk to performance risk The legal risk related to the "gambling agreement" is first reflected in the effectiveness risk, that is, the "gambling agreement" signed by the parties is directly found to be invalid by the court. The "Gansu Shiheng case" in 2012 was recognized as a representative case that found the "gambling agreement" invalid. The Supreme Court judge who heard the case held that in private financing activities, the relevant provisions of the Company Law and the contract Law should be followed when the investment and financing parties agree to gamble. The court held that if the contract was performed, it would enable the investor to obtain excess returns, to the detriment of the interests of creditors and the target company, while putting the investor in a superior position, endangering the basic principles of company law and even civil law, and therefore found that the gambling agreement was invalid. The invalid determination determined by the case lasted for a long time in our country, until the emergence of the "Huagong case" in 2019. The Jiangsu High Court believes that the relevant share repurchase clause involved in the "gambling agreement" signed between Jiangsu Huagong Company and Yangzhou Yangforging Company will not violate the principle of capital maintenance of the company after fulfilling the legal procedures, nor will it cause damage to the interests of the company's shareholders and their creditors, so the "gambling agreement" should not be deemed as of course invalid. The emergence of the "Huagong case" has led to differences in the determination of the validity of the "gambling agreement" in China's judicial practice, but at the same time, it also shows that China's judicial attitude towards the validity of the "gambling agreement" has changed. The issue was then clearly combed in the Ninth Minute, and the dispute over the validity of the "gambling agreement" became history. Article 5 of the Ninth Minute stipulates that the validity of the agreement between the investor and the company or the individual shareholders of the company will not be invalid due to the subject of the gambling, and if it does not violate the relevant mandatory provisions of validity, the court will find the gambling agreement valid and support the performance according to the actual conditions. If the investor appeals to the law for actual performance, whether the target company can be judged to perform its gambling obligations, the people's court shall review whether the performance complies with the provisions of the Company Law and other relevant laws. In summary, it can be seen that since the introduction of the Ninth Minute, the legal risk related to the "gambling agreement" has changed from validity to performance. 3. Combing and Exploring the Performance Risk of "Gambling Agreement" From the relevant provisions of the Ninth Minute on the "gambling agreement", the legal risks of the "gambling agreement" in the performance of the "gambling agreement" are broadly as follows: 1. Agreed repo-type bets may not be materially performed due to the shackles of the capital reduction process. If the "gambling agreement" stipulates the terms of share repurchase, when the target company needs to buy back the shares in order to fulfill the "gambling agreement", according to the principles and relevant provisions of the nine people's minutes and the company law, the capital reduction procedure must be carried out. This is because a share buyback without fulfilling the capital reduction process would violate the capital maintenance principle at the heart of the three principles of corporate law. However, according to the relevant provisions of the Company Law, the resolution of a company to reduce its registered capital needs to be passed by a vote of shareholders representing more than 2/3 voting rights, that is, an absolute majority.. And the legal and effective capital reduction procedure needs to follow the principle of capital maintenance and meet the requirements of protecting the interests of the company's creditors. Such tough regulations bring about the cumbersome nature of the capital reduction process. At the same time, fulfilling the repurchase obligation means that the company uses its own funds to repurchase shares from shareholders that have little commercial value and are not highly held, so in practice, other shareholders do not treat the company's capital reduction process in a positive manner based on their own interests. 2. The source of compensation cash in a cash compensation "gambling agreement" may result in the agreement not being performed or not being fully performed. In judicial practice, the parties in many cases will ask the court to adjust the amount of funds in the "gambling agreement. The reason for the adjustment is unambiguous and is nothing more than underfunding. But the problem behind the lack of funds is worth pondering: what is the scope of the source of funds for cash compensation? The Nine People's Minutes stipulates that the source of funds for cash compensation must be the after-tax profits after the withdrawal of the statutory provident fund. However, the Ninth Minute does not make a clear scope for the "after-tax profits" it refers. Therefore, the following problems arise in practice: Is the source of cash compensation limited to the company's after-tax profits in the current year, or should it include the undistributed after-tax profits in the past business process of the company in order to achieve the business objectives? And is it reasonable to use the existence of distributable profits as the standard for whether the agreement should be fulfilled? Because logically, as long as the prohibition of the law is not violated, the company can fulfill its obligations under the agreement with its own assets. 4. risk response recommendations From the above description, it is easy to see that there are various legal risks in the performance of the "gambling agreement", which may lead to the agreement not being fully performed. In my opinion, most of the above legal risks stem from the restrictions on the performance of agreements imposed by the relevant provisions of China's Company Law. The author thinks that to solve the above risks, we can try to jump out of the scope of the company law regulation: that is, regardless of the nature of the "gambling agreement", from the legal attribute, it belongs to the contract. The failure to perform the agreement due to the principle of capital maintenance, the shackles of the capital reduction procedure or the significance of the repayment of the source of funds constitutes a default in the nature of the contract law. The above-mentioned reasons for delayed performance are often subject to the peremptory norms of the Company Law, but should not prevent the contract law rules from delaying the liability for breach of contract due to temporary performance. Therefore, the author suggests that when the parties to the transaction enter into a "gambling agreement", it is best to agree on a liquidated damages clause in the gambling agreement to ensure the realization of their own legitimate interests. Conclusion With the increasing development of financing means, accurately grasping the legal risk of financing behavior is an indispensable part of the process of improving the efficiency of transactions, so the author introduces the risk of "gambling agreement" and the rough risk response model in this article, with a view to discussing with you.

2023-02-28

Viewpoint... Construction project accounts receivable commercial factoring financing compliance points.

2023-02-28

Viewpoint... The latest release of the "Real Estate Private Investment Fund Pilot Filing Guidelines (Trial)

In order to regulate private investment funds engaged in real estate investment business, better support the revitalization of real estate, and promote the stable and healthy development of the real estate market. On February 20, 2023, the official website of the China Securities Regulatory Commission (hereinafter referred to as the "China Securities Regulatory Commission") issued a document "The China Securities Regulatory Commission launched a pilot real estate private equity investment fund to support the stable and healthy development of the real estate market". At the same time, the China Securities Investment Fund Industry Association (hereinafter referred to as the "China Foundation Association" or the Association) issued the "Guidelines for the Pilot Filing of Real Estate Private Investment Funds (Trial)" (China Foundation Association [2023] No. 4) (hereinafter referred to as "" Real Estate Fund Pilot Filing Guidelines ") and supporting drafting instructions clearly allow private equity fund managers who meet the requirements to set up real estate private investment funds, invest in specific residential housing, commercial operating housing and infrastructure projects. Clarify the new category of "real estate private equity investment fund", and promote the pilot work in accordance with the principle of pilot first and steadily advancing, and will be implemented on March 1, 2023. there are a total of 21 filing guidelines issued this time, it mainly puts forward normative requirements from the investment scope of real estate private investment funds, the declaration conditions of pilot managers, product types, initial fundraising scale and capital contribution requirements, the necessary clauses of fund contracts, related party transaction rules, fund leverage rules, regulatory requirements for manager management behavior, special risk disclosure rules, fund application procedures, filing procedures, information disclosure and submission requirements, etc, the relevant provisions of the pilot filing guidelines are described as follows: Investment Scope The investment scope of real estate private equity investment funds includes specific residential housing (including stock commercial housing, affordable housing, market-oriented rental housing), commercial business housing, infrastructure projects, etc. The (I) stock of commercial housing refers to the stock of commercial housing projects that have obtained the state-owned land use certificate, construction land planning permit, construction project planning permit, construction project construction permit, and presale permit, and have achieved sales or the main construction project has started. Including ordinary houses, apartments, etc. (II) affordable housing refers to the policy housing that has obtained the state-owned land use certificate and has set up limited standards, limited prices or rents to solve the housing difficulties, including public rental housing, affordable rental housing, shared property housing, etc. (III) market-oriented rental housing refers to the rental housing that has obtained the state-owned land use certificate and construction land planning license, and does not carry out long-term market-oriented rental operation for the purpose of splitting property rights sales, but is not included in the indemnificatory rental housing system. (IV) commercial business premises refer to real estate projects for the purpose of development, construction or operation for commercial activities, including office buildings, shopping malls, hotels, etc. (V) infrastructure projects refer to real estate projects that are developed, constructed or operated for municipal engineering, public life services, and commercial operations, including high-speed railways, highways, airports, ports, warehousing and logistics projects, urban rail transit, municipal roads, water, electricity and heat Traditional infrastructure such as municipal facilities and industrial parks, new infrastructure such as 5G base stations, industrial Internet, data centers, and new energy wind power photovoltaic facilities. Reporting conditions of the administrator In accordance with the principle of pilot first and steadily advancing, the manager may establish a real estate private investment fund in accordance with these Guidelines if it meets the following circumstances: The (I) is registered as a private equity investment fund manager in the association in accordance with the law; The capital contribution structure of the (II) is stable, and the main investors and actual controllers have not changed in the last two years; The main investor and actual controller of the (III) shall not be the real estate development enterprise and its related parties, except in the case where the private equity fund investment needs to send management personnel to the real estate development project enterprise; The (IV) has a sound governance structure, management system, decision-making process and internal control mechanism; The paid-in capital of the (V) is not less than 20 million yuan; The (VI) has real estate investment management experience, and the principal of real estate investment under management is not less than 5 billion yuan, or the cumulative principal of real estate investment under management since the registration of the manager is not less than 10 billion yuan; (VII) has more than 3 real estate private investment projects successfully exit experience; (VIII) professionals with real estate investment experience, the investment department has no less than 8 professionals with more than 3 years of real estate investment experience, of which no less than 3 with more than 5 years of experience; No major violations of laws and regulations have occurred in the (IX) in the last three years; (X) other circumstances required by the CSRC and the Association. If the investors of the pilot real estate private equity investment fund are all institutional investors, the (VI) requirements of the preceding paragraph may be that the principal of the real estate investment under management is not less than 3 billion yuan, or the accumulated principal of the real estate investment under management since the registration of the manager is not less than 6 billion yuan. Product Type The Association adds a "real estate private equity fund" product type under the type of private equity fund. The establishment of a private equity fund engaged in real estate investment business in accordance with these Guidelines shall select the product type as "real estate private equity investment fund". Initial fundraising scale and capital contribution requirements 1. initial raising scale: the scale of the first round of paid-in funds raised by real estate private equity investment funds shall not be less than 30 million yuan. 2. capital contribution requirements: the first round of real estate private investment fund investors paid-in capital is not less than 10 million yuan. Among them, for real estate private equity investment funds with natural person investors, the total contribution amount of natural person investors shall not exceed 20% of the paid-in amount of the fund. In the form of partnerships, contracts and other unincorporated forms, directly or indirectly investing in real estate private equity investment funds by pooling the funds of most investors, it should be penetrated and verified, but basic pensions, social security funds, annuity funds and other pension funds, charitable funds, etc. Social welfare funds, insurance funds, asset management products issued by financial institutions, and QFLP pilot private equity funds established in China to raise funds for foreign investors are excluded. If the manager and its employees invest in the real estate private investment fund under management, they shall not be subject to the provisions of the first paragraph of this article. Special rules for real estate private investment funds to provide loans or guarantees for invested enterprises. A real estate private equity investment fund that provides loans or guarantees to an investee enterprise shall meet the following conditions: The (I) fund contract has a clear agreement and performs the decision-making procedures agreed upon in the fund contract; the maturity date of the (II) loan or guarantee shall not be later than the date of completion of the liquidation of the fund; If the (III) has a natural person investor, the real estate private equity investment fund shall hold more than 75% of the equity of the invested enterprise; If the (IV) are all institutional investors, the real estate private equity investment fund shall hold more than 75% of the equity of the invested enterprise, or hold more than 51% of the equity of the invested enterprise and the invested enterprise provides guarantee, so as to realize asset control. If the amount of equity contribution of the real estate private equity investment fund to the invested enterprise belongs to item (III) of the preceding paragraph, it shall not be less than 1/3 of the total amount of capital contribution to the invested enterprise; if it belongs to item (IV) of the preceding paragraph, it may be agreed upon by the fund contract. According to the fund contract or after fulfilling the decision-making procedures stipulated in the fund contract, the real estate private equity investment fund may, on the basis of commercial rationality, provide the fund property to the external pledge, and expand the source of investment funds by applying for business property loans, merger and acquisition loans, etc. Clarify the mandatory custody requirements for real estate private equity funds. Real estate private investment funds shall be held in trust by institutions that have obtained fund custody qualifications in accordance with the law. The fund custodian shall earnestly perform the duties of the custodian, supervise the investment scope, investment mode and qualified investors of the real estate private investment fund to continuously meet the requirements, and report the operation of the real estate private investment fund investment target and investor changes to the association on a quarterly basis. Clarify the necessary terms of the fund contract for real estate private equity funds. The real estate private equity investment fund contract shall clearly stipulate the following contents: (1) investment scope, investment mode, exit mode, etc.; (II) fund investment decision-making mechanism arrangement; (III) fund expansion, grading arrangement, pledge and other guarantee arrangements (if any); (IV) the invested enterprise to pay dividends to the fund (if any); (V) the convening mechanism, contents of proceedings and voting methods of shareholders' meetings, partners' meetings or fund share holders' meetings; (VI) other contents required by the CSRC and the association. The real estate private equity investment fund contract invested in a single project shall also clearly stipulate the investment target, investment structure, etc. Associated Transaction Rules Where a real estate private equity investment fund conducts related transactions, the manager shall prevent conflicts of interest, establish an effective related transaction and risk control mechanism, and clearly stipulate in the fund contract the prior and in-process information disclosure arrangements involving related transactions, as well as special decision-making mechanisms and avoidance arrangements for related transactions. The above-mentioned related party transactions refer to the transactions between the real estate private investment fund and the manager, the senior executives of the manager, investors, other private investment funds managed by the manager, private investment funds managed by other managers controlled by the same actual controller, or related parties with other significant interests of the above-mentioned subjects. The manager shall not conceal the related relationship or make the related transaction non-related, and shall not use the property of the private investment fund to transfer benefits to the related party and other illegal activities. Clarify the leverage rules for real estate private equity funds. The manager may, in the light of the actual business situation, set a reasonable leverage ratio for the real estate private investment fund, but shall not use the hierarchical arrangement to protect the capital and income in disguise. The total assets of a real estate private investment fund shall not exceed 200 per cent of its net assets. The regulatory principles and requirements of the management behavior of the manager. The manager shall be diligent and responsible, and effectively control the risks of real estate private equity investment funds by supervising the flow of funds and effectively playing the role of shareholders, and shall not have the following behaviors: (1) The manager uses the fund property to provide guarantees for entities other than the fund and the invested enterprise, Damage the rights and interests of investors; (II) managers use private equity fund property to directly or indirectly invest in private equity fund managers, controlling shareholders, actual controllers and enterprises or projects under their actual control; (III) other circumstances prohibited by the CSRC and the Association. Special Risk Disclosure Rules The manager shall disclose the special risks of the real estate private equity investment fund to investors in the "special risk disclosure" part of the collection and promotion materials and the risk disclosure book, and disclose in detail the basic information such as the investment scope and investment mode of the fund. If a real estate private equity investment fund involves other special risks or business arrangements such as related transactions, single investment targets, hierarchical arrangements, pledges, shareholder loans, loans, investment targets through special purpose vehicles, equity holdings of contractual private equity fund managers, etc., it shall be disclosed together in the "special risk disclosure" section of the risk disclosure statement. Application procedures and material requirements for the pilot of real estate private investment fund managers. The manager shall submit the following information and materials to the association before carrying out business activities such as raising and managing real estate private investment funds: (I) the raising plan and investment operation plan of the real estate private equity investment fund to be established; Proof of the suitability of the main contributors and actual controllers of the (II) manager; Proof of paid-in capital of the (III) manager; Proof of (IV) real estate investment management scale; Information on senior management personnel and employees related to (V) real estate investment business; (VI) legal compliance and integrity; (VII) other information and materials required by the CSRC and the Association. Filing procedures and material requirements for the pilot real estate private investment fund manager. The manager shall submit the following basic information and materials to the association within 20 working days after the completion of the real estate private investment fund raising, and go through the filing procedures: (I) private equity contracts; (II) Fund Custody Agreement; (III) fund prospectus; (IV) risk disclosure statements and investor suitability related documents; Proof of (V) the paid-in funds raised; (VI) underlying investment agreements, investment framework agreements or specific investment programmes (if applicable); (VII) the state-owned land use certificate, construction land planning permit, construction project planning permit, construction project construction permit, presale permit that the project company has obtained, as well as the supporting documents proving the progress of the main construction project of the project (if applicable); Other information and materials requested by the (VIII) Association. Special rules for disclosure of information After the establishment of a real estate private investment fund, the manager shall produce a quarterly real estate fund property management report and disclose it to investors, which shall contain at least the following: The opening of the special account for the property of the (I) fund; (II) fund property investment management, operation, disposition and income; The operation of the project in which the (III) invests in the real estate subject; changes in (IV) investment managers or key persons; Description of major changes in the use of (V) fund assets; (VI) of the circumstances involving major litigation or damage to the fund property or the interests of investors; A description of the (VII) involving connected transactions, pledges, shareholder loans, loans, etc; (VIII) other contents stipulated in the fund contract; Other content required by the (IX) Association. Information submission requirements The manager shall report the operation of the real estate private investment fund to the association on a quarterly basis, and report the overall operation of the real estate private investment fund to the association at the end of the year. Scope of application and time of implementation 1. For real estate private equity investment funds, if they are not provided for in these Guidelines, they shall be implemented in accordance with the requirements of private equity fund managers and private equity funds. Managers who do not participate in the pilot program do not apply these guidelines and can carry out equity investment businesses such as affordable housing, commercial real estate, and infrastructure in accordance with the current self-discipline rules of the association. 2. These Guidelines shall come into force on March 1, 2023.

2023-02-25

"Construction enterprises" in the field of construction engineering administrative punishment risk (III)-safety production

In order to regulate the behavior of various subjects in the field of construction engineering in Shandong Province, the Department of Housing and Urban-Rural Development of Shandong Province issued the ''Administrative Penalty Discretion Bench'' of the Department of Housing and Urban-Rural Development of Shandong Province., Within the scope of the types and ranges of administrative penalties stipulated by laws and regulations, depending on the severity of the violations and the impact of the consequences, reasonably divide different levels of illegal situations, determine specific administrative penalty standards. The first two articles mainly describe the risks of administrative penalties that may be involved in the construction qualification, subcontracting, construction standards, etc. that "construction enterprises" pay attention to in the production and operation activities in the field of construction engineering: 1. construction enterprises do not take measures to eliminate the hidden dangers of construction safety accidents 2. the construction unit has not established a safety production management organization, equipped with full-time safety production management personnel, or has no full-time safety production management personnel on-site supervision during the construction of partial projects. The main person in charge, project leader, full-time safety production management personnel, operation personnel or special operation personnel of the 3. construction unit shall engage in relevant work without safety education and training or unqualified assessment. 4. The construction unit fails to set up obvious safety warning signs at the dangerous parts of the construction site, or fails to set up fire-fighting passages, fire-fighting water sources, fire-fighting facilities and fire-fighting equipment at the construction site in accordance with relevant national regulations. 5. The construction unit fails to provide safety protection equipment and safety protection clothing to the operators. 6. The construction unit shall use the technology, equipment and materials that endanger the construction safety that are eliminated or prohibited by the state. 7. the construction unit did not make a detailed description of the technical requirements for safe construction before construction. 8. the construction unit fails to take corresponding safety construction measures at the construction site according to different construction stages and changes in the surrounding environment, seasons and climate, or fails to implement closed enclosure at the construction site of the construction project in the urban area 9. The temporary buildings erected by the construction unit at the construction site do not meet the requirements for safe use 10. The construction unit fails to take special protective measures for adjacent buildings, structures and underground pipelines that may be damaged due to the construction of the construction project. Eleven, the construction unit safety protection equipment, mechanical equipment, construction machines and accessories before entering the construction site without inspection or inspection unqualified that put into use Twelve, the construction unit in the construction organization design did not prepare safety technical measures, construction site temporary electricity plan or special construction plan Thirteen, the construction unit to obtain the qualification certificate, reduce the safety production conditions Fourteen, the construction unit to obtain the safety production license to reduce the safety production conditions Fifteen, construction enterprises did not set up safety production management institutions in accordance with the provisions; Not in accordance with the provisions of full-time safety production management personnel; More dangerous parts of the project construction did not arrange full-time safety production management personnel on-site supervision; "safety management personnel" did not obtain the safety production assessment certificate and other illegal acts 16. Decoration and decoration enterprises violate the relevant national safety production regulations and safety production technical regulations, fail to take necessary safety protection and fire protection measures in accordance with the regulations, use open flame operations and carry out welding operations without authorization, or fail to take measures to eliminate the hidden dangers of construction safety accidents.

2023-02-24