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[brief case]] In 2012, a Tianjin Beverage Co., Ltd. (hereinafter referred to as "Tianjin Beverage Company") signed a one-year house lease contract with a scientific research institute in Chengde (now "Chengde Academy of Sciences"), agreeing that the company would lease the warehouse of the institute to store products and equipment. In December of the same year, a beverage company in Tianjin insured all risks to the Beijing branch of an insurance company. On April 20, 2013, an electrician of a scientific research institute in Chengde illegally operated, causing a fire in the warehouse, and the items stored in the warehouse of a beverage company in Tianjin were burned. Later, the Higher People's Court of Hebei Province determined in a separate civil judgment that the electrician's behavior was an act of duty, and the institute was mainly liable for compensation for the accident. After the accident, a beverage company in Tianjin applied for a claim to the Beijing branch of an insurance company for the loss of the accident. Beijing Branch of an insurance company paid insurance compensation of 2.5 million yuan and more than 1.92 million yuan to a beverage company in Tianjin on June 9, 2013 and November 11, 2014 respectively according to the insurance contract. On November 9, 2016, the Beijing branch of an insurance company filed a subrogation lawsuit with the People's Court of Shuangqiao District, Chengde City, Hebei Province. The first-instance judgment found that the first insurance compensation of 2.5 million yuan had passed the statute of limitations for subrogation. The claim for the insurance money was not supported. Later, the company appealed to the Intermediate People's Court of Chengde City, Hebei Province, and the original judgment was upheld in the second instance. In 2018, the company applied for a retrial, and the Hebei Provincial higher people's Court made a retrial judgment on November 29, 2018, finding that the first insurance compensation of 2.5 million yuan did not exceed the statute of limitations, and decided to revoke the 1. judgment of second instance. A scientific research institute in Chengde should pay compensation for fire losses to the Beijing branch of an insurance company within the scope of full insurance compensation in accordance with the proportion of fire accident liability. focus of controversy] Whether the insurance compensation claimed by the insurance company exceeds the statute of limitations. The court of first instance held that] According to the first paragraph of Article 60 of the the People's Republic of China Insurance Law, the insurance company must meet the following conditions to exercise the right of recovery: first, the insurance company has compensated the insured for the insurance money; second, the loss of the subject matter of the insurance is caused by the damage of a third party. In this case, the insurance contract relationship between a Tianjin beverage co., ltd. and the plaintiff is legal and valid. the plaintiff has paid compensation for the actual losses of a Tianjin company caused by the accident according to the insurance contract between the two parties. therefore, the plaintiff has the right to claim subrogation from a certain academy of sciences in Chengde city for 60% of the insurance premium payable. According to the provisions of Article 16, paragraph 2, of the (II) of the Supreme People's Court on the Interpretation of Several Issues Concerning the Application of the the People's Republic of China Insurance Law, the limitation period for the insurer's right of subrogation shall be calculated from the date on which it obtains the right of subrogation. According to the first paragraph of Article 60 of the Insurance Law, the insurer shall, from the date of compensation to the insured, exercise the right of the insured to claim compensation from a third party within the scope of the amount of compensation. Therefore, the date on which the insurer obtains the subrogation claim is the date on which its insurance is paid. In this case, the plaintiff paid insurance compensation of RMB 2500000 yuan and RMB 1920296.79 yuan to a company in Tianjin on June 9, 2013 and November 11, 2014 respectively. On June 9, 2013, the plaintiff's first insurance compensation of RMB 2500000 yuan obtained the right of subrogation against an academy of sciences in Chengde City. On November 11, 2014, the plaintiff's second insurance compensation of RMB 1920296.79 yuan obtained the right of subrogation against an academy of sciences in Chengde City. This case is a dispute over damages between the plaintiff, a Beijing branch of an insurance company, acting on behalf of a company in Tianjin, and the defendant. It is a lawsuit based on the debt of infringement. The limitation period of action should be two years. The limitation period for the plaintiff's first insurance compensation is from June 10, 2013 to June 9, 2015. According to Article 140 of the General Principles of Civil Law, the limitation of action is interrupted by the initiation of a lawsuit, the request of one of the parties or the consent to perform the obligation. The limitation period is recalculated from the time of the interruption. Article 10 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation of Action System in the Trial of Civil Cases stipulates that under any of the following circumstances, it shall be deemed as "a request by one of the parties" stipulated in Article 140 of the General Principles of Civil Law, which shall have the effect of interruption of the limitation of action: (2) One of the parties claims its rights by sending letters or data messages, and the letters or data messages arrive or data messages should arrive or reach the other parties. In this case, a law firm in Beijing sent a lawyer's letter EMS on claiming compensation to a scientific research institute in Chengde City on June 9, 2015. The lawyer's letter did not attach the plaintiff's authorization document. In combination with a law firm in Beijing as the agent of the insurer and the insured in the warehouse fire series case, it could not be determined that it claimed the right to a certain person in Chengde City based on the authorization act. In addition, the EMS did not arrive at the defendant on June 9, 2015, and could not interrupt the statute of limitations for the first insurance compensation. The statute of limitations for the first insurance compensation of 2500000 yuan has passed for the past two years. In this case, the limitation period of action for the second insurance compensation of 1920296.79 yuan was calculated from November 11, 2014 to November 9, 2016. The plaintiff filed a lawsuit with Chengde intermediate people's court, and the limitation period of action for the second insurance compensation of 1920296.79 yuan was not expired. According to the provisions of Article 60 of the Insurance Law, the scope of the insurer's exercise of the right of subrogation is limited to the insurance compensation paid, and the loss of interest after the insurer pays the compensation shall not be claimed to a third party. In accordance with Article 60 of the the People's Republic of China Insurance Law, Article 16 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Insurance Law, Article 140 of the General Principles of the Civil Law, Item (II) of Article 10 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation of Action System in the Trial of Civil Cases, and Article 144 of the the People's Republic of China Civil Procedure Law, the judgment: the 1. defendant, a scientific academy of sciences in Chengde city, shall compensate the plaintiff for 1152178.07 yuan (1920296.79 X60%) of the Beijing branch of an insurance company within 15 days after the judgment comes into effect. The 2. defendant, a trading co., ltd. in Chengde city, shall not be liable for compensation; The 3. rejected other claims of the plaintiff's Beijing branch of an insurance company. The court of second instance held that] After the insurance accident occurred, the Beijing branch of an insurance company paid insurance compensation of RMB 2500000.00 yuan and RMB 1920296.79 yuan to a company in Tianjin on June 9, 2013 and November 11, 2014 respectively according to the insurance compensation request of the insured company in Tianjin and the relevant accident materials provided, indicating that the Beijing branch of an insurance company should know the infringer and infringement when paying the first insurance compensation, and an insurance company Beijing branch did not provide evidence to prove that the two insurance compensation payment methods are agreed by both parties or the legal provisions of the installment payment method, so the two insurance compensation statute of limitations should be calculated separately. The limitation period for the first insurance compensation is from June 10, 2013 to June 9, 2015. Although a law firm in Beijing sent a lawyer's letter claiming compensation to a scientific research institute in Chengde City through EMS on June 9, 2015, the lawyer's letter did not attach the authorization document of a Beijing branch of an insurance company, and it cannot be determined that it claimed rights from a certain company in Chengde City based on the authorization act, and the lawyer's letter did not arrive on June 9, 2015, there is no interruption of the statute of limitations for the first insurance compensation. The judgment of the original court that after the Beijing branch of an insurance company paid the first insurance compensation of 2500000 yuan to a Tianjin company, it claimed this right to a scientific research institute in Chengde city after two years of limitation of action was found to be not improper. The scope of the Beijing branch of an insurance company exercising the right of subrogation as an insurer is limited to the insurance compensation paid in accordance with the provisions of Article 60 of the Insurance Law. The judgment of the court of first instance against the claim of interest of an insurance company Beijing Branch was not supported, and there was nothing improper. In summary, the appellant's appeal request from the Beijing branch of an insurance company cannot be established and should be rejected. The first-instance judgment has clear facts and the applicable law is correct and should be maintained. The retrial court held that] On the question of whether an insurance company's Beijing branch claimed to a Chengde academy of sciences whether the 2500000 yuan insurance compensation exceeded the statute of limitations. The Supreme People's Court on the application
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A private equity fund (Private Fund) is an investment fund that raises funds from specific investors in a non-public manner and invests in a specific target. Private equity funds are recruited by means other than mass communication, and the promoters pool the funds of non-public diversified subjects to set up investment funds to invest in securities. With the improvement of China's financial and economic system, private equity funds have become a financial investment method recognized and supported by the state. At the same time, in order to regulate private equity fund activities, protect the legitimate rights and interests of investors and related parties, and promote the healthy development of the private equity investment fund industry, the China Securities Regulatory Commission has successively formulated and implemented the Interim Measures for the Supervision and Administration of Private Equity Investment Funds, and Securities and Futures Laws and regulations such as the Interim Provisions on the Operation and Management of Private Equity Asset Management Business of Operating Institutions, and the Provisions on Strengthening the Supervision of Private Equity Investment Funds. From the definition of private equity funds can be seen, fund raising, investment, the pursuit of return is the core of the main line of private equity funds. Private equity funds can easily trigger legal risks in the process of product design, management and operation, and even exit, especially the criminal legal risks of illegal fund-raising. According to the statistics of judicial practice, illegal fund-raising crimes have become the top ten high-incidence crimes among the 483 crimes in the Criminal Law, and more than 70% of the crimes triggered by private equity activities are illegal fund-raising crimes. Therefore, practitioners and related personnel in the field of private equity funds should pay close attention to the criminal legal risks of illegal fund-raising, and prevent violations of criminal law due to improper operation and triggering criminal legal risks. Illegal fund-raising is an act of absorbing funds from the public (including units and individuals) in violation of national financial management laws. In view of the complexity of illegal fund-raising criminal activities, in order to facilitate practical grasp, the "Judicial Interpretation of Illegal Fund-raising" specifically refines the elements of illegal fund-raising behavior, and clarifies that the establishment of illegal fund-raising needs to be illegal, open, inducement, and social. Four characteristics:(1) Absorbing funds without the approval of relevant departments in accordance with the law or borrowing the form of legal operations;(2) Publicize to the public through the media, promotion conferences, leaflets, mobile phone text messages, etc.;(3) Promise to repay the principal and interest or pay returns in currency, in kind, equity, etc. within a certain period of time;(4) To absorb funds from the public, that is, non-specific objects of society. 1. to avoid violating the national financial management laws and regulations, to prevent the violation of "illegal" characteristics With regard to private equity funds, China adopts the registration and filing system of the China Securities Investment Fund Industry Association, that is, the fund manager needs to register with the fund industry association; after the private equity fund is raised, the private equity fund manager shall, in accordance with the provisions of the fund industry association, handle the fund filing procedures. The above registration and filing are mandatory provisions, and fund managers must strictly abide by them. Violation of the above provisions is "violation of national financial management laws and regulations" and "without the approval of relevant national competent departments". Article 1 of the "Opinions on Several Issues Concerning the Handling of Criminal Cases of Illegal Fund-raising" issued by the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security in January 2019 stipulates the basis for determining the "illegality" of illegal fund-raising. The people's courts, people's procuratorates, and public security organs shall determine the "illegality" of illegal fund-raising based on national financial management laws and regulations. If the national financial management laws and regulations are only stipulated in principle, they can be determined in accordance with the spirit of the law and with reference to the departmental rules formulated by the people's Bank of China, the China Banking and Insurance Regulatory Commission, the China Securities Regulatory Commission and other administrative departments in accordance with the national financial management laws and regulations or the provisions of the state's relevant financial management regulations, measures, implementation rules and other normative documents. Accordingly, the "Interim Measures for the Supervision and Administration of Private Investment Funds" and other provisions issued by the China Securities Regulatory Commission can be used as a legal basis for judging whether private equity behavior has the characteristics of "illegality. Because the "Interim Measures" have made relevant provisions on the qualifications of fund-raising entities, fund-raising methods, fund-raising objects, and sources of fund-raising, violating these provisions is also a violation of "violation of national financial management laws and regulations". Of course, it is not that private equity funds have full legitimacy as long as they have gone through the registration and filing procedures, but failure to carry out legal registration and filing directly violates the constitutive element of "without the approval of the relevant national authorities. 2. standardize the way funds are raised to prevent violations of the "openness" feature. Private placement, as the name implies, is limited to "non-public" in the way of raising funds ". Article 6 of the "Several Provisions on Strengthening the Supervision of Private Equity Investment Funds" of the China Securities Regulatory Commission clearly stipulates that "private equity fund managers, private equity fund sales agencies and their employees shall not directly or indirectly have the following behaviors in the process of private equity fund raising: through newspapers, radio, Television, Internet and other public communication media, lectures, reports, analysis meetings, etc, notices, leaflets, text messages, instant messaging tools, blogs and e-mails and other carriers to promote and promote to unspecified targets." Therefore, any form of public communication, direct, indirect or otherwise, is prohibited by regulation. Private equity fund managers, private equity fund sales institutions and their practitioners should strictly abide by this provision, otherwise they will violate the "openness" feature. 3. improve the examination measures of qualified investors, penetrate the examination of qualified investors, and prevent the violation of "social" characteristics. According to the Measures for the Administration of the Suitability of Securities and Futures Investors, the Measures for the Administration of Private Investment Fund Raising Behavior, and the Instructions for the Filing of Private Investment Funds, private equity fund managers, private equity fund sales agencies and their practitioners should conduct the following two aspects Review. First, the verification of investors' risk identification ability and affordability. The specific verification standards are clearly stipulated in the "Measures for the Supervision and Administration of Private Investment Funds": (1) The amount invested in a single private equity fund shall not be less than 1 million yuan;(2) The net assets of unit investors shall not be less than 10 million yuan;(3) Personal financial assets shall not be less than 3 million yuan or the average annual personal income in the last three years shall not be less than 500000 yuan." Second, the number of qualified investors is limited: the number of investors in a single private equity fund shall not exceed the number of restrictions stipulated in the Company Law, the Partnership Law, and the Securities Investment Fund Law. The maximum number of legal fundraisers for partnership and corporate private equity funds is 50. In terms of review measures, it is possible to verify whether the investor (legal person) meets the criteria for qualified investors by reviewing the year-end net assets, audited financial statements, financial asset supporting documents, personal annual income and other evidentiary materials. Where a private equity fund manager sells private equity funds on its own, it shall adopt questionnaires and other methods to evaluate the investor's risk identification ability and risk-bearing ability, and the investor shall make a written commitment to meet the conditions of qualified investors. Where a private equity fund manager entrusts a sales agency to sell a private equity fund, the private equity fund sales agency shall take the measures such as the evaluation and confirmation provided for in the preceding paragraph. The content and format guidelines of the questionnaire and risk disclosure letter of investors' risk identification ability and bearing ability are formulated by the fund industry association according to the characteristics of different types of private equity funds. In response to the phenomenon of "holding on behalf" to circumvent the restrictions on the number of private equity funds and investment limits, the "Instructions for the Filing of Private Equity Funds" stipulates: "For private equity funds invested in the form of partnerships and other illegal entities, the raising institution shall penetrate to verify whether the final investor is a qualified investor and calculate the number of investors in combination." In response to the issue of private equity fund share transfer, the "Private Investment Fund Filing Instructions" stipulates: "The fundraising institution shall ensure that the investor is aware of the private equity fund transfer conditions, and the investor shall promise in writing to purchase the private equity fund for himself, and complete the private equity fund risk disclosure After that, the fundraising institution shall require investors to provide necessary asset certification documents or income certification." At the specific operational level of private equity funds, the qualification verification of qualified investors is an important aspect to ensure the legitimacy of the object of raising funds, and also an important guarantee to ensure that private equity funds raise funds from "specific objects. 4. standardize propaganda behavior, grasp the distribution principle of benefit sharing, risk sharing, risk and income matching, and prevent the violation of "inducement" characteristics. Article 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising stipulates: "Violation of national financial management laws and regulations, the act of absorbing funds from the public (including units and individuals) meets the following four conditions. Unless otherwise provided in the Criminal Law, it shall be deemed as" illegal absorption of public deposits or absorption of public deposits in disguised form "as stipulated in Article 176 of the Criminal Law: promise to repay principal and interest or pay returns in money, in kind, equity, etc. within a certain period of time." This is the provision for the "inducement" feature, which is commonly referred to as "capital preservation". And private equity fund is a kind of investment behavior, income and risk go hand in hand. Private equity fund managers and private equity fund sales institutions shall not promise investors that the principal of the investment shall not be lost or that the minimum return shall be promised, the expected return shall not be promised, and the performance comparison shall not be publicized. The Interim Provisions on the operation and management of private equity asset management business of securities and futures operating institutions issued by China Securities Regulatory Commission clearly states that "securities and futures operating institutions and relevant sales institutions shall not sell asset management plans in violation of regulations, and shall not have improper publicity, mislead and cheat investors, or promise to investors in any way without loss of principal or minimum income, Including but not limited to the following situations: there are expressions in asset management contracts and sales materials that contain the connotation of capital preservation, such as zero risk, guaranteed income, and worry-free principal; The name of the asset management plan contains the word "capital preservation"; sign repurchase agreements or commitment letters and other documents with investors in private, and directly or indirectly promise capital preservation and income protection; promise capital preservation and income protection to investors orally or through various methods such as SMS and WeChat; Promote the expected rate of return of the asset management plan to investors; Exaggerate or one-sided promote products, exaggerated or one-sided publicity of the past performance of the asset management plan manager and the products under his management, investment managers, etc., did not fully disclose the product risks, and investors did not sign risk disclosure letters and asset management contracts when subscribing to the asset management plan. For structured funds that are more likely to violate the characteristics of "inducement" in judicial practice, the "Interim Regulations" specifically clarify: "The establishment of structured asset management plans by securities and futures operating institutions shall not violate benefit sharing, risk sharing, and matching of risks and returns. The following situations shall not exist: (1) Directly or indirectly provide capital protection and income arrangements to subscribers of priority shares, including but not limited to the provision of priority share income, early termination penalty interest, inferior or third-party institutions to make up the difference of priority income, provision of risk margin to make up the priority income, etc. agreed in the contract of structured asset management plan; (II) fail to conduct sufficient and appropriate due diligence on the identity and risk bearing capacity of inferior share subscribers of structured asset management plan; the (III) fails to fully disclose and disclose the structured design and corresponding risk situation, income distribution, wind control measures and other information in the asset management contract; The leverage ratio of (IV) stock and hybrid structured asset management plans exceeds 1 times, the leverage ratio of fixed income structured asset management plans exceeds 3 times, and the leverage ratio of other types of structured asset management plans exceeds 2 times. It is (V) to check the investment target of structured asset management plans through penetration, the structured asset management plan nests and invests in the inferior share of other structured financial products; the name of the (VI) structured asset management plan does not contain the words" structured "or" graded "; the total assets of the (VII) structured asset management plan account for more than 140 per cent of net assets, and the total assets of the unstructured collective asset management plan (I. e." one-to-many ") account for more than 200 per cent of net assets." On the issue of credit enhancement measures such as guarantees provided by third parties. First of all, the credit enhancement measures can not be simply identified as "capital preservation and income protection"; second, it is not prohibited to take relevant credit enhancement measures in the asset management plan from the level of laws and regulations; third, it should be legal, true and effective in the implementation of third-party credit enhancement measures, so as to prevent the occurrence of credit enhancement measures as a means of "capital preservation and income protection" in disguise. With respect to premium repurchase and gambling agreements, attention should be paid to the design of the trigger clause in the Equity or Fund Share Repurchase Agreement to prevent the occurrence of an agreement on the contingency of the achievement of the condition as inevitable. With regard to the dividend mechanism, the issue of the source of dividend funds should be strictly grasped. Dividend funds should be derived from the investment income of the fund, not the fund itself, otherwise it may be found to be in line with the characteristics of "inducement" in judicial practice.
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Viewpoint | From an intentional injury case to see "intentional injury"
1. brief Sun is an employee of a certain industrial and commercial bureau. He found Shen, the director of the bureau, because of work problems and asked Shen to solve the problem for him. Shen mou has arranged to go out to receive guests, so he asked sun mou to come back in the afternoon and prepare to go out by bus. Sun did not agree, insisted on letting Shen solve the problem for him now, and grabbed the rearview mirror of Shen's vehicle to prevent him from leaving. Several colleagues from the same unit came to persuade Sun to let go of the rearview mirror and let Shen receive the guests first, but Sun did not let go and insisted that Shen solve the problem. Seeing this situation, Shen decided to let others go out to receive guests instead of himself, and invited Sun to go to the unit canteen for lunch with himself. Sun still disagreed, and Shen went to Sun to pull Sun to the canteen for dinner. Sun disagreed and pushed Shen's chest. Later, Shen and Sun both fell to the ground. When Shen fell, his right wrist landed first. The hospital film showed that Shen had a comminuted fracture of his right wrist. After injury identification, Shen's right wrist comminuted fracture constitutes minor injury grade II. 2. jurisprudence analysis The crime involved in this case is the crime of intentional injury, and its basic meaning is: the perpetrator's illegal injury to others causes the consequences of minor injury or more, and the perpetrator has a hopeful or laissez-faire attitude towards the consequences of the injury, which constitutes the crime. In this case, according to Sun's confession, he broke off the mirror of the car, and Shen pulled him to eat. His hand couldn't hold on to let go, causing both of them to fall. According to the testimony of the victim Shen and other witnesses, when Shen pulled Sun, Sun was between Shen's feet and pushed Shen with his hand, causing Shen to fall. Whether it is Sun's confession, the victim's statement or the witness's testimony, it can be seen that the result of the victim Shen's right wrist injury has a causal relationship with Sun's behavior. In this case, it is necessary to further examine whether Sun's subjective aspect has intentionally hurt Shen. In the view of some judicial officers, any misconduct (such as minor violence or general assault) may cause harm, and the perpetrator is aware that his or her actions will result in harm. That being the case, the perpetrator nevertheless committed misconduct, indicating that the perpetrator wished or allowed the outcome to occur. Thus, as long as a certain act causes minor injury, the perpetrator bears criminal responsibility for the crime of intentional injury. However, from a conceptual point of view, this approach is a remnant of the responsibility for the result, that is, as long as the victim is slightly injured, even if the perpetrator is not intentional or even negligent, the perpetrator must be held criminally responsible for the crime of intentional injury. From the theory of criminal law, this kind of practice adopts the abstract conformity theory in the intentional judgment. Article 14 of my country's "Criminal Law" stipulates: "Those who know that their actions will result in harm to society, and hope or allow such results to occur, thus constituting a crime, are intentional crimes." The "own behavior" refers to the concrete behavior that causes harmful results, rather than the behavior in the abstract general sense. Even in the abstract sense, minor violence or general assault may cause minor injuries, but the behavior is always performed in a specific time and space. Moreover, from the general social experience, the vast majority of minor violence or general beatings are difficult to cause minor injuries. When the perpetrator carries out minor violence or general beating on a specific object, especially when the behavior is not continuous and continuous, and only pushes or hits, even if minor injuries are caused, the perpetrator should not be deemed to have intentional injury. The Supreme People's Procuratorate's evaluation of the Fuzhou Zhao Yu case believes that "although there is a serious injury result, the intention of injury cannot be introduced", and this serious injury result is not deliberately pursued by Zhao Yu subjectively, but the result of negligence. Specific to the case of sun suspected of intentional injury, we can see whether sun has "criminal intention to hurt Shen" subjectively from the following two aspects ". On the one hand, Sun's purpose of looking for Shen that day was to let him solve his work problems, not to hurt Shen. The result of Shen's injury is not only not what he subjectively pursues, but also what Sun subjectively rejects; on the other hand, even if Sun stumbles Shen with his foot and pushes him with his hand, it will not cause harm to others under normal circumstances. It is difficult for Sun to foresee that Shen's comminuted fracture of his right wrist after falling to the ground constitutes a minor injury. Moreover, the physical condition of the victim Shen in this case is not special. In this case, it is difficult to determine that Sun has the intention of "knowing that his behavior will result in bodily harm to others, and hoping that others will be physically harmed. In other words, Sun is only negligent in the minor injury to the victim, but the act of causing minor injury through negligence does not establish a crime. Therefore, Sun's behavior should not be treated as a crime. Summary Compared with the Zhao Yu case, Zhao Yu's behavior of stepping on and kicking others in the abdomen was found not to have the intention of injury, and in this case, Sun's tripping or pushing was even more not found to have the intention of injury. In addition, when the cause of the victim Shen's injury is unknown and Sun does not plead guilty, it is not appropriate to determine that Sun's behavior is suspected of intentional injury.
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(I) of Vision of Administrative Litigation | Scope of Administrative Litigation
Foreword The scope of administrative litigation is an important theoretical and practical issue in administrative litigation. In short, it refers to which cases the people's court can accept as administrative cases. It determines which administrative actions citizens, legal persons and other organizations in administrative legal relations can bring administrative litigation relief, and also determines the scope of administrative power restricted by judicial power. The Concept and Nature of the Scope of Accepting Cases in 1. Administrative Litigation The scope of accepting cases in administrative litigation refers to the scope of accepting administrative cases by the court, that is, the jurisdiction of the court to accept and try administrative cases. From the point of view of the judicial power of the court, it refers to the judicial review power of the court over which administrative acts of the administrative organ; from the point of view of the administrative organ, it refers to which acts of the administrative organ will be supervised by the people's court; from the point of view of the administrative counterpart, it means that the counterpart can sue the people's court when he is not satisfied with which administrative acts. Not all administrative disputes can bring administrative litigation to the court. Only when the administrative dispute is within the scope of accepting cases stipulated by law, the administrative relative can bring administrative litigation. The scope of accepting cases is an important issue in administrative litigation and an important symbol that distinguishes administrative litigation from other litigation. The scope of administrative litigation cases accepted by the people's courts determines the scope of supervision by judicial organs over the actions of administrative subjects, the scope of administrative litigation brought by citizens, legal persons and other organizations infringed by administrative subjects, and the scope of the power of final administrative adjudication. 2. Legal Provisions on the Scope of Accepting Cases in Administrative Litigation On the whole, China's current legislation uses a combination of generalization, positive and negative enumeration to provide for the scope of administrative litigation. (I) General Provisions The first paragraph of Article 1 of the Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's the People's Republic of China of China (Law Interpretation No. 1 [2018], hereinafter referred to as the "Interpretation of the Administrative Litigation Law") stipulates in a general manner the scope of administrative litigation, that is, "Citizens, legal persons or other organizations that are dissatisfied with the administrative actions of administrative agencies and their staff and file lawsuits in accordance with the law shall fall within the scope of the people's courts". (II) the positive list and cover the bottom. Article 12 of the the People's Republic of China Administrative Procedure Law (amended in 2017, hereinafter referred to as the "Administrative Procedure Law") stipulates the scope of administrative litigation accepted by the people's court in two paragraphs by specifically enumerating and covering the bottom, that is, "the people's court shall accept the following lawsuits brought by citizens, legal persons or other organizations: (1) those who are not satisfied with administrative penalties such as administrative detention, temporary suspension or revocation of permits and licenses, order to suspend production or business, confiscation of illegal gains, confiscation of illegal property, fines, warnings, etc.; (II) those who are not satisfied with administrative compulsory measures such as restriction of personal freedom or the seizure, seizure or freezing of property; (III) the administrative organ refuses or fails to reply within the statutory time limit for the application for administrative license, or refuses to accept other decisions made by the administrative organ on administrative license; (IV) refuses to accept the decision made by the administrative organ on confirming the ownership or right to use of natural resources such as land, mineral deposits, water flows, forests, mountains, grasslands, wastelands, beaches, sea areas, etc.; (V) refuses to accept the decision on expropriation, requisition and compensation; (VI) the administrative organ refuses to perform or fails to reply to the application for the administrative organ to perform its legal duties of protecting personal rights, property rights and other legitimate rights and interests; (VII) believes that the administrative organ infringes on its management autonomy or rural land contractual management right or rural land management right; (VIII) believes that the administrative organ abuses its administrative power to exclude or restrict competition; (IX) believes that the administrative organ illegally raises funds, apportions expenses or illegally requests to perform other obligations; the (X) believes that the administrative agency has not paid pensions, minimum living security benefits, or social insurance benefits in accordance with the law; (11) It believes that the administrative agency has not performed in accordance with the law, failed to perform in accordance with the agreement, or illegally changed, or terminated the government franchise agreement, and the land and house expropriation compensation agreement And other agreements; (12) It is believed that the administrative agency infringes other legal rights and interests such as personal rights and property rights. In addition to the provisions of the preceding paragraph, the people's court shall accept other administrative cases that may be brought by law and regulations." (III) negative provisions Article 13 of the Administrative Litigation Law lists in a negative way the matters that are not accepted in administrative litigation, that is, "the people's court shall not accept lawsuits brought by citizens, legal persons or other organizations on the following matters: (1) national defense, foreign affairs and other state acts; (II) administrative regulations, rules or decisions and orders with general binding force formulated and issued by administrative organs; (III) administrative organs' decisions on rewards and punishments, appointment and removal of staff of administrative organs; an administrative act that is finally decided by an administrative organ as prescribed by (IV) law." The second paragraph of Article 1 of the Judicial Interpretation of the Administrative Procedure Law also lists in a negative way the acts that do not fall within the scope of administrative litigation, that is, the following acts do not fall within the scope of administrative litigation of the people's courts: (1) acts carried out by public security, national security and other organs in accordance with the explicit authorization of the Criminal Procedure Law; acts of (II) mediation and arbitration as prescribed by law; (III) acts of administrative guidance; (IV) the repeated handling acts of rejecting the party's complaint against the administrative act; the act of (V) the administrative organ that does not produce external legal effect; the preparation, demonstration, research, layer reporting, consultation and other procedural acts carried out by the (VI) administrative organ for the purpose of making the administrative act; the execution act made by the (VII) administrative organ in accordance with the effective judgment of the people's court and the notice of assistance in execution, however, except for administrative agencies that expand the scope of enforcement or adopt illegal methods; (VIII) higher-level administrative agencies to listen to reports, law enforcement inspections, and supervise the performance of responsibilities to lower-level administrative agencies based on internal hierarchical supervision relationships; (IX) administrative agencies to register for letters and visits, Acceptance, assignment, transfer, review, review opinions, etc; (X) acts that do not actually affect the rights and obligations of citizens, legal persons or other organizations." Types and Characteristics of 3. Administrative Acts According to the above provisions, the actionable administrative acts can be summarized as: specific administrative acts; administrative factual acts; administrative agreements; other administrative cases that can be sued by laws and regulations. (I) specific administrative acts A specific administrative act is an act of administrative law that is unilaterally made by an administrative agency in response to a specific event, has external effects, and contains administrative inaction. Specific administrative acts have the characteristics of unilateral, individual and legal effect. 1. Unitarity. Refers to the fact that the legal effect is based on the unilateral meaning of the administrative organ. The production of legal effect is determined by the administrative organ unilaterally, which is the embodiment of administrative coercive force and reflects the inequality between the two sides of the administration. This is different from the administrative agreement in which the relative person participates in the meaning. 2. Individuality. Refers to the administrative action is made for a specific person, specific events. Generally binding administrative acts that are not directed at specific persons or specific matters are not specific administrative acts, but abstract administrative acts, which are not actionable. 3. legal effect. Refers to the direct external legal effects of the act. Contains the following points: direct, means that the legal effect must occur directly to the relative, once the administrative act is done, it will lead to the creation, change and elimination of the rights and obligations of the relative. Externally, it refers to the legal effect of administrative acts on persons other than the administrative subject, the exchange of views between administrative organs or within administrative organs, internal supervision and guidance and other administrative internal acts are not justiciable due to lack of external nature (see (2017) Administrative Judgment No. 295 of the Supreme Law). In addition, the act produces a legal effect, is legally binding, and aims to generate, change, and eliminate the rights and obligations of the counterpart (including substantive law and procedural law), such as the rejection of the application of the recipient, and only produce The administrative fact that the result is different. Legal validity also includes the characteristics of binding force and compulsion. Administrative acts that do not have legal binding force on the rights and obligations of the relative person do not have legal validity, such as administrative guidance and administrative mediation. (II) administrative factual acts Administrative factual acts can directly produce factual effects. This kind of behavior objectively has no legal effect, subjectively does not produce legal effect. The act itself cannot produce the creation, change and elimination of legal relations in administrative law, nor does its purpose be to produce, change or terminate the rights and obligations of the relative, but only the actual profit and loss in the result. Such as the act of forced demolition, although the result of the demolition caused losses to the relative person, but the purpose of the demolition act is not to create an obligation to the relative person, but in the case of the relative person does not perform the demolition obligation to make a factual act of the pursuit of the result of the fact. The reason why administrative factual acts are included in the scope of litigation is that the administrative factual acts are only uncertain of the rights and obligations of the parties in terms of content, not that they do not affect the rights and interests of the parties in terms of consequences, and their inclusion in the scope of administrative litigation is conducive to protecting the legitimate rights and interests of administrative counterparts and standardizing the law enforcement behavior of administrative personnel. (III) administrative agreement Article 12, paragraph 1, item 11 of the Administrative procedure Law brings administrative agreements into the scope of accepting cases in the Administrative procedure Law. Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases (Fa Shi [2019] No. 17) stipulates the definition of an administrative agreement, and Article 4 includes all disputes arising from the conclusion, performance, modification and termination of an administrative agreement into the scope of accepting cases. Whether an agreement is an administrative agreement or a civil agreement, from the perspective of court judgments in practice, there are three main criteria for judging: first, one of the parties to the agreement is an administrative agency; second, the content of the agreement involves rights and obligations in administrative law; Third, the purpose of the agreement is to achieve public interest or administrative management goals. Other administrative cases that may be instituted in (IV) with the provisions of laws and regulations 1. The administrative acts stipulated in the Administrative Procedure Law include administrative acts made by organizations authorized by laws, regulations and rules. Therefore, even if the subject of the act is not an administrative agency, as long as the act is authorized by laws, regulations and rules, the act is regarded as an administrative act and is actionable. 2. Government information disclosure behavior. Article 51 of the regulations on the Disclosure of Government Information of the the People's Republic of China gives citizens, legal persons or other organizations the right to bring administrative proceedings against the disclosure of government information by administrative organs. 3. Administrative reconsideration cases. Article 5 of the "the People's Republic of China Administrative Reconsideration Law" stipulates the right of citizens, legal persons or other organizations to initiate administrative litigation against administrative reconsideration decisions, except where the law stipulates that administrative reconsideration decisions are final. 4. Administrative compensation. Administrative compensation refers to the legal exercise of administrative power by the administrative subject, which damages the legitimate rights and interests of the administrative counterpart, or when the administrative counterpart damages his legitimate rights and interests for the public interest, the state makes up for the loss of the administrative counterpart. The "Reply of the Supreme People's Court on Accepting Housing Demolition, Compensation, Resettlement and Other Cases" once stipulated: "Citizens, legal persons, or other organizations are related to housing demolition, compensation, resettlement and other issues made by the people's government or the urban housing administrative agency in accordance with their powers. If the ruling is not satisfied, the people's court shall accept a lawsuit as an administrative case." 5. Administrative compensation. Article 2 of the "the People's Republic of China State Compensation Law" stipulates: "If a state agency or a staff member of a state agency violates the lawful rights and interests of citizens, legal persons, and other organizations in the illegal exercise of powers and causes damage, the victim has the right to obtain state compensation in accordance with this law." Article 2 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Compensation Cases" stipulates: "If the compensation claimant confirms that the specific administrative act is illegal but decides not to compensate, or has objections to the determined amount of compensation, the people's court shall accept the administrative compensation lawsuit." 6. Administrative public interest litigation. In the course of performing its duties, the people's Procuratorate finds that administrative organs responsible for supervision and management in the fields of ecological environment and resource protection, food and drug safety, state-owned property protection, transfer of state-owned land use rights, and protection of heroic memorial facilities have illegally exercised their functions and powers or failed to act, resulting in infringement of national interests or social public interests, Procuratorial recommendations shall be made to the administrative organs to urge them to perform their duties in accordance with the law. If the administrative organ still fails to perform its duties in accordance with the law after being urged by the procuratorial organ, and the national interests or social public interests are in a state of infringement, the people's procuratorate shall file an administrative public interest lawsuit in accordance with the law. Characteristics of non-actionable administrative acts in 4. Not all administrative acts are actionable. Combined with the provisions of laws and judicial interpretations and court decisions, non-actionable administrative acts have the following characteristics: (I) administrative act is not directed at a specific person or event and is not actionable. If an administrative act is aimed at an unspecified person, it cannot be sued, but attention should be paid to the judgment of the administrative act of a specific and determined group of people with a large number of people. This type of administrative act is an actionable administrative act. For example, in the case of Huang Shaohua v. Huixian municipal government to raise the pension standard, the pension standard for more than 1700 migrant workers belongs to this group of specific personnel, which should be a specific administrative act and can be sued. Internal acts of (II) administrative organs are generally not actionable. Behaviors such as listening to reports, law enforcement inspections, supervision and performance of responsibilities between administrative agencies, internal meeting minutes, rewards and punishments, appointments and dismissals, and mediation and guidance that are not legally binding and coercive do not directly have legal effect to the outside world. It is actionable. However, when the revocation or change of the original administrative act by the higher administrative organ has a substantial impact on the rights and obligations of the parties, this kind of internal supervision is external and can be sued. For administrative acts that require the approval of a higher authority and are made by a lower authority in the joint name of a higher authority and a lower authority, the approval of the higher authority has been externalized and is justiciable. (III) administrative acts that do not actually affect the rights and obligations of the administrative counterpart shall not be sued. Such acts include the repeated handling of complaints filed by the parties to the administrative act, the execution of the administrative organ in accordance with the effective judgment of the people's court, the notice of assistance in execution, etc., except for the administrative organ's expansion of the scope of execution or the act of assistance in execution in an illegal manner. If the people's government identifies the community as a shantytown, it does not have a substantial impact on the rights of the administrative counterpart and cannot be sued. The act of the government changing the property right of the relative person's house according to the court's notice of assistance is not actionable. However, at the request of other departments, the administrative organ exercises its administrative functions and powers in accordance with its own will, and makes specific administrative acts independently on specific matters, which have a substantial impact on the rights of the administrative counterpart and are actionable. At this time, the requirements of other departments are only the cause of initiating specific administrative acts and are not actionable. (IV) procedural administrative line, not actionable For example, non-performance of procedural obligations such as the service of notice, non-litigation. However, if a procedural administrative act does have an impact on the legitimate rights and interests of the counterparty, and because the final substantive decision cannot be made, the process cannot be made.
2021-12-14
13
2021-12
Abstract: China's law adopts the "three-point method" for company resolutions, including non-establishment, invalid and revocable. The company's resolution is invalid because the content of the resolution is seriously flawed, that is, its content violates laws and administrative regulations. The invalidity of a company resolution is statutory from the beginning and does not apply the statute of limitations. Keywords: company resolution invalid content serious defects The act of corporate resolution is a civil legal act of a certain procedural nature made by the legal person of the company in accordance with the method of discussion and voting procedures stipulated by the law or the articles of association. As a kind of civil legal act, the company resolution must meet the establishment requirements of civil legal act, that is, the resolution must be made by the shareholders' meeting or the board of directors, and the final voting result represents the true intention of the corresponding proportion of shareholders or directors. As the company's intention, the company's resolution can only have legal effect if the procedure and content of the resolution are legal and fair. Our law adopts the "trichotomy" for corporate resolutions, which includes three categories: non-establishment, invalidity and revocability. The company's resolution is invalid because the content of the resolution is seriously flawed, that is, its content violates laws and administrative regulations. 1. relevant mandatory legal provisions Article 4 of the Company Law "Inherent Rights of Shareholders of a Company (Income from Assets, Participation in Major Decisions, Selection of Managers)." Article 16 "The provisions of the company's guarantee (the guarantee for others shall be resolved by the board of directors or the shareholders' meeting or the general meeting of shareholders in accordance with the provisions of the articles of association, and the guarantee for shareholders or the actual controller shall be avoided by the resolution of the shareholders' meeting or the general meeting of shareholders, and the voting of the shareholders controlled by the above-mentioned shareholders and the actual controller shall be passed by more than half of the voting rights of other shareholders present at the meeting)." Article 20 "The shareholders of the company shall not abuse the provisions of the rights of shareholders. (The rights of shareholders shall not be abused to the detriment of the interests of the company, other shareholders and creditors)", Article 21 "The related relationship to the detriment of the interests of the company." Article 34 "The provisions on the distribution of dividends and the subscription of capital contributions. (Shareholders shall share dividends and subscribe for additional capital contributions in proportion to their actual contributions, unless otherwise agreed by all shareholders.)" Article 16 of the (III) for Judicial Interpretation of the Company Law "Provisions on Reasonable Limitation of Shareholders' Rights. (Failure to fulfill or fully fulfill the obligation of capital contribution or withdrawal of capital contribution, the right to request profit distribution, the right to subscribe for new shares, the right to distribute surplus property, etc. may be restricted in accordance with the Articles of Association or the resolution of the shareholders' meeting)", Article 17 "The provision of disqualification of shareholders. (Failure to fulfill the obligation to contribute or to withdraw all the capital contribution, and failure to make up for it within a reasonable period of time after being urged may disqualify the shareholder.)" Article 59 of the "Civil Servants Law" stipulates that "civil servants shall not take shares and hold posts concurrently." The statute of limitations is not applicable to the lawsuit that the 2. confirms the invalidity of the company's resolution. It is generally believed that the statute of limitations applies to claims and primarily to claims, I .e., the statute of limitations may apply only if the right holder requests a particular act or not for a particular act. The exorcism period applies to the right of formation, the application of the exorcism period is usually expressly provided by law, the law only provides for the application of the exorcism period for the revocation of the resolution, and for the invalidity of the company's resolution. The invalidity of the company's resolution is invalid from the beginning and is not subject to the limitation period. In the second instance of Dong Fangdi v. Zhu Hong Company's resolution dispute ((2018) Hu 01 Min Zhong No. 6946), the court held that the original application of Zhu Hong, Sha Yan and Chen Xiaoying confirmed that the resolution of the shareholders' meeting was invalid, and the object of the application was not the right to claim creditor's rights. Therefore, the limitation of action was not applicable to the original application of Zhu Hong, Sha Yan and Chen Xiaoying. In the second instance of the dispute over the resolution of Yin Yongqiang and Gu Yalin Company ((2020) Ji 01 Min Zhong No. 626), the court held that Gu Yalin's lawsuit in this case was to confirm that the company's resolution was invalid. The court of first instance held that the claim was a right of formation, and the statute of limitations was not applicable and there was nothing improper. Determination of the Eligible Plaintiff 3. to Initiate the Invalidation of the Confirmation Resolution Company resolutions, as internal resolutions, have internal effect only, not external effect. The creditors of the company, as outsiders of the company, are generally not bound by internal resolutions of the company. Under normal circumstances, the company's resolution does not have a direct legal relationship with the creditor, unless the creditor and the company signed a contract with the relevant express agreement, otherwise, the creditor has no practical legal interest in intervening in the dispute over the validity of the company's resolution. A shareholder in the legal sense refers to a shareholder recorded in the company's register of shareholders and registered by the company's registration authority, and an anonymous shareholder is not a shareholder in the sense of the company law, and generally has no right to independently claim that the company's resolution is invalid until the company confirms its shareholder status. In the civil ruling case of the second instance of the dispute over the confirmation of the validity of the resolution of Anhui Longzhi Construction Investment Co., Ltd. and Anhui Outlets Investment Co., Ltd. ((2020) Wan 01 Min Zhong No. 3867), the court held that although Longzhi Construction Company was no longer a shareholder of Outlets Company in terms of industrial and commercial registration when the resolution of the shareholders' meeting involved in the case was made, Longzhi Construction Company was an industrial and commercial registered shareholder of Outlets Company, and the resolution of the shareholders' meeting also contains the opinions on the transfer of equity of Longzhi Construction Company and the corresponding changes in the equity structure of the company. As a shareholder at the time of the formation of the resolution of the shareholders' meeting, Longzhi Construction Company is an internal member of the company, and its interest in the resolution of the shareholders' meeting is not only in the maintenance of individual rights and interests, but also in the supervision of the legality of the company's actions. Therefore, there is no need to determine the relationship between the resolution of the shareholders' meeting involved in the case and the result of the equity transfer. Even if the existence of the resolution of the shareholders' meeting is not the fundamental reason why the equity of Outlets Company enjoyed by Longzhi Construction Company was transferred to Nikpu Company, which is an outsider, it cannot be used to push Longzhi Construction Company not to have any litigation interest in confirming the invalidity of the resolution of the shareholders' meeting. In the first instance of the dispute over the validity confirmation of the resolution between you zhuofan and Shenzhen huate city construction and development co., ltd. ((2018) yue 0303 min Chu no 12310), the court held that: except shareholders, directors and supervisors, other personnel need to prove that they have a direct interest in the content of the company's resolution before they can be qualified plaintiffs. In this case, the plaintiff was only a general creditor of the defendant, not an insider of the company, nor a bondholder or creditor who may have a voting arrangement, and there was no direct interest between it and the defendant's corporate resolution, but only a contract of debt and debt type with the company as the subject. The contract between the plaintiff and the defendant belongs to the contract between two independent subjects, and the protection can be realized by applying the existing legal system such as contract law or the right of avoidance. The company resolution made by the defendant is only the internal behavior of the defendant, which belongs to the formation process of the will and even the expression of the will of the unilateral subject of the company, and the plaintiff, as a creditor, has no right of action to negate the effectiveness of the defendant's internal behavior. The determination of the qualified plaintiff in the case of the 4. to confirm the validity of the resolution. According to the provisions of relevant laws and judicial interpretations, the litigation of the validity of corporate resolutions in China only includes three types of litigation: the invalidity of the resolution, the revocation of the resolution and the non-establishment of the resolution, and does not include the confirmation of the validity of the resolution. The three kinds of corporate resolution validity litigation stipulated in relevant laws and judicial interpretations are designed to give shareholders who may be harmed by defective resolutions to exercise statutory shareholder relief rights to protect their legitimate interests. However, if the shareholder does not take the initiative to bring a lawsuit in accordance with the above-mentioned provisions of the company law and judicial interpretation, the court shall not directly intervene in the affairs of the company's autonomy through the coercive force of the state. The trial of a lawsuit confirming the validity of a company's resolution requires both formal and substantive examination. When conducting a substantive review, it is necessary to make an empirical judgment from the perspective of the commercial subject, and the result is likely to deviate from the spirit of corporate autonomy. The company law and judicial interpretation do not provide for the confirmation of the validity of the company's resolution, which reflects the careful measurement of the relationship between corporate autonomy and judicial intervention. A court that confirms the validity of a resolution is generally inadmissible. The plaintiff who confirms the validity of the resolution should generally take the interest of the lawsuit as the prerequisite, and the determination of whether the interest of the lawsuit is not only based on the existence of a dispute in the legal relationship of the civil entity, but also on whether the legal relationship in dispute constitutes a dispute or the core legal relationship of the lawsuit. In other words, a contested legal relationship cannot be a prerequisite for other disputes or litigation, but only in this way can it have a confirmed interest and can be sued for confirmation. In the second instance of the civil dispute over the resolution of Guangdong Xinhui Bioenergy Co., Ltd., Beijing Xinhui Bioenergy Technology Co., Ltd., Beijing Qing 'an Hongda Bioengineering Technology Co., Ltd., Dongguan Zhongchang Environmental Protection Investment Co., Ltd., and Guangdong Qingda Venture Capital Co., Ltd. ((2020) Yue 19 Min Zhong No. 2622), the court held that the company law and its judicial interpretation did not explicitly exclude the lawsuit confirming the validity of the relevant agreement. Therefore, whether the parties exercise the right of action has the interest of litigation, it should be distinguished according to the specific objective circumstances of different cases, that is, if the validity of the resolution involved in the case is not confirmed, it will affect the legitimate interests of the parties to the lawsuit to confirm the validity of the agreement, resulting in the unstable relationship between the rights and obligations of the parties. In this case, it has the interest of litigation. In this case, the content of the resolution of the board of directors involved in the case involves the change of the legal representative, which is different from the general business and management resolutions of the company. Because the legal representative is in the special status of the company, if the validity of the resolution involved is not confirmed in time, it may cause confusion or obstacles to the operation of the company. Therefore, the two directors in this case filed a lawsuit to confirm the validity of the agreement involved, which has the interest of litigation and falls within the scope of the people's court. In the civil second instance case ((2020) Yue 19 Min Zhong No. 3269) of the dispute over the validity of the resolution of Dongguan Jiahong Education Technology Co., Ltd. and Huang Dongnan and He Zhipeng Company, the court held that: having the interest of litigation should meet the following requirements at the same time: 1. There is sufficient evidence to prove that the validity of the resolution of the shareholders' meeting is not clear, so there are disputes among shareholders; 2. The right or legal status of the shareholder who brought the lawsuit is in real danger or anxiety due to the unclear effect of the resolution of the shareholders' meeting; 3. The interest of the shareholder's lawsuit for confirmation cannot be covered by other claims for payment. In this case, Huang Dongnan claimed that the resolution of the shareholders' meeting formed by the interim shareholders' meeting on March 1, 2019 was valid, while Jiahong Company and He Zhipeng claimed that the resolution was not valid, and there was a dispute between the two parties over the validity of the resolution. Due to the unclear validity of the resolution of the shareholders' meeting, Huang Dongnan was unable to change to the executive director, supervisor and legal representative of Jiahong Company, and went through the corresponding company change registration, which objectively led to Jiahong Company's chaotic operation and management. Therefore, the Court considers that Huang Dongnan has an interest in litigation for the request to confirm the validity of the resolution, and his lawsuit for the validity of the resolution of the shareholders' meeting falls within the scope of the court's case. The resolution on the removal of 5. shareholders shall meet the requirements of procedural and substantive elements. According to the provisions of Article 17 of the Judicial Interpretation (III) of the Company Law, the company may disqualify a shareholder by resolution of the shareholders' meeting, but the following conditions must be met: 1. The shareholder fails to fulfill the obligation of capital contribution or withdraw all capital contribution; 2. The company has fulfilled the pre-procedure of reminder and given shareholders a reasonable time limit to make up for it; 3. The company made a resolution to delist in the form of a resolution of a shareholders' meeting. In addition, the provisions of this article grant the right of delisting of shareholders who fail to fulfill their capital contribution obligations or withdraw all their capital contributions, and on the basis that the actions of the defaulting party have seriously harmed the interests of the company and the rights and interests of shareholders, the defaulting party should not be granted the right of delisting of shareholders who fail to fulfill their capital contribution obligations or withdraw all their capital contributions. In the second instance of the dispute over the validity confirmation of the resolution of Guanling lingnan driving school co., ltd. and Lu rongzhi company ((2017) Qian 04 min zong no 750), the court held that Lu rongzhi, Lu rongtao, tan chenglin, Luo xingju and Wang kaixian should urge Wang changmei to pay and pay the capital within a certain reasonable period of time even if they believed that Wang changmei had failed to fulfill his capital contribution obligation. However, the appellant has no evidence to prove that he has fulfilled the above-mentioned reminder obligation, and Wang Changmei can prove that he has fulfilled the obligation of capital contribution, which does not meet the substantive elements of the shareholder's removal. In the second instance of the dispute over the validity confirmation of the resolution between Huai 'an Ye Chen Real Estate Co., Ltd. and He Bing Company ((2019) Su 08 Min Zhong No. 1434), the court held that in this case, Ye Chen Company made a shareholders' meeting resolution to disqualify He Bing as a shareholder on the grounds that He Bing had withdrawn more than its capital contribution of 20 million yuan and was not returned by the company. Now both parties agree that the dispute in this case is whether the appellee He Bing constitutes withdrawal of all, if the entire list is not withdrawn, the resolution of the shareholders' meeting to remove the list shall be invalid for violating the above-mentioned legal provisions. The evidence available to the appellant is not sufficient to prove that the appellee He Bing has withdrawn all the capital contributions of Ye Chen Company, so his resolution of the shareholders' meeting to remove He Bing is invalid due to violation of the provisions of the above-mentioned company law. In the second instance of the dispute over the confirmation of the validity of the resolution between Yu Hanying, Wu Wenbiao and Guangdong Yuehui Environmental Protection Co., Ltd. ((2020) Yue 19 Min Zhong No. 11525), the court held that in this case, Wu Mou 1 also had the situation of withdrawing all capital contributions. According to the legal principles of consistency of rights and obligations, fairness and integrity, that is, Wu Mou 1 had no right to hold a shareholders' meeting, the resolution disqualified Yu Hanying as a shareholder, so the resolution of the shareholders' meeting made by Guangdong Hui Company on May 25, 2020 was invalid, and the trial court made an error in this handling, which was corrected by this court. The resolution of the 6. shareholders' meeting to impose a fine on a shareholder shall be based on the standard and range of the fine clearly stated in the articles of association of the company. After the shareholders fulfill the obligation of capital contribution, they and the company are equal civil subjects, have independent personality between each other, there is no relationship between management and management, the company's shareholders' meeting in principle has no right to impose any punishment on the shareholders. The provisions of the articles of association on the imposition of fines on shareholders at the shareholders' meeting are a sanction measure preset by all shareholders of the company for violating the articles of association, which is in line with the overall interests of the company, reflects the human characteristics of the limited company, does not violate the prohibitions of the company law, and should be legal and effective. However, when the articles of association give the shareholders' meeting the power to impose fines on shareholders, the standard and range of fines shall be clearly defined. In the case of Nanjing AXA Financial Consulting Co., Ltd. v. Zhu Juan's shareholders' meeting resolution fine dispute (Bulletin of the Supreme People's Court, No. 10 (General No. 192), 2012), the court held that in this case, when AXA revised its articles of association, although it stipulated that the shareholders' meeting had the right to impose a fine on the shareholders in the eight circumstances of the first paragraph of Article 36, however, the standard and range of the fine are not clearly recorded in the articles of association of the company, so that Zhu Wei can not make a prior prediction of the consequences of the violation of the articles of association of the company, so the resolution of the interim shareholders' meeting of AXA Company to impose a fine on Zhu Wei is obviously insufficient legal basis and should be considered invalid. Invalidity of 7. violation of voting recusal Voting rights avoidance system refers to the system in which a shareholder or agent may not exercise voting rights in respect of the shares held by him or her when he or she has a special interest in the resolution discussed at the general meeting of shareholders. The "Company Law" only provides for three types of voting rights avoidance situations. Article 16 stipulates that if a company provides guarantees for shareholders or actual controllers, shareholders controlled by the guaranteed shareholders or actual controllers shall not participate in voting; Article 17 The shareholder delisting rules established are only applicable to two types of shareholders who have completely failed to fulfill their capital contribution obligations or evaded all capital contributions; article 124 stipulates that if the directors of a listed company are related to the enterprise involved in the resolution of the board of directors, they shall not participate in the voting.
2021-12-13
11
2021-12
Abstract: The crime of producing and selling toxic and harmful food is an important crime of food safety. The key to the identification of this crime lies in the subjective and objective determination of "toxic and harmful. The objective level requires that the non-food raw materials must be able to cause harm after human consumption in quality, and must reach a certain degree of impact on human health in quantity. The subjective level requires that the perpetrator be aware of the toxicity. Keywords: toxic and harmful knowingly identified The "Criminal Law Amendment (VIII)" has revised and improved the crime of producing and selling toxic and harmful food, increased the penalty, and strengthened the protection of food safety. However, there are still many uncertainties in how to determine "toxic and harmful" in judicial practice. The place. Based on the actual experience of handling cases, this paper makes a detailed analysis of the criteria of "toxic and harmful" from the perspective of criminal law hermeneutics, with a view to benefiting the application of this crime. Objective Level of 1. -- Definition of Toxic and Harmful The key to the identification of the crime of producing and selling toxic and harmful food is "toxic and harmful". If the mixed non-food raw materials are non-toxic and harmless, then it does not constitute a crime. If the mixed non-food raw materials do not meet the safety standards, then it constitutes the crime of producing and selling food that does not meet the safety standards. In the provisions of the crime of producing and selling toxic and harmful food stipulated in Article 144 of the Criminal Law, there is no clear definition of the toxic and harmful nature of food, so it is necessary to carefully interpret "toxic and harmful". So as to correctly delineate the boundaries between crime and non-crime, this crime and the other crime. According to the provisions of the Food Safety Law, food safety means that food is non-toxic and harmless, meets the due nutritional requirements, and does not cause any acute, subacute or chronic harm to human health. From this article, we can conclude that toxic and harmful means that it does not meet the nutritional requirements and causes any acute, subacute or chronic harm to human health. Some scholars also pointed out that "food safety refers to the situation that will not cause any damage to consumers when used by consumers in accordance with the intended use." Therefore, toxic and harmful should be understood as food that causes harm to human health and does not meet the standards for human consumption or drinking. Does this mean that as long as non-food raw materials contain toxic and harmful ingredients can be identified as a crime? In real life, food contains certain toxic and harmful substances is completely normal. At present, there are about three thousand kinds of food additives, and most of them are toxic and harmful, but the country has not banned the addition of additives to food because of these toxicities, because appropriate additives can make food more delicious and more beautiful., The preservation time is longer. Obviously, we cannot think that as long as there are toxic and harmful ingredients in food, we must be recognized as a crime, and we must also clarify the degree of toxicity and harm required. (I) toxic and harmful judgment data Non-food raw materials themselves are toxic and harmful, and they also bring harm to the human body after eating. For those non-food raw materials that are toxic and harmful and will cause harm to the human body after eating, they should naturally be regarded as toxic and harmful. This is not controversial. Non-food raw materials themselves are toxic and harmful, but they will not cause harm to the human body after eating. Do non-food ingredients that are inherently toxic but do not cause harm to the human body after consumption fall within the scope of this crime? The author believes that although this crime is a crime, it does not mean that it does not require any degree of requirement. In this case, because it will not produce results that harm the society, it does not have social harm, and it does not meet the toxic and harmful standards in the crime of producing and selling toxic and harmful food. 3, non-food raw materials itself non-toxic, harmless, but after eating to bring harm to the human body This situation needs to be discussed on a case-by-case. The first is to eat or drink food caused by their own reasons. There are two kinds of situations, one is that consumers eat or drink too large a dose and lead to poisoning. The second is that for those who have a special constitution, their consumption of food containing certain non-food raw materials has caused damage to health, and ordinary people will not cause harmful results after eating. We believe that the above two cases of non-food raw materials do not meet the toxic and harmful standards. The reasons are as follows: first of all, the health problems of the eaters who do not eat or drink food according to the dose are caused by their personal reasons, not by the behavior of the perpetrator. According to the responsibility doctrine, this harmful result can not be attributed to the perpetrator, so it can not be regarded as a crime. Secondly, everyone's physical condition is different. If the eaters have health problems due to their own physical fitness, we naturally cannot pursue the criminal responsibility of the perpetrator. The second is that the non-food raw materials themselves are not toxic but react after compounding, resulting in the production of toxic and harmful substances. This situation needs to be based on the premise that the perpetrator knows that chemical changes will occur and produce toxic and harmful elements. If the perpetrator does not know that it will react to generate toxic substances, it should be regarded as an accident and should not be regarded as a crime. Contrary to this situation, non-food raw materials are inherently toxic, but when non-food raw materials are mixed into food, chemical changes occur between non-food raw materials and food or in the case of compound addition, making food non-toxic. This situation also requires the perpetrator to know that non-food raw materials will produce chemical changes after the addition of food non-toxic, otherwise it is purely accidental coincidence and lead to non-toxic, but the perpetrator's understanding of the error, still constitute the crime, but in this case may be established is the attempted form of this crime. Defining Standard of (II) Toxic and Harmful Through the above discussion of toxic and harmful judgment data, we think that we should grasp the standard of toxic and harmful identification from the two levels of quality and quantity. Qualitative requirements. The non-food material must be capable of causing harm after human consumption. Here to exclude the consumption of personal reasons for the harm caused by the situation. In addition, this crime is a crime does not require the actual harm results, but requires toxic, harmful to be highly closely related to the harm to human health, for those who are toxic but will not cause any harm can not be identified as this crime. amount of requirements. Poisonous ingredients must reach a certain degree of impact on human health. Food should not contain factors that cause harm to human health, but this does not mean that food cannot contain any harmful ingredients, but that the content of harmful ingredients cannot reach the level that can cause harm to human health. Some non-food raw materials themselves are indeed harmful, but their quantity is not enough to cause damage or threat to human health, so this non-food raw material does not meet the requirements of toxicity and harm, and cannot be used as a prerequisite for conviction. 2. the subjective level-the actor should know that it is toxic and harmful. Is toxic and harmful a knowingly content? Some scholars believe that in determining the subjective aspect of the crime of producing and selling toxic and harmful food, the perpetrator can only be required to have knowledge of the incorporation of non-food raw materials, not knowledge of the toxic and harmful nature. If the producers and sellers are required to know the toxicity, it will undoubtedly put forward extremely high requirements for the subjective cognition of the criminal subject, which will bring great difficulties to the identification of the crime. The nature of raw materials, on the other hand, is the basis of the rationality and cognitive rationality of the behavior of producers and sellers. Some scholars have even pointed out that when judging the subjective aspect of the perpetrator, the perpetrator only needs to have a general understanding of the harmful consequences of his own behavior, and does not require the perpetrator to have a detailed understanding of the chemical properties and toxicity of the added substances. According to the general theory of criminal law, whether directly or indirectly intentionally, its "knowingly" is the understanding of the harmful result. Knowing should contain two levels of content: the factual level and the value level. The so-called factual level is that the behavior has an understanding of the facts of its own behavior, including the understanding of the nature of the behavior, the way of behavior, the object of the behavior, the time and place of the behavior, the result of the behavior, etc. Specific to this crime, on the factual level, the actor realizes that he is mixing toxic and harmful non-food raw materials into food or selling toxic and harmful non-food raw materials. On the value level, the actor realizes that the behavior of mixing or selling toxic and harmful non-food raw materials will harm the society. In fact, at the factual level, it can be subdivided into the knowledge of "non-food raw materials" and the knowledge of "toxic and harmful", and it is based on the knowledge of "toxic and harmful" that can identify the actor's knowledge at the value level, that is, the actor can come to the conclusion that it may cause harm to the health of others when he recognizes the toxicity, however, the mere understanding of "non-food raw materials" cannot be established as a result of the harm. This crime, as a criminal act, does not require the reality of the harmful results, as long as the perpetrator has carried out the constituent elements of the act can be identified as a crime, and the criminal law can be separated from the harmful results of the actor's behavior to evaluate, it is precisely because of the high degree of closeness of the act and the harmful results and early intervention. Only the behavior can reflect and harm the results of the close correlation can be identified as a crime. If it is only recognized that the incorporation of "non-food raw materials" does not reflect the high correlation between behavior and harmful results, only by recognizing that the incorporation of non-food raw materials is "toxic and harmful" can the behavior and results be demonstrated. High degree of tightness. It should be noted here that the fact that the elements of the act do not contain the harmful result does not mean that the perpetrator is unaware of the result of his act and the nature of the result. If the crime of invading a house is a typical behavior offender, as long as the perpetrator implements the act of invading another person's house, it should be considered a crime, without asking whether the reality has caused damage to the right of tranquility of another person's house, but the perpetrator has obviously realized that what he implements is the act of invading another person's house and this act will affect the tranquility of another person's house. If it does not include knowing the result of the harm, the perpetrator should also be considered a crime if he only visits the owner's home. The main reason why some people question whether "toxic and harmful" should be known as the content of this crime is that if the perpetrator is required to have an understanding of the harmfulness of the result, he will often use this as an excuse to defend himself. I did not realize that my actions would cause consequences harmful to society, which caused difficulties in intentional identification. The author believes that it is difficult to identify in judicial practice as a reason to deny that "toxic and harmful" is not the known content of this crime. First of all, there are many difficulties in the identification of criminal law. For example, what is a dangerous state is still a question of wisdom, and practice and theory cannot be confused. Secondly, intentional identification is a process of unity of subjectivity and objectivity. It is necessary to listen to the perpetrator's justification, but also to judge objectively. The perpetrator's one-sided statement should not be considered to be subjectively intentional, but also to grasp his subjective guilt through the objective aspect. Secondly, it has been discussed in the previous article that only knowing that "non-food raw materials" does not reflect people's understanding of the harmful results of their behavior. Only when they have an understanding of "toxic and harmful" can they be considered to have recognized the social harmfulness of their behavior. Finally, only by recognizing the "toxic harmfulness" can it reflect the greater subjective malignancy of human beings. Knowing that "non-food raw materials" and knowing that "toxic and harmful" is actually a layered relationship. Only when the perpetrator has a second knowing, can his subjective malignancy reach the level of conviction. As for the view put forward by some people, only the actor needs to have a general understanding of the harmful consequences of his own behavior, and does not require the actor to have a detailed understanding of the chemical properties and toxicity of the added substances. If the perpetrator has already been aware of the harmful consequences of his actions, how can he not be aware of the "toxic and harmful" nature of the non-food ingredients he is mixed with? Since it is admitted that the perpetrator should be aware of the harmful results, it is necessary to admit that he knows "toxic and harmful".
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Presentation of 1. issues In practice, the developer and the buyer signed the "commercial housing sales contract", in the agreed housing delivery period at the same time, in order to avoid the late delivery of the liability for breach of contract, agreed on a fixed period of extension, the developer does not bear the responsibility for late delivery of breach of contract. Before the implementation of the the People's Republic of China Civil Code (hereinafter referred to as the Civil Code), the Intermediate People's Court of Jinan City and the courts under its jurisdiction mostly cited the relevant provisions of the the People's Republic of China Contract Law (abolished, hereinafter referred to as the Contract Law), and tended to think that the agreement on "late delivery of extended period" was legal and effective. The terms on extended period were the agreement of both parties and did not obviously infringe the interests of the buyer, it also does not violate the mandatory provisions of laws and administrative regulations. Both parties shall perform in accordance with the agreement. The starting time for the developer to bear the liquidated damages for overdue house delivery shall be calculated after the expiration of the grace period. However, the Civil Code has made more stringent provisions on the format clause, and will there be a change in the determination of the validity of the late delivery extension period? New Rules on Form Clauses in the Civil Code of 2. Article 496, paragraphs 1 and 2, of the Civil Code Contract Code, respectively, states: "A format clause is a clause that the parties have prepared in advance for reuse and has not negotiated with the other party at the time of the conclusion of the contract." "Where a contract is concluded by standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to remind the other party to pay attention to the terms that have a significant interest in the other party, such as the exemption or reduction of its responsibilities, and explain the terms in accordance with the requirements of the other party. If the party providing the form clause fails to perform its obligation to prompt or explain, resulting in the other party failing to pay attention to or understand the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract." This provision provides for the format clause and the obligation of the party providing the format clause. Compared with Article 39 of the original Contract Law, the following major amendments have been made: 1. After "taking reasonable measures to remind the other party to pay attention to exemption or reduction of its responsibilities", the content of "clauses with significant interests with the other party" is added. This means that the clauses that exempt or reduce the responsibilities of the party providing standard clauses are not the only clauses that need to be reminded of the other party, and other clauses that have significant interests with the other party also need to be reminded. This obviously expands the scope of drawing the attention of the other party, and all clauses that have a major interest in the other party are within the scope of prompting attention. 2, increase the consequences of not fulfilling the duty of care to remind the other party. Article 39 of the original "Contract Law" does not provide for the legal consequences of not fulfilling the obligation to prompt the other party to pay attention, so it is called "soft obligation". This article supplements this by providing the legal consequences of "if the party providing the standard clause fails to perform its obligation to prompt or explain, resulting in the other party failing to pay attention to or understand the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract. To advocate that "clauses that have a significant interest relationship with the other party" do not become an integral part of the contract is tantamount to declaring that it does not exist and has no effect. Such legal consequences are sufficient to warn the party providing the standard clauses to exercise utmost care and protect the other party's rights and interests., Also protect your own rights and interests. 3. This article also adds the "unreasonably" restriction language, increasing the circumstances of mitigation of liability, in other words, must achieve unreasonable exemption or reduction of its liability, increase the other party's liability, in order to make the format clause invalid. On the other hand, "excluding the main rights of the other party" is revised to "restricting the main rights of the other party", and the qualification of "unreasonable" is added. In this way, the limitation of the other party's rights and the exemption or reduction of its liability, increase the other party's liability side by side, constitute the same exemption, that is, any unreasonable exemption or reduction of its liability, increase the other party's liability, limit the other party's main rights, will lead to the invalidity of the format clause. In addition, the Civil Code has also adjusted the reasons for the invalidity of the format clause, mainly reflected in: the party providing the format clause unreasonably exempts or reduces its liability, increases the liability of the other party, and restricts the other party's main rights. These circumstances are not expected by the parties to the contract when they conclude the contract, are contrary to the purpose of the parties to conclude the contract, seriously damage the legitimate rights and interests of the other party, and obviously violate the basic principles of civil law, such as the principle of fairness. Therefore, they are all legal causes that lead to the invalidity of the standard clause. As long as one of the circumstances occurs, the standard clause is invalid. 3. related cases (I) 2021 Lu Minshen 974 Commercial Housing Sales Contract Dispute Judgment of Shandong Higher People's Court: After review, this court believes that the "Qingdao Commercial Housing presale Contract" signed by the buyer and the seller is legal and valid, and both parties should perform their contractual obligations. The "Qingdao Commercial Housing presale Contract" clearly stipulates that the delivery date is before March 31, 2019. The supplementary terms of the contract stipulate that the seller fails to deliver the house to the buyer within the time limit stipulated in this contract due to its own reasons, the buyer shall give the seller A 30-day extension period, during which the contract continues to be performed, and the seller does not need to bear the liability for breach of contract to the buyer. The buyer shall exercise prudent care over the contents of the supplementary clause, and the buyer, as a person with full civil capacity, shall be aware of the legal consequences of its signature on the contract, and the buyer shall not support the claim that the clause is a standard clause and that the seller has not fulfilled its obligation of clear notification and presentation. (II) 2021 Lu 01 Min Zhong 6181 Commercial Housing presale Contract Dispute The judgment of Jinan Intermediate People's Court: The commercial housing sales contract and supplementary agreement signed by the original and the defendant are the true intentions of the parties, and do not violate the mandatory provisions of laws and regulations, and are legal and effective. Both parties should fully perform the contract. In this case, the first item of Article 3, paragraph 8, of Annex 5 to the contract signed by the plaintiff and the defendant stipulated a grace period of 60 days for the seller's specific delivery time. This clause is an agreement between the parties, which does not obviously infringe on the interests of the buyer, nor does it violate the mandatory provisions of laws and administrative regulations, and both parties shall perform in accordance with the agreement. Therefore, the starting time for the seller to bear the liquidated damages for overdue delivery shall be calculated after the expiration of the 60-day grace period. (III) 2021 Lu 0102 Minchu 1295 Commercial Housing presale Contract Dispute The People's Court of Lixia District of Jinan City ruled: The "Jinan City Commercial Housing Sales Contract", "Supplementary Agreement", and "Compensation Confirmation Form" signed by the buyer and the seller are the true intentions of both parties and do not violate the effectiveness of laws and administrative regulations. The mandatory provisions do not violate public order and good customs, and are legal and effective. As a person with full capacity for civil conduct, the buyer is punishing his own rights, and he has not submitted evidence to prove that the seller is in a situation of coercion or taking advantage of the danger of others, so the buyer requires the seller to pay another 90-day penalty, which has no factual and legal basis, and this court does not support it. 4. Lawyer's View The author is inclined to believe that, on the premise that the developer fulfills the obligation to prompt or explain the grace period, the "late delivery extension period" should be considered valid for the following reasons: First of all, before the entry into force of the Civil Code, the Contract Law and its related judicial interpretations contained relevant provisions on standard clauses. Combined with the search of cases before the entry into force of the Civil Code, the determination of "standard clauses" in judicial practice was still With a cautious and conservative attitude, it is determined that the agreement of "late delivery extension period" is legal and valid. The current Civil Code retains some of the provisions of the original Contract Law and related judicial interpretations on "format clauses", and the cases before the entry into force of the Civil Code have certain reference value. For example, in (2021) Lu 01 min zong No. 6177 civil judgment, Jinan intermediate people's court, following the principle of the same case and the same judgment, directly quoted the contents of the judgment of the same court: "regarding the liquidated damages for overdue house delivery, the effect of article 3, paragraph 8, of the supplementary agreement, the civil judgments (2020) Lu 01 min zong No. 9658 and No. 9661 made by Jinan intermediate people's court are as follows: the Supplementary Agreement signed by both parties stipulates a grace period of 60 days for the seller's specific delivery time. This clause is an agreement between the parties, which does not obviously infringe on the interests of the buyer, nor does it violate the mandatory provisions of laws and administrative regulations, and both parties shall perform in accordance with the agreement. Therefore, the starting time for the seller to bear the liquidated damages for overdue delivery shall be calculated after the expiration of the 60-day grace period." Secondly, on the one hand, the Civil Code makes stricter provisions on the standard clauses, but on the other hand, the provisions also add expressions such as "significant interests" and "unreasonable exemption or mitigation". There is no relevant judicial interpretation to clarify how to define "significant" and "unreasonable", which belongs to the discretion of judges in the process of hearing cases. The author believes that the "significant", "unreasonable" and other qualifiers, to a certain extent, can avoid the risk of "exemption is the format clause. Although the "Supplementary Agreement on Commercial Housing Sales Contract" will exempt the developer from the responsibility for breach of contract for overdue delivery of the house to a certain extent, it should not constitute a situation of "unreasonably exempting or reducing its responsibility and increasing the responsibility of the other party. Finally, as far as both parties are concerned, the main contractual obligation of the buyer is to pay the purchase price on time, and the main contractual right is to accept the house according to the contract; as a developer, its main contractual obligation is to deliver the commercial housing that meets the conditions stipulated by laws and regulations according to the contract. The agreement on the leniency period does not invalidate the contract or clause in Chapter 6, Section 3 and Article 506 of Title I of the Civil Code, nor does it increase the buyer's contractual obligations. It only conditionally exempts the developer from part of the responsibility as the seller, rather than completely or indefinitely exempting the developer from the responsibility of handing over the house. At the same time, the clause still stipulates that if the developer fails to hand over the house within the leniency period, the buyer may still be held liable for breach of contract in accordance with the contract and does not exclude the buyer's contractual rights. Therefore, the agreement of the late delivery grace period should not be recognized as the category of the buyer's "main rights", let alone the buyer's "main rights are restricted or excluded". To sum up, the terms of the extension period are the agreement of both parties, which does not obviously infringe on the interests of the buyers. The agreement of the extension period only delays the time for the developer to assume the responsibility of overdue delivery or exempts the developer from the responsibility of overdue delivery. Part of the responsibility, it does not fall under any of the circumstances of "unreasonably exempting or reducing its liability, increasing the liability of the other party, limiting or excluding the main rights of the other party" as stipulated in article 496 of the Civil Code.
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[brief case]] Zhu Moujia and other three people are the first legal heirs of the deceased in a traffic accident, the insured and driver of an accident vehicle, and the Shanghai branch of a property insurance company is the insurer of the accident vehicle. The traffic police department issued the ''Road Traffic Accident Recognition Letter'', which determined that a vehicle with a certain driving braking performance that did not meet the safety technical conditions and had a safety hazard encountered a pedestrian passing the crosswalk and did not stop to give way; Hou Mouyi did not follow the traffic signal lights. Passing (running a red light), both parties in the accident violated the Road Traffic Safety Law. According to the cause of the accident, it, it, it is determined that both parties bear the equal responsibility for the accident. The plaintiff Zhu Moujia and three others sued to the court, demanding that the Shanghai branch of a certain property insurance company bear the corresponding compensation liability. During the trial, the parties had no objection to the accident and the determination of the responsibility for the accident. The Shanghai branch of a property insurance company argued that it had already delivered the insurance clause to a certain company, and had given this clause a bold and black prompt, and informed the specific content of the exemption clause of a commercial three-way insurance by telephone. According to the aforementioned exemption clause, this case of traffic accident belongs to the situation of "the vehicle is not inspected in accordance with the regulations or the inspection is unqualified". The so-called unqualified inspection includes the unqualified annual inspection of the vehicle and the unqualified inspection after the accident. Therefore, the insurer refuses to bear the commercial insurance limit. Liability. Yu argued that although he had received the insurance clause, the accident vehicle had been inspected annually in accordance with the regulations and passed the annual inspection. There was no problem with the braking of the vehicle before the accident, which was not a case of exemption from insurance liability. He was willing to bear the compensation liability beyond the insurance limit. focus of controversy] Whether this traffic accident is an applicable situation of the commercial three-party insurance exemption clause. The court considered] After hearing, the court held that according to the legal nature of the exemption clause, following the meaning and spirit of Article 15 of the regulations on the implementation of the road traffic safety law, and comprehensively considering other factors such as the legitimate expectation of the insured, the degree of fault of the driver, and the general cognition of the public, the accident in this case does not belong to the case of exemption from insurance liability. The court ruled that the Shanghai branch of a property insurance company should pay the plaintiff 299522.8 yuan for compulsory insurance and commercial insurance. For the insurer's refusal to claim based on the exemption clause of the insurance contract, the trial idea of "from form to reality" and "combination of form and reality" should generally be followed. First of all, in form, it is necessary to examine whether the insurer has fulfilled the obligation of service, prompt and notification of the insurance terms. In this case, the Shanghai branch of a property insurance company has served the insurance terms to the policyholder, in which the exemption clause is also bolded and blackened, and the terms are read out to the policyholder in the form of telephone recording. Therefore, in terms of form, the insurer has fulfilled the corresponding legal obligations. Secondly, in terms of content, the meaning of the contract needs to be interpreted in a manner consistent with the nature of the exemption clause and the legislative intent. According to the insurance clause involved in the case: "When the insured motor vehicle driving license or number plate is canceled in the event of an insurance accident, or fails to inspect or fail to pass the inspection as required" is one of the items exempted from insurance liability. First, as far as the nature of the insurance clause is concerned, it is a form clause provided by the insurer to exempt the insurer from its own obligations, and the understanding of this clause is disputed between the insurer and the policyholder. According to the provisions of the the People's Republic of China Civil Code: if there is a dispute over the understanding of the format clause, it shall be interpreted in accordance with the usual understanding. If there are two or more interpretations of the form clause, an interpretation that is not conducive to the party providing the form clause shall be made. The exemption clause should be interpreted against the insurer. Secondly, in terms of legislative intent, Article 15 of the regulations on the implementation of the Road Traffic Safety Law clearly stipulates that motor vehicle safety technical inspection shall be carried out by motor vehicle safety technical inspection institutions. Based on the meaning of this administrative regulation, the exemption clause refers to "failure to inspect or fail to pass the inspection in accordance with the regulations", which is generally understood to mean that the vehicle is not inspected regularly and in accordance with the regulations to the motor vehicle safety technical inspection institution or the vehicle is inspected by the motor vehicle safety technical inspection institution. The insurer should not make an expansive interpretation of this exemption from its liability after the accident. Third, the insurer should make a substantive and specific detailed description of the content of the insurance exemption clause. Although the insurer orally read out the exemption clause to the policyholder, it did not clearly explain to the policyholder the specific content of the category, subject, method, and time limit of the "inspection according to regulations" referred to in the exemption clause. The insurer shall bear the adverse legal consequences arising from the unclear notification. Finally, in the result, the application of the exemption clause should be consistent with the legitimate expectations of the policyholder and the degree of fault of the actor. In this case, Yu has submitted the accident vehicle for inspection according to regulations and schedule, and passed the inspection. When the accident occurred, it also took the necessary braking measures to actively prevent the occurrence of the accident involved. Although it is recorded in the "Road Traffic Accident Identification Letter" that the braking performance of the accident vehicle does not meet the safety technical conditions and has potential safety hazards, the accident occurred suddenly. It is difficult for a certain vehicle to make accurate self-inspection, evaluation and complete elimination of potential safety hazards in advance. The psychological expectation of taking out commercial triple insurance is also to replace or reduce its own liability for compensation in the event of a traffic accident. Therefore, the exclusion of the aforementioned insurance exemption clause is more in line with the general perception and legitimate expectations of the public. Lawyer Advice] In practice, insurance companies often encounter the need to deal with the customer's vehicle out of danger due to traffic accidents. When making an insurance claim, if it is found that the claim may be "strange" and refused to settle the claim, it is difficult to be identified only on the basis of the "road traffic accident identification" issued by the traffic police department in the lawsuit. Although the ''Road Traffic Accident Recognition Letter'' determines that the accident vehicle does not meet the safety technical conditions and has safety hazards, due to the lack of other evidence to strengthen it, the inspection conclusion after such an accident is usually determined in judicial practice as not belonging to the insurance exemption clause. The situation of "the vehicle is not inspected in accordance with the regulations or the inspection is unqualified. Therefore, in the process of informing the insurer of the relevant exemption clause, the insurance company needs to inform the insurer in detail and comprehensively, and should make a substantive and specific detailed explanation to the policyholder on the content of the exemption clause, and fix and retain the relevant evidence to prevent claims and litigation risks.
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Foreword Company shares are the shares held by shareholders in the company after the establishment of the company, which play an important role in proving the identity of shareholders. The dispute over requesting the company to acquire shares is a common dispute between the company and its shareholders (especially small and medium-sized shareholders) in practice. It occurs when the shareholders disapprove of the specific resolution of the shareholders' meeting. The purpose is to make the company evaluate the value of the shares held by the dissenting shareholders and purchase them at a fair price. Through this lawsuit, the dissenting shareholders are guaranteed to withdraw from the company in a reasonable and fair way of share compensation, while the withdrawal of dissenting shareholders also improves the efficiency of the company's decision-making and ensures the effectiveness of management. This article will analyze the dispute over the acquisition of shares by the requesting company from the aspects of legal provisions, litigation overview, dispute issues and decision rules for reference. Relevant provisions (I) related laws 1. the People's Republic of China Civil Procedure Law Article 26 Litigation arising from disputes over the establishment of a company, confirmation of shareholder qualifications, distribution of profits, dissolution, etc., shall be under the jurisdiction of the people's court of the place where the company is domiciled. 2. Company Law of the People's Republic of China Article 74 Under any of the following circumstances, a shareholder who votes against the resolution of the shareholders' meeting may request the company to purchase its equity at a reasonable price: (I) the company has not distributed profits to its shareholders for five consecutive years, and the company has made profits for the five consecutive years and meets the conditions for distribution of profits as stipulated in this Law; Merger, division or transfer of main property of the (II) company; (III) the term of business as stipulated in the articles of association expires or other reasons for dissolution as stipulated in the articles of association arise, the shareholders' meeting passes a resolution to amend the articles of association so that the company continues to exist. Within 60 days from the date of adoption of the resolution of the shareholders' meeting, if the shareholders and the company cannot reach an equity purchase agreement, the shareholders may bring a lawsuit to the people's court within 90 days from the date of adoption of the resolution of the shareholders' meeting. Article 142 A company may not purchase its own shares. However, any of the following circumstances shall be excluded: (I) reduction of the company's registered capital; (II) merger with other companies holding shares in the Company; (III) use of shares for employee stock ownership plans or equity incentives; (IV) shareholders request the company to purchase its shares due to their objections to the merger or division resolution made by the general meeting of shareholders; (V) the use of shares for the conversion of convertible corporate bonds issued by listed companies; (VI) listed companies is necessary to safeguard the value of the company and shareholders' rights and interests. Where a company purchases its own shares under the circumstances specified in items (I) and (II) of the preceding paragraph, it shall be subject to a resolution of the general meeting of shareholders; where a company purchases its own shares under the circumstances specified in items (III), (V) and (VI) of the preceding paragraph, it may, in accordance with the provisions of the articles of association or the authorization of the general meeting of shareholders, be resolved by a meeting of the board of directors attended by more than 2/3 directors. After the company acquires the company's shares in accordance with the provisions of the first paragraph of this article, it shall be canceled within ten days from the date of acquisition if it falls under the circumstances of item (I); if it falls under the circumstances of items (II) and (IV), it shall be transferred or canceled within six months; if it falls under the circumstances of items (III), (V) and (VI), the total number of shares of the company held by the company shall not exceed 10% of the total issued shares of the company, and shall be transferred or canceled within three years. Where a listed company purchases its own shares, it shall perform its information disclosure obligations in accordance with the provisions of the the People's Republic of China Securities Law. Where a listed company acquires its own shares due to the circumstances specified in Items (III), (V) and (VI) of the first paragraph of this Article, it shall proceed through public centralized trading. (II) relevant judicial interpretation 1. Circular of the Supreme People's Court of China, on Printing and Issuing the Revised Provisions on the Cause of Action in Civil Cases 21. Disputes related to the company 268, request the company to acquire shares dispute. 2. Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law Article 3 The domicile of a citizen refers to the place where the citizen's household registration is located, and the domicile of a legal person or other organization refers to the place where the main office of the legal person or other organization is located. If the location of the principal office of a legal person or other organization cannot be determined, the place of registration or registration of the legal person or other organization shall be the place of domicile. Article 22 Jurisdiction shall be determined in accordance with the provisions of Article 26 of the Civil Procedure Law for lawsuits arising from disputes over records in the register of shareholders, requests for changes in company registration, shareholders' right to know, company resolutions, company mergers, company division, company capital reduction, company capital increase, etc. 3. (I) of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the the People's Republic of China Company Law Article 3 When the plaintiff brings a lawsuit to the people's court on the grounds stipulated in Article 22, paragraph 2, and Article 74, paragraph 2 of the Company Law, if the time limit stipulated in the Company Law is exceeded, the people's court shall not accept it. Provisions issued by regional courts in (III) 1. Opinions of the Higher People's Court of Shandong Province on Several Issues concerning the Trial of Company Dispute Cases (for Trial Implementation) 81. In the case of item (I) of paragraph 1 of Article 75 of the Company Law, if the company has not held a shareholders' meeting for five consecutive years to make a resolution on the distribution of profits, shareholders holding less than one-tenth of the voting rights of the company may request the company to purchase its shares at a reasonable price. 82. If a shareholder files a lawsuit within the time limit specified in the second paragraph of Article 75 of the Company Law, the people's court shall not accept it. 83. If the shareholders require the company to acquire the equity in accordance with the provisions of Article 75 of the Company Law, but there is no consensus on the purchase price of the equity, the people's court shall support the shareholders' claim to determine the purchase price of the equity by way of evaluation. 2. (II) of Opinions of Shanghai Higher People's Court on Several Issues Concerning the Trial of Litigation Cases Involving Companies Issues related to the handling of disputes over shareholders' rights and interests in 3. 3. If the shareholders' meeting of a limited liability company forms a resolution on the merger, division or amendment of the articles of association of the company, and it is difficult to transfer the shares held by the shareholders after the resolution, the shareholders who vote against the resolution at the shareholders' meeting shall have the right to request the company to acquire its shares. If the company has been profitable for many years and meets the conditions for the distribution of shareholders' surplus as stipulated in the Company Law, but the company does not distribute profits, the shareholders who meet the shares of the company as stipulated in the Company Law shall have the right to request the company to convene a shareholders' meeting to make a resolution; shareholders who vote against the resolution at the shareholders' meeting shall have the right to request the company to acquire their shares. 3. Guiding Opinions of the Higher People's Court of Jiangxi Province on Several Issues concerning the Trial of Company Dispute Cases (V) limited liability company share repurchase dispute 66. Under the circumstances of Item (I) of the first paragraph of Article 75 of the Company Law, if the company has not convened a shareholders' meeting for five consecutive years to make a resolution on the distribution of profits, shareholders holding less than one-tenth of the company's voting rights may request The company acquires its equity at a reasonable price. 67. If a shareholder files a lawsuit within the time limit specified in the second paragraph of Article 75 of the Company Law, the people's court shall not accept it. 68. If the shareholders require the company to acquire the equity in accordance with the provisions of Article 75 of the Company Law, but there is no consensus on the purchase price of the equity, the people's court shall support the shareholders' claim to determine the purchase price of the equity by way of evaluation. Other relevant provisions of the (IV) China Securities Regulatory Commission, Guidelines on the Articles of Association of Listed Companies Article 23 A company may purchase its shares in accordance with the provisions of laws, administrative regulations, departmental rules and these Articles of Association under the following circumstances: (I) reduction of the company's registered capital; (II) merger with other companies holding shares in the Company; (III) use of shares for employee stock ownership plans or equity incentives; (IV) shareholders request the company to purchase its shares due to their objections to the merger or division resolution made by the general meeting of shareholders; (V) the use of shares for the conversion of convertible corporate bonds issued by listed companies; (VI) listed companies are necessary to safeguard the value of the company and shareholders' rights and interests. Except in the above circumstances, the company shall not purchase the shares of the company. A company issuing preferred shares shall also specify in its articles of association that the option to repurchase the preferred shares shall be exercised by the issuer or shareholders, and the conditions, price and proportion of the repurchase shall be specified. If the issuer requires the repurchase of preferred shares in accordance with the provisions of the articles of association, it must pay the dividends owed in full, except for the issuance of preferred shares by commercial banks to supplement capital. Summary of Litigation Plaintiff: Shareholder Defendant: Company Jurisdiction: by the people's court of the company's domicile Litigation request: 1. The defendant was ordered to purchase the defendant's shares held by the plaintiff at a reasonable price (subject to the assessed price, tentatively xx yuan). 2, the case acceptance fee, preservation fee and other litigation costs are borne by the defendant. Dispute Issues and Judgment Rules (I) Dispute Question 1: How is the price of the acquisition shares determined? Summary of the problem: According to Article 74 of the Company Law, shareholders should adopt a "reasonable price" when requesting a company to acquire shares, and according to the opposition interpretation of this provision, if shareholders do not adopt a "reasonable price" when requesting a company to acquire shares, the company has the right to refuse the acquisition. However, Article 74 of the Company Law does not further specify how to determine the "reasonable price", from the interpretation of the meaning of this provision, the "reasonable price" should be the price agreed by both parties, but not necessarily the price expressly agreed in the articles of association. For the company and its shareholders, the acquisition price can be called "reasonable" only if it does not harm the legitimate interests of the company or the shareholders, so it is necessary to make a certain balance between the interests of the company and the shareholders. Case: Zhao Zaiyue and Hailisheng Group Co., Ltd. requested the company to retry the civil judgment on the dispute over the acquisition of shares (case No.:(2017) Zhejiang Minzai No. 89; Trial court: Zhejiang Higher People's Court) First of all, Zhao Zaiyue advocates that determining the equity purchase price through third-party financial audit and asset evaluation is not the only way to judge the "reasonable price. If it is sufficient to determine a fair market price based on the circumstances of the case, there is no need to determine the purchase price of the equity by entrusting a third party to conduct an appraisal. Secondly, the reasonable price for the company to acquire the shares of the dissenting shareholders shall refer to the equity value calculated on the basis of the net assets of the company. Under the standard of the company's financial accounting system, the owner's equity in the balance sheet of the enterprise can reflect the real net assets of the company, even if the articles of association of the company do not agree on the purchase price of equity, there is nothing wrong with calculating the purchase price of equity on the basis of the owner's equity at the end of the year. Thirdly, at present, 21 natural person shareholders and 191 members of the shareholding association have accepted the price to transfer their shares, which to a certain extent confirms the true share price of the acquired shares in market transactions. (II) Disputed Question 2: What is the main reference to the transfer of main property under Article 74, paragraph 2, of the Company Law? Problem overview: What is the main property, the company law does not make clear. This leads to the need for judges to judge and identify the "main property" at their discretion in the process of handling specific cases. The discretion of the judge has led to the ambiguity of the criteria for the identification of the main property in judicial practice, and does the transfer of the main property simply refer to the sale? Is it a transfer to set up a company with another person in the form of in-kind capital contribution? It can be seen that Article 74 of the Company Law covers a narrow scope and cannot cover the problems that arise in the real process, such as asset restructuring, asset mortgage and other matters, in which case the interests of small and medium-sized shareholders are harmed, and there are doubts as to whether the provisions on share repurchase apply. In current practice, the court adopts two situations to determine the "main property": one is based on the "quantity" of the transferred property, and the other is based on the "quality" of the transferred property. Case: Zhongshan jielong kitchenware co., ltd. and Peng antao's request for the company to acquire shares (case no:(2016) yue 20 min zong no 4064; Trial Court: Zhongshan Intermediate People's Court of Guangdong Province) The court of second instance held that, first of all, the issue of whether the content of the resolution of the meeting belonged to the "transfer of major property" of Jielong Company. China's company law does not make a clear legal definition of the scope of the "transfer of the main property" of a limited liability company, the Court believes that whether the property transferred by the company is the main property, depending on whether the property transferred by the company affects the normal operation and profitability of the company, resulting in fundamental changes in the company. The business scope of Jielong Company is: production, processing, and sales of kitchenware and sanitary ware, and the content of the meeting resolution shows that Jielong Company "sold the equipment involved in the case to Zhang Hongmei at a price of 170518.46 yuan" and transferred bending machines, Shears, punches, argon arc welding machines, air compressors, wire drawing machines and other main production and operation equipment, not the products in its business scope, the transfer also did not involve the upgrading of the company's production equipment; and, in the second instance, Jielong confirmed that after the equipment involved was sold to Zhang Hongmei in May 2015, Jielong had ceased normal operations. Obviously, the property transferred by Jielong Company has affected the normal operation and profitability of the company, resulting in fundamental changes in the company, which has constituted the "transfer of main property" of the company in Article 75 of the Company Law of China. comment and analysis In practice, the determination of "reasonable price" is generally determined by reference to the fair market price of the acquired shares; when there is no fair market price for the acquired shares, it should be determined by reference to the fair market price of the shares of similar companies; when there is no fair market price for the shares of similar companies, it can be determined by reference to the company's establishment, operating conditions, the market value of the company's realizable assets, the market value of the company's net assets and other factors; in addition, in the absence of relevant factors to refer to, you can apply to an independent third-party audit institution for audit confirmation or apply to the court for judicial confirmation to determine. In addition, for the determination of "transfer of main property", it is more reasonable to take the "quality" of the transferred property as the criterion, that is, a comprehensive examination should be made of the extent to which the assets involved affect the operation, survival and interests of the company and shareholders.
2021-12-11
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2021-12
Viewpoint | A Brief Analysis of the Application of the Right of Residence in Social Life
Since the implementation of the Civil Code this year, the right of residence has been more and more applied to social life. Compared with other systems, the right of residence has strong personal attributes, and the addition of the right of residence system also provides more legal support for people to make rational use of other people's real estate. 1. the Legal Evolution of China's Right of Residence System In 2001, the Supreme People's Court on the application.<中华人民共和国婚姻法>Article 27 of the (I) for the Interpretation of Certain Issues stipulates that "in the event of divorce, one party uses the housing in his personal property to help the person in difficulty, which can be the right of residence or the ownership of the house", and the right of residence was proposed for the first time. In order to solve the housing problem of the party suffering in life; in 2002, the housing right system appeared for the first time in the the People's Republic of China Property Law (Draft for Soliciting Opinions), however, the content of the right of residence was deleted in the subsequent draft review. The Civil Code of 2018 (Exposure Draft) set up the right of residence system, and the Civil Code, which came into effect on January 1, 2021, formally established the right of residence in the form of a code, so that the right of residence system was officially implemented in China. Application Scenarios of 2. Right of Residence After the implementation of the Civil Code, the first residence registration dispute in each province was reported. In social life, the right of residence is increasingly favored by the masses, mainly applicable: 1. In the event of divorce, one party should not only obtain the property right of the house, but also consider giving the other party residence security, so that the right of residence can be established on the house. However, considering that if the right of residence is established as a permanent right of residence, it will inevitably hinder the rights and interests of the owner of the house in possession, use, income and disposition of the house, it is suggested that the actual situation of both parties should be fully considered when establishing the right of residence, a limited term of the right of residence should be agreed, and the agreed conditions for the elimination of the right of residence should be increased, such as the elimination of the right of the right of residence after the other party's remarriage and the child. 2. For the remarried elderly, the establishment of the right of residence can provide protection for the remarried spouse's residence in the real estate, and will not bring about disputes over the ownership of the house, which not only avoids the anxiety of the remarried spouse living without a house, but also realizes the harmony between the remarried spouse and the children. 3. For the elderly without children, by establishing the right of residence, on the one hand, they can ensure their own right of residence, on the other hand, they can obtain certain financial security after the transfer of real estate. The applicable scenarios of the right of residence are diverse and limited to space and are not listed here. The flexibility, exclusiveness and publicity of the right of residence will bring new changes to the life of the masses. The Establishment of 3. Residence Right in Social Life Although the Civil Code provides for the establishment of the right of residence by contract and will, in practice, the right of residence established in the form of legal instruments in force also abounds. The Civil Code provides that the parties to the establishment of a right of residence shall conclude a contract of right of residence in writing. The right of residence is established free of charge and may not be transferred or inherited. The residence with the right of residence shall not be rented out. If the right of residence is established, it shall apply to the registration authority for registration of the right of residence; if the right of residence is extinguished, the cancellation of registration shall be carried out in a timely manner. 1, the establishment of the right of residence by contract. People can establish the right of residence through negotiation in social life. The specific performance is as follows: after the housing property right party determines the ownership of the residence right, it signs the residence right contract with the residence right holder, submits the materials according to the requirements of the real estate registration center, and waits for the examination and approval to issue the certificate. 2, the establishment of the right of residence by will. The Civil Code clearly stipulates that the right of residence can be established by will. However, the narrow sense of testamentary succession only includes legal heirs, and the "Shanghai Real Estate Registration Several Provisions", Jinan City, "on the development of residence registration work notice (trial)" all refer to "the relevant information of the bequest", therefore, the will here should be understood in a broad sense, that is, should include bequests. 3. Establishment of the right of residence by legal instrument in force In practice, the effective legal documents made by the people's courts and arbitration institutions are mainly mediation documents involving the content of the right of residence or the two parties have reached an agreement on the right of residence, and the judgment confirmed by the people's court after one party refuses to perform. The effective legal documents are enforceable. Therefore, it is possible to apply to the real estate registration center for the right of residence registration in the form of effective legal documents. The Significance of the Establishment of 4. Residence Right The establishment of the right of residence fully combines ethics and law, protects the living rights and interests of vulnerable groups, makes the weak have a place to live, and plays an important role in adjusting marriage and family relations and balancing the interests of all parties. The residence right system not only satisfies the subject will of both parties, but also gives full play to the use value of the house, providing a new scheme for effective property distribution. Tips The application for the establishment of the right of residence in Jinan shall be submitted: 1. to set up residence rights on other people's real estate, they can submit an application to the nearby district and county real estate registration centers, or they can apply online through Shandong government service network, love Shandong quancheng mobile phone app, etc; Materials to be submitted for the first registration of 2. residence: 1. If the right of residence is established by contract, it shall be jointly applied by both parties to the contract and shall submit: application for real estate registration (automatically generated by the system), residence contract (with model window), real estate ownership certificate and applicant's identity certificate; 2. If the right of residence is established by will, the parties shall apply unilaterally: it can be handled together with the registration of the transfer of real estate, and the notarized information and identification information such as the notarized certificate of inheritance right and the notarized certificate of acceptance of bequest; 3. If the right of residence is established by the effective legal documents of the people's court and the arbitration institution, the parties shall apply unilaterally and submit: the application for real estate registration (automatically generated by the system), the legal documents made by the arbitration institution of the people's court, and the applicant's identity certification materials; After the 3. residence right is examined and registered, an electronic license will be issued. If you need a paper certificate, you can get it at the window of the nearest real estate registration hall or mail it by the real estate registration center; 4. residence registration is temporarily free of charge.</中华人民共和国婚姻法>
2021-12-10
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
