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Foreword In the past year since the implementation of the "three red lines" policy, the underlying logic of the real estate industry has undergone fundamental changes. Affected by the increase in control rules, coupled with the impact of the epidemic, the narrowing of loan policy and other reasons, some real estate enterprises in the face of financial pressure, commercial housing may be delayed delivery and other conditions, will take a variety of coping strategies, including "housing debt" way to finance or pay off the project and other debts. By studying the relevant judgments of "house-to-house debt" in recent years, the author found that the court has no uniform rules for determining the legal nature and validity of the "house-to-house debt" agreement, and the appeal rate of cases is high and there are often subversive judgments between different trial-level courts. Therefore, real estate companies need to further clarify its legal effect when signing the "house-to-debt" agreement, in order to better play the role of the "house-to-debt" agreement as a debt alternative performance plan or financing method, and help real estate companies solve the root cause. problem. problem focus The "house-to-house" agreement belongs to the category of debt-to-property, debt-to-property is an agreement between the parties on the debt and debt relationship that has been or will be established, when the agreed conditions are achieved or the agreed period expires, the creditor receives other kinds of payment to replace the original payment, and then the original debt and debt relationship is eliminated. This paper will explore the legal effect of the "house-to-house debt" agreement signed between the housing enterprise and other creditors such as the buyer or construction unit in different circumstances through case and legal analysis. Case Study A house-to-house debt-to-debt agreement signed after the expiration of the (I)'s debt performance period. 1. Case No.:(2019) Yuemin Zhong No. 2730 Case introduction: Guo Shengcui once bought room 3-Cx3 in Tao X residential area developed by Yihai Company at the price of 4.7 million yuan. For some reason, both parties reached a "check-out agreement" through negotiation. Both parties agreed to terminate the "commercial housing sales contract". Yihai Company returned Guo Shengcui's purchase price of 4.7 million yuan and compensated Guo Shengcui for the loss of 500000 yuan. Subsequently, both parties signed a loan contract, and the above-mentioned check-out payment of 5.2 million yuan was converted into a loan. Guo Shengcui lent RMB 1.8 million yuan to Yihai Company, with a total loan amount of RMB 7 million yuan for a period of one year until July 4, 2013. On October 1, 2013 after the expiration of the performance period, Guo Shengcui and Yihai Company signed two "Guangdong Province Commercial Housing Sales Contracts", agreeing that Guo Shengcui would purchase houses 5-Ax7 and 5-Bx7 in Tao X Community of Yihai Company for 3 million yuan and 4 million yuan respectively. Yihai Company should deliver the above two commercial houses to Guo Shengcui for use before December 31, 2014, and went through the real estate presale registration with the government department on May 15, 2014, however, Yihai Company has never been able to complete the delivery of the house, so Guo Shengcui filed a lawsuit with the court to confirm that the two "Guangdong Province Commercial Housing Sales Contracts" signed with Yihai Company were legal and valid, and ordered Yihai Company to continue to perform the commercial housing sales contract. The court held that there was a loan contract relationship between the plaintiff Guo Shengcui and Yihai Company. After the expiration of the loan period, the "Commercial Housing Sales Contract" was signed through negotiation, and the original loan principal of 7 million yuan was paid off as the purchase price of the commercial housing. After the two sides to the real estate management department for the presale registration procedures. With reference to the trial guidelines of the Supreme People's Court guiding case No. 72, the parties in this case transformed the loan contract relationship into a commercial housing sales contract relationship, and converted the principal and interest of the loan into the paid purchase price. The basic conditions of the commercial housing, the total price of the commercial housing, unit price, payment method and time, delivery conditions and date, etc. stipulated in the signed "Commercial Housing Sales Contract" have the necessary terms of the commercial housing sales contract. The "Commercial Housing Sales Contract" is the true intention of both parties. The content does not violate the mandatory provisions of laws and administrative regulations and should be deemed legal and effective. Therefore, the basic legal relationship between the parties in this case is the contract relationship for the sale of commercial housing. Yihai Company claims that the basic legal relationship in this case is the loan contract relationship, which is inconsistent with the facts. And the "loan contract" and "commercial housing sales contract" on the two sets of real estate mortgage guarantee, does not conform to the "the People's Republic of China Guarantee Law" on the "liquid contract prohibition" situation. Therefore, Yihai's above claims lack legal basis. The basic legal relationship between the plaintiff Guo Shengcui and Yihai Company is the relationship between the sale and purchase of commercial housing, which is based on sufficient evidence and is not improper. The Court supports the continued performance of the contract for the sale and purchase of commercial housing. 2. Case No.:(2021) Lu 02 Min Zhong No. 3021 The court held that this case involved three debt-for-property agreements reached after the expiration of the performance period, namely, the "Project Payment Agreement" signed between Boyang Real Estate Company and CCCC No. 1 Aviation Bureau No. 2 Company, the "Agreement" signed between CCCC No. 1 Aviation Bureau No. 2 Company Jian'an Branch and Zhonglian Concrete Company, and the "Housing Payment Agreement" signed between Zhonglian Concrete Company and Jiao Mingzhi. The three debt-for-property agreements were agreed by the parties, and the meaning was true. The content of the agreement did not violate the mandatory provisions of laws and administrative regulations, and was established and valid in accordance with the law. An agreement reached by the parties after the expiration of the debt settlement period may constitute a change of debt, I .e. the creation of a new debt and the elimination of the old debt, or it may be a new debt settlement, I .e. the creation of a new debt, which coexists with the old debt. Based on the concept of protecting claims, the change of debt generally requires the parties' clear agreement to eliminate the old debt, otherwise, the nature of the debt settlement agreement reached by the parties after the expiration of the debt settlement period should generally be the new debt settlement. In other words, after the expiration of the debt settlement period, the creditor and the debtor signed a debt-to-debt agreement, if not agreed to eliminate the original money payment debt, should be found to be the parties to add a separate way of performance of the debt, rather than the original money payment of the debt. In the new debt settlement, the new debt as a method of performance of the old debt, the creditor in principle should first request the performance of the new debt. If the debtor fails to perform the new debt, the creditor may either continue to perform and default on the basis of the new debt claim, or resume the performance of the old debt. In this case, although Boyang Real Estate Company signed the "Paris No.1 Subscription Agreement" with Jiao Mingzhi on the house involved in the case and delivered the house involved to Jiao Mingzhi, the law of debt repayment in property was taken as the promise contract. "Delivery of property" does not mean "transfer of ownership". As the house involved in the case is real estate, Boyang Real Estate Company only delivered the house involved to Jiao Mingzhi is not enough to realize the purpose of settlement, this purpose can only be achieved after the transfer of the house involved is registered in the name of Jiao Mingzhi. By the same token, Jiao Mingzhi is fundamentally different from the expectation right of property rights arising from the purchase and sale based on the agreement of debt in rem, and his enjoyment as a creditor is still essentially a debt of money and should not take precedence over another debt of money, so the trial court ruled in accordance with the law to reject his objection to enforcement. At present, the new debt arising from the debt-for-property agreement cannot be implemented due to the fact that Boyang Real Estate Company was enforced by the original court to enforce the house involved. Jiao Mingzhi is also unable to realize the purpose of the debt-for-property agreement. He requests to cancel the "debt-for-property agreement" signed with Zhonglian Concrete Company, which contains the payment for xx households in Unit xx, Building xx, Paris 1, Chengyang District, Qingdao City. The reason is justified and should be supported. Based on the relativity of the contract and the principle of settlement of the new debt, Jiao Mingzhi has the right to resume the performance of the old debt, which requires Zhonglian Concrete Company to return 1443978.9 yuan to support it, but it needs to be clear that the nature of the money is not the purchase of the house but the material money. The (II) debt settlement agreement signed before the expiration of the debt performance period. Case No.:(2021) Liao 01 min zong No. 2393 The court held that article 45 of the minutes of the national court's civil and commercial trial work conference stipulates that if the parties reach an agreement on debt relief before the expiration of the debt performance period, the debt relief has not yet been delivered to the creditor, and the creditor requests the debtor to deliver it, the people's court shall explain to it that it shall bring a lawsuit according to the original creditor's right and debt relationship. If the parties still refuse to change their claims after the interpretation, they shall reject their claims, but this shall not affect their filing of separate proceedings based on the original creditor's rights and debts. Liaoning construction group co., ltd. admitted in the second instance that as of August 3, 2013, Liaoning fulespu real estate development co., ltd. had not settled with Liaoning fulespu real estate development co., ltd. and the amount of project funds still owed by Liaoning fulespu real estate development co., ltd. was not clear. at this time, the debt performance period for Liaoning fulespu real estate development co., ltd. to pay Liaoning construction group co, therefore, there is only a credit and debt relationship between Liaoning Construction Engineering Group Co., Ltd. and Liaoning Fulespu Real Estate Development Co., Ltd., and Liaoning Construction Engineering Group Co., Ltd. has no right to require Liaoning Fulespu Real Estate Development Co., Ltd. to deliver the house involved in the case. The court of first instance confirmed that Liaoning Construction Engineering Group Co., Ltd. does not have ownership of the house involved in the case. (III) the nature of the mortgage agreement is a non-contract or a practical contract. 1. Practical Contract-(2021) Liao 01 Min Zhong No. 12130 The court held that: to the housing debt contract as a practical contract, so the housing debt must be completed to complete the housing change registration procedures. Thus, the original claim between the creditor and the debtor is not extinguished by the agreement to settle the debt with the house, and in the debt with the house only the property is registered and the debtor is extinguished. Only the consent of the house to pay the debt, but not the transfer of property rights to the debt-relief house, the original claim has not been eliminated, the purpose of the debt can not be achieved. After verification by our hospital, the two houses involved in the case are still registered in the name of the defendant Xinyijiang Company (construction unit). Although the plaintiff Li Dengfu signed an offset agreement with the partner of the defendant Metallurgical Company (construction unit) and issued a receipt, the plaintiff did not actually possess or transfer the house involved in the case to the plaintiff's name, so the creditor's rights enjoyed by the plaintiff have not been eliminated, the court does not support the defendant's metallurgical company's defense of 6074475 yuan in debt with housing. The court of second instance on the issue of whether the agreement to settle the debt with the house has actually been fulfilled. The appellant's 12th Metallurgical Company believed that the two houses had been priced at 6074475 yuan to cover the project price. However, the two houses involved in the case have now been sold to outsiders and occupied by outsiders. Li Dengfu has not actually received or controlled the houses, and the appellant has not provided evidence to prove that Li Dengfu had received the houses involved and occupied them. The appellant, as the party who used the house to offset the debt, has the obligation to track, understand and control the situation of the house to offset the top of the project, and ensure the implementation of the agreement on the top of the house. The current house has not been registered in Li Dengfu's name, nor has it actually delivered to Li Dengfu. The conditions for Li Dengfu to obtain the ownership of the house are not available now, so the agreement on the actual implementation, the appellant's 12th Metallurgical Company claimed that the two houses had been priced at 6074475 yuan to cover the project price, which had no factual basis and was not supported by the court. 2. Nuocheng Sex Contract-(2021) Yu 10 Min Zhong No. 787 The court held that after Wang Gaofeng, Wang Xiaoyan, Hao Shuai Bing and Volkswagen Company reached the "Liquidation Agreement for the Withdrawing of Fairview Jiayuan Commercial Building Project", Hao Shuai Bing failed to pay part of the project payment obligations as agreed. However, after negotiation, Hao Shuai Bing, Wang Gaofeng and Wang Xiaoyan reached a separate agreement to settle debts with houses. Wang Xiaoyan has signed a commercial housing sales contract with Kaixiang Company, the seller of real estate and parking space, and paid a housing maintenance fund. The agreement on the settlement of the house debt is a non-contract, except for the express agreement of the parties, the agreement on the settlement of the house debt signed by the parties after the expiration of the settlement period of the project does not take the creditor's realistic receipt of the debt, or the acquisition of property rights such as the ownership and use of the debt, as an element of establishment or entry into force. The contract is valid as long as the parties' intentions are true and the contents of the contract do not violate the mandatory provisions of laws and administrative regulations. Therefore, Hao Shuaibing and Wang Gaofeng and Wang Xiaoyan reached a valid agreement to repay debts with houses, and Wang Xiaoyan signed a commercial housing sales contract with Kaixiang Company and paid a residential maintenance fund. The purpose of the contract can basically be realized. Therefore, it is not improper for the court of first instance not to support 1133952 yuan in Wang Gaofeng and Wang Xiaoyan's litigation request. On the question of whether Hao Shuaibing should support the overdue payment liquidated damages, although the Liquidation Agreement for the Project of Jinxiu Jiayuan Commercial Building stipulates the overdue payment liquidated damages, Wang Gaofeng, Wang Xiaoyan and Hao Shuaibing later reached an agreement on the payment of unpaid project funds. The agreement on the payment of overdue payment did not clearly stipulate whether the liquidated damages agreed in the previous agreement still need to be paid. Therefore, the court of first instance determined that both parties had formed new debts, it is not improper not to support the late payment liquidated damages agreed upon in the performance of the new debt. For the remaining amount of 288648 yuan because Hao Shuaibing did not pay on time, so he should bear the liability for breach of contract, the court of first instance to the National Interbank Lending Center announced the same period four times the one-year loan market quotation rate as the calculation standard. legal analysis The effect of the above-mentioned illustration divides the court's rules for determining the validity of a home-to-home debt agreement in accordance with the conclusion of a home-to-home debt agreement before/after the expiration of the period of performance of the debt. The internal logic is that if the debtor is eager to repay the debt before the expiration of the debt performance period, there may be a certain cognitive deviation between the amount of house price and the actual amount of debt. Therefore, the court will consider the legal effect of the agreement in combination with laws and regulations and the actual situation when determining the agreement signed before the expiration of the performance period. After the expiration of the period of performance of the debt, the conclusion of the debt-to-debt agreement is the agreement reached by both parties in the case of the value of the debt and the amount of the debt to be determined, as long as there is no malicious harm to the interests of third parties and other reasons, the court will support the delivery of the debt. The following is a description of the common principles of "house-to-house debt" treatment under existing laws: A house-to-house debt-to-debt agreement signed after the expiration of the (I)'s debt performance period. Article 410 of the Civil Code stipulates the conditions, methods and procedures for the realization of the mortgage right, that is, if the debtor fails to perform the debt due or the realization of the mortgage right agreed by the parties, the mortgagee may agree with the mortgagor to pay the mortgaged property at a discount or at the price of the proceeds from the auction or sale of the mortgaged property. If the agreement harms the interests of other creditors, the other creditors may request the people's court to revoke the agreement. If the mortgagee and the mortgagor fail to reach an agreement on the manner in which the mortgage is realized, the mortgagee may request the people's court to auction or sell the mortgaged property. In addition, the "Minutes of the National Court Civil and Commercial Trial Work Conference" (Law [2019] No. 254, hereinafter referred to as the "Ninth People's Conference Minutes") 44 stipulates: "The parties reach an agreement to offset the debt with property after the expiration of the debt performance period. If the creditor has not yet delivered to the creditor, and the creditor requests the debtor to deliver it, the people's court should focus on examining whether the debt-in-property agreement maliciously damages the legitimate rights of the third party. After examination, if the above circumstances do not exist and there are no other invalid reasons, the people's court shall support it in accordance with the law." After the expiration of the debt term, the two parties carried out reconciliation, liquidation, and reached an agreement on the transformation of the loan contract relationship into a housing sales contract relationship, the parties signed a housing debt agreement to eliminate the original debt and debt relationship, the establishment of a new sales contract relationship,
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Foreword At present, most of the cases of franchise contract disputes contacted by judicial practice are caused by dishonest franchise enterprises. In the agency activities, the author participated in several cases of franchise contract disputes, for franchising and franchise contract disputes, the author based on practical experience and reading related articles and books, organized as follows, with a view to enlightening readers. Text The Historical Development of 1. Franchising 1. On November 14, 1997, the former Ministry of Domestic Trade of China issued the Measures for the Administration of Commercial Franchising (for Trial Implementation), which stipulates that franchising refers to the franchisee's granting of his own trademarks (including service trademarks), trade names, products, patents, proprietary technologies and business models to the franchisee in the form of contracts, and the franchisee engages in business activities under the unified business model of the franchisor in accordance with the provisions of the contract, and pay the corresponding fees to the franchisor. 2. On December 31, 2004, the Ministry of Commerce issued the Measures for the Administration of Commercial Franchising, which was formally implemented on February 1, 2005. The Measures stipulate that commercial franchising means that through signing a contract, the franchisor will have the right to grant trademarks, trade names, business models and other business resources to others for use by the franchisee. The franchisee shall engage in business activities under a unified business system in accordance with the contract and pay franchise fees to the franchisee. 3. On January 31, 2007, the 167th executive meeting of the State Council passed the Regulations on the Administration of Commercial Franchising. Franchising refers to enterprises (hereinafter referred to as franchisees) that have registered trademarks, enterprise logos, patents, patents and other operating resources. The franchisees license their operating resources to other operators (hereinafter referred to as franchisees) in the form of contracts, and the franchisees operate under a unified operating model in accordance with the contract, and to the franchisor to pay franchise fees for business activities. In the same year, the Ministry of Commerce promulgated the Measures for the Administration of Information Disclosure of Commercial Franchises and the Measures for the Administration of the Filing of Commercial Franchises. 4. On November 7, 2011, the Ministry of Commerce revised the Administrative Measures for the Filing of Commercial Franchises. On January 18, 2012, the Ministry of Commerce revised the Measures for the Administration of Information Disclosure of Commercial Franchises. Characteristics of 2. franchising The basic characteristics of franchising are: (1) the franchisor owns the business resources such as registered trademarks, enterprise logos and patents; (II) the franchisee to use the franchisor's business resources under a specific business model according to the authorization of the franchisor; (III) the franchisee to pay the franchisor's franchise fees in accordance with the agreement. (I) academic perspective It is generally believed that franchising has five essential characteristics: (1) Franchising is a business model that uses one's own know-how to combine with the capital of others to expand the scale of operations. Thus, franchising is an expansion of technology and brand value, not capital. (2) Franchising is an organization in which the right of management controls ownership, in which the franchisee invests in the franchise and has the right to own and manage the store, but does not have the right to make management decisions. (3) Franchising is a win-win business model. The franchise relationship can only be effectively maintained if the franchisor is allowed to develop more efficiently than the direct business, and if the franchisee is allowed to gain more benefits than the business alone. (4) Franchising is a special kind of transaction. A special commodity is traded in a franchise, which includes a series of tangible or intangible commodities such as products, patents, business models, etc. Unlike a general transaction, the franchisor and the franchisee sign a franchise contract, which means the beginning of a longer-term transaction between the two parties. During the term of the contract, the franchisor and the franchisee shall maintain close and continuous mutual support and cooperation. (5) Franchising is an intelligent form of business organization. Franchising enables the franchisee to make the most of the combination, the use of their own advantages, and maximize the absorption of a wide range of social resources, the franchisee to reduce the risk of entrepreneurship and time, capital and other entrepreneurial costs. (Cite: See Hu Xiaosong, ed., Introduction to Franchising, Renmin University of China Press, 2011, p. 17. Chen Axing, Wu Yunliang, ed., Franchising, China Business Press, 2006, p. 6.) Views of (II) practitioners In practice, it has been argued that, starting from the definition of the Regulations, franchising consists of three basic elements: One is a resource, that is, the franchisor must have a registered trademark, corporate logo, patents, know-how and other operating resources; The second is a way, that is, a contractual relationship between the franchisor and the franchisee; the third is a model in which the franchisee operates under a unified business model. This unified model is reflected in all aspects, ranging from management, promotion, quality control, etc. to the decoration design of the store and even the setting of signs. In general, this model has the characteristics of unification, standardization and standardization. The core of franchising is the paid output of intangible assets. (Cited: Tu Zhi, Editor-in-Chief, Li Guangxing, and Yang Fan, Deputy Editor-in-Chief: "Application of Commercial Franchising Law", Kyushu Publishing House, 2010, p. 2.) The difference between (III) franchise and other business models. 1, the difference between franchising and chain management. Compared with franchising, chain management is a superior concept. The scope of chain management is far greater than franchising. The definition of chain operation by China Chain Management Association [35] is: "generally refers to a number of stores operating similar goods or services, combined into a consortium in a certain form, specialized division of labor under the overall planning, and centralized management is implemented on the basis of division of labor to simplify complex business activities in order to obtain economies of scale". According to the Opinions on the Operation and Management of Chain Stores issued by the former Ministry of Internal Trade on March 27, 1997, chain stores refer to a number of stores that operate similar commodities and use a unified trade name, and under the management of the same headquarters, adopt unified procurement or grant concessions, etc., to achieve economies of scale. Article 4 of the opinion stipulates that chain stores include the following three forms:(1) direct chain stores. The stores of the chain are all wholly owned or controlled by the headquarters and are operated under the direct leadership of the headquarters;(2) voluntary chain. The stores of the chain store are all independent legal persons, the ownership relationship of their respective assets remains unchanged, and they are jointly operated under the guidance of the headquarters;(3) franchise chain (or franchise chain). The stores of the chain store sign a contract with the headquarters to obtain the right to use the trademark, trade name, business technology and sales headquarters to develop goods, and the right to operate is concentrated in the headquarters. 2, the difference between franchising and direct sales. (IV) the "Regulations on the Administration of Direct Selling" promulgated by the State Council in 2005 stipulates: "The direct selling referred to in these regulations refers to the distribution method in which direct selling companies recruit direct sellers, and the direct sellers directly sell products to end consumers outside the fixed business premises". First, the legal relationship is different. Second, direct selling companies are different from franchisors. Third, direct sellers and franchisees are different. Fourth, the purpose of legislation is different. Fifth, the field of application is different. Direct selling is mainly applicable to the retail sector. Sixth, responsibility is different. (Source: Beijing Higher People's Court, Intellectual Property Division, "Interpretation of the Principles of Commercial Franchise Contracts and Trial Practice" Section 1) 3. franchise contract dispute A franchise contract is a continuous contract, and if the cooperation between the franchisor and the franchisee can develop smoothly as expected at the time of the original contract, then each franchise will become a successful franchise system. However, in reality, there are often dishonest franchisors and franchisees, and it is inevitable that the market will change and deviate from the original franchise forecast, and there will be matters that were not expected at the time of the establishment of cooperation and no agreement can be reached. Therefore, the root cause of franchise disputes is that the franchisor and the franchisee are different subjects of interest, and franchise contract disputes will inevitably occur based on conflicts of interest. Lawyer Case: The author helped the above-mentioned licensees to recover the franchise fee and interest in the franchise contract dispute case between Wang Moumou, Liu Moumou, Li Moumou, Lu Moumou and other 6 people and Bright Eyes Biological Company. The six parties signed the "Joining Agency Agreement (Prefecture-level Agency)" with Mingmou Company at different times. The contract respectively stipulated the joining method, expenses, agency period, rights and obligations, etc. The attached table after the contract was the "Equipment Configuration List of Mingmou Lifetime Vision Rehabilitation Project". Several parties remitted money to the franchisor company and its legal person respectively. The latter parties want to terminate the contract with Bright Eye and demand a refund of the franchise fee. The lawyer carefully consulted the "franchise agency agreement" and found the relevant industry norms and effectiveness. Finally, according to the documents issued by the general office of the National Health Commission and other six departments, it was determined that the franchisor's franchise behavior was an act of deceiving consumers and seeking illegitimate interests. It used the "health care cream" without quality inspection to carry out vision rehabilitation physiotherapy, and exaggerated and fabricated the treatment effect, it has disrupted the regulatory order of the myopia treatment and health care products market. After the court heard the judgment, it was found that the franchise agreement violated the public order and good customs of the society and harmed the public interest of the society. The franchise agency agreement was found to be invalid, and the franchise fees of several parties were returned, which achieved good results. Common Types of 4. Franchise Contract Disputes and the Concept of Court Judgment Common Types of (I) Franchise Contract Disputes 1, confirm the franchise contract invalid dispute. 2, the cancellation of the franchise contract dispute. 3, the franchise contract to terminate the dispute. 4, due to the performance of the franchise contract in breach of contract, the request to terminate the contract or bear the liability for breach of contract. The Judgment Idea of (II) Franchise Contract Disputes First, respect for contractual autonomy and appropriate protection of relatively vulnerable franchisees. Second, the reasonable allocation of the burden of proof, reasonable interpretation. When the franchisee proves that the franchisor constitutes fraud, false propaganda and fails to fulfill the obligation of information disclosure, taking into account the actual ability of the franchisee to prove, the burden of proof is reasonably allocated, and the litigation relationship between the two parties is balanced by the transfer of the burden of proof. Many franchisees sue is not clear whether the contract is invalid or cancel the contract or terminate the contract, at this time the judge needs to exercise the right of interpretation in a timely manner, according to the basic case to guide the parties to adjust the claim. For the legal consequences of the contract being confirmed invalid, revoked or terminated, the judge should also explain in time that, with the consent of the parties, it can be dealt with together in one case to reduce the burden of the parties. Third, deal with related cases, and strive to achieve the unity of legal and social effects. (Cited: Beijing Higher People's Court, Intellectual Property Division, "Interpretation of the Principles of Commercial Franchise Contracts and Trial Practice") Relevant laws and regulations 1. Regulations on the Administration of Commercial Franchising, issued by the State Council, 2007 "Competing laws and regulations: Trademark Law of the People's Republic of China (2019 Revision) the People's Republic of China Copyright Law Anti-Unfair Competition Law of the People's Republic of China (2019 Revision) 」 2. Measures for the Administration of Information Disclosure of Commercial Franchises, Ministry of Commerce, 2012 3. Guiding Opinions of Beijing Higher People's Court on Several Issues Concerning the Application of Laws in Hearing Disputes over Commercial Franchise Contracts, issued by: Beijing Higher People's Court, 2011; "The original guiding opinions and management regulations have not been revised, and will still refer to the provisions of the original the People's Republic of China Contract Law, the General Principles of the People's Republic of China Civil Law and other laws and regulations. For example, Article 13," If a party to a franchise contract fails to perform the contract as agreed, making it difficult to achieve the fundamental purpose of the contract, the other party may terminate the contract in accordance with Articles 94 and 96 of the the People's Republic of China Contract Law 」
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Introduction Today's judicial circles are generally faced with the problem of difficult enforcement, so the state has designed a litigation preservation system to ensure enforcement. However, a new problem arises. What if someone else's property is mistakenly sealed during preservation, or if someone else's property is executed during execution? Since 2007, the civil procedure law of our country has established the lawsuit of execution objection, which is the first time that the legislative provisions of the lawsuit of execution objection appear in our country. The interpretation of several issues in the implementation procedure of the Civil Procedure Law promulgated in 2008 (hereinafter referred to as the interpretation) stipulates the cause, subject of litigation, pre-procedure and other aspects of the lawsuit of execution objection. In 2012, the decision on amending the the People's Republic of China Civil Procedure Law was passed to retain the relevant contents of the lawsuit of execution objection, and only the serial number of the articles was revised until the promulgation of the Judicial Interpretation of the Civil Procedure Law in 2015, we have improved some operational details such as the filing procedures related to the execution of the objection, the gap between the outsider's objection procedure and the service procedure, and with the emergence of each law and regulation related to the execution of the objection, the relevant laws and regulations on the execution of the objection have been continuously improved and developed. The purpose of this paper is to discuss how to provide relief to outsiders in the execution objection suit, with a view to enlightening the reader. Text If an outsider claims ownership of the subject matter of execution or has other substantive rights sufficient to prevent the transfer or delivery of the subject matter of execution, he may object to the enforcement court. In the course of execution, if an outsider raises a written objection to the subject matter of execution, the people's court shall examine it within 15 days from the date of receipt of the written objection, and if the reason is established, it shall rule to suspend the execution of the subject matter; if the reason is not established, it shall rule to reject it. If an outsider or party to the case is not satisfied with the ruling and believes that the original judgment or ruling is wrong, it shall be handled in accordance with the trial supervision procedure; if it has nothing to do with the original judgment or ruling, it may bring a lawsuit in a people's court within 15 days from the date of service of the ruling. During the period of examination of objections by outsiders, the people's court shall not impose sanctions on the subject matter of enforcement. If an outsider files a lawsuit, the execution shall not be suspended during the period of the lawsuit; If an outsider's claim has a reason or provides sufficient and effective guarantee to request the suspension of execution, it may order to stop the disposition of the subject matter of execution; if the applicant for execution provides sufficient and effective guarantee to request the continuation of execution, it shall continue to execute. If an outsider requests to stop execution, requests to cancel the seizure, seizure or freezing, or if the executor requests to continue execution in error, causing losses to the other party, compensation shall be made. Procedure for Objection Subject of objection: outsider Reason for objection: the right of an outsider to claim the subject matter of execution Objection procedure: a written objection to the enforcement court during enforcement Examination of the objection: the court shall conduct the examination within 15 days from the date of receipt of the written objection Results of the review: if the objection is established, the execution of the subject matter shall be suspended; if the objection is not established, the objection of the outsider shall be rejected. Treatment of dissent 1, trial supervision procedures to deal. If an outsider is not satisfied with the execution objection ruling and believes that the original effective judgment or ruling is indeed wrong, he may apply to the people's court that made the original judgment, ruling or mediation statement within 6 months from the date of service of the execution objection ruling. 2, the implementation of the objection to the action. If an outsider or party to the case is not satisfied with the execution objection ruling and considers that it has nothing to do with the original effective judgment or ruling, he may file an execution objection lawsuit with the enforcement court from 15 days from the date of service of the ruling.
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2021-12
Foreword On June 10, 2021, the 29th meeting of the Standing Committee of the 13th National People's Congress passed the "Decision of the Standing Committee of the National People's Congress on Amending the the People's Republic of China Work Safety Law", and the "the People's Republic of China Work Safety Law" "(Hereinafter referred to as the" Work Safety Law ") has been amended for the third time and will come into force on September 1, 2021. The new "Safety Production Law" has greatly increased the penalties for production safety violations. Under the background of increasingly strict production safety regulations and continuous strengthening of law enforcement, production and business units must not only do daily compliance work, but also have production safety. After the accident, timely disposal and proper response, how to effectively defend against the administrative punishment of the emergency management department, reducing the loss of enterprises is also a problem worthy of attention and concern. The author summarizes and shares the legislative system and practical experience in the field of production safety. Definition and punishment standard of general accident 1. Definition of general accident "General accident" refers to the accident that causes casualties or the lowest direct economic loss in the classification of production safety accidents. Its specific definition can be learned from the legal provisions: According to Article 118 of the "Work Safety Law": "The classification standards for general accidents, major accidents, major accidents, and particularly major accidents of production safety stipulated in this law shall be prescribed by the State Council." That is, the National People's Congress has authorized the State Council to formulate the standard for "general accidents", and the "Safety Production Law" does not specifically divide the standard for accidents. According to Article 3 of the Regulations on Reporting, Investigation and Handling of Production Safety Accidents formulated by the State Council, "General accidents refer to accidents that cause less than 3 deaths, or serious injuries to less than 10 people, or direct economic losses of less than 10 million yuan." To sum up, the specific definition of "general accident" can be summarized as: accidents that cause less than 3 deaths, or less than 10 serious injuries, or direct economic losses of less than 10 million yuan in the production and business activities of production and business units. 2. Penalty standard for general accidents According to the provisions of Article 95 of the "Safety Production Law" (2021 Amendment): "If the main person in charge of the production and business unit fails to perform the safety production management duties stipulated in this law, resulting in a production safety accident, the emergency management department shall follow the following Provisions shall be imposed a fine: (1) In the event of a general accident, a fine of 40% of the previous year's annual income shall be imposed." Article 114 stipulates: "In the event of a production safety accident, the responsible production and business unit shall, in addition to requiring it to bear corresponding compensation and other responsibilities in accordance with the law, be fined by the emergency management department in accordance with the following provisions: (1) General In the event of an accident, a fine of 300,000 yuan to 1 million yuan shall be imposed." According to the above-mentioned legal provisions, it can be known that the administrative punishment of "general accidents" adopts the "double penalty system", that is, the production and business operation units and their main responsible persons are subject to fines, and the amount of fines is relatively large. II Practical Dilemma of General Accident Identification and Punishment 1, the identification and punishment method is simple and crude. In the law enforcement practice of general accident identification and punishment, law enforcement personnel mostly adopt relatively simple and rough punishment methods, that is, as long as they conform to the definition of general accident in form, they will directly identify and apply the punishment standards stipulated in the "safety production law", regardless of whether they can constitute general accidents or whether the fine of administrative punishment is too heavy, however, the punished enterprises often lack professional knowledge in the field of production safety and have no way to protect their rights, so they can only bear huge fines and losses. Examples: ① Company A caused 1 death in the process of production and operation, which formally meets the requirements of "less than 3 deaths". Can it be directly identified as a general accident and be subject to administrative punishment? ② Company A caused 1 serious injury in the process of production and operation, which formally meets the requirements of "less than 10 serious injuries". Can it be directly identified as a general accident and be subject to administrative punishment? ③ Company A caused direct economic losses of 1 million yuan in the process of production and operation, without casualties, and formally met the "direct economic losses of less than 10 million yuan". Can it be directly identified as a general accident and be subject to administrative punishment? ④ A company in the production and operation process caused 1 yuan of direct economic losses, no casualties, formally meet the "10 million yuan of direct economic losses", can it be directly identified as a general accident and administrative punishment? In the law enforcement process of the emergency management department, except for the fourth extreme case, the remaining three cases will generally be investigated and punishment decisions will be made. The reason is that the above three cases meet the definition of "general accident" in form, so punishment is required. This directly leads to the infringed person in the production safety accident to give up the judicial relief channel, report to the emergency management department, take the high fine as the bargaining chip with the production and business operation unit, and obtain the benefit beyond the actual loss. In the face of administrative punishment, enterprises often have no choice but to compromise. 2. The provisions of the lower law are divorced from reality and urgently need to be revised. Article 3 of the Regulations on Reporting, Investigation and Handling of Production Safety Accidents only stipulates the upper limit of the composition of "general accidents", that is, "less than 3 deaths, less than 10 serious injuries, and direct economic losses of less than 10 million yuan", but it does not specify whether general accidents have the lower limit on the statutory constituent elements and the conditions for administrative punishment, as a result, the law enforcement personnel of the emergency management department (the former safety supervision department) impose penalties or obviously excessive administrative penalties on production and business units that do not meet the conditions for administrative penalties. In the field of administrative penalties for general accidents, there are arbitrary penalties and excessive penalties. Law enforcement chaos. III Defense Basis for Enterprises to Deal with General Accident Penalties (Taking Shandong Region as an Example) In view of the above-mentioned administrative punishment of law enforcement chaos, the author through the big data retrieval of the relevant provisions of the general accident punishment, and combined with practical experience for effective analysis, in order to deal with the general accident punishment for enterprises to provide a reasonable basis for rights protection and relief channels: 1. Legal basis for rights protection ① Article 118 of the "the People's Republic of China Safety Production Law" clearly stipulates that the classification standards for general production safety accidents, major accidents, major accidents, and particularly major accidents stipulated in this law shall be prescribed by the State Council. The above-mentioned laws have clearly stipulated that the National People's Congress has authorized the State Council to formulate general accident standards, and the safety production law does not specifically divide accident standards. ② According to Article 3 of the Regulations on Reporting, Investigation and Handling of Production Safety Accidents, accidents are generally divided into the following levels: (4) General accidents refer to deaths of less than 3 people, or serious injuries of less than 10 people, or direct economic losses of less than 10 million yuan. The department of work safety supervision and administration under the State Council may, in conjunction with the relevant departments under the State Council, formulate supplementary provisions on the classification of accidents. According to the provisions of the Regulations on Reporting, Investigation and Handling of Production Safety Accidents, the safety production supervision and management department of the State Council and other relevant departments can formulate supplementary regulations for the classification of accidents. After the author's review, there are currently no other supplementary regulations for the classification of accidents. Provisions, that is, the only basis for the identification of general accidents is Article 3 of the "Regulations on Reporting, Investigation and Handling of Production Safety Accidents. ③ The provisions of Article 14 of the "Regulations on Penalties for Production Safety Accidents": The accident unit shall cause the death of less than 3 people, or serious injuries to more than 3 people and less than 10 people (including acute industrial poisoning, the same below), or 3 million yuan to 10 million yuan. If the general accident with direct economic losses below RMB yuan is responsible, a fine of 200000 yuan to 500000 yuan shall be imposed. ④ "Reply of the General Office of the State Administration of Work Safety on Issues Concerning Administrative Penalties for General Production Safety Accidents" Political and Legal Letter of the General Administration of Work Safety [2014] No. 136: "If a production safety accident causes serious injuries to 1 to 2 people or direct economic losses of less than 3 million yuan, generally no fines will be imposed on the unit where the accident occurred." ⑤ According to the relevant provisions of the "Shandong Province Safety Production Administrative Penalty Discretionary Benchmark (Trial)" issued by the Shandong Provincial Emergency Department, the administrative penalty authority of the emergency management department responsible for general accidents of production and business units is as follows: 2. Ways of relief and defense According to the above provisions, it can be known that the penalty for general accidents has a lower limit, and the penalty for general accidents based on death must meet the legal condition of "death of less than 3 people"; the penalty for general accidents based on serious injuries must meet the legal condition of "more than 3 people and less than 10 people (including acute industrial poisoning)", and there is a lower limit of "more than 3 people"; general accident penalties based on direct economic losses must meet the legal conditions of "3 million yuan to 10 million yuan", and there is a lower limit of "3 million yuan or more". When the safety production accidents in an enterprise only meet the upper limit but not the lower limit, the conditions for administrative punishment are not met, and the emergency management department has no right to punish the enterprise. The above four examples also have corresponding answers here: the first situation should be identified as a general accident and be given administrative punishment; the second and third situations constitute a general accident, but do not meet the conditions for administrative punishment, should not be filed for investigation; the fourth situation should not constitute a general accident and does not meet the conditions for administrative punishment, should not be filed for investigation. 4 Advice from Lawyers 1. With the implementation of the new "Safety Production Law", enterprises (especially construction enterprises) should attach great importance to the compliance of safety production work, strictly implement the safety production standards stipulated by the law, fulfill various safety production obligations, and establish safety The standard system of production prevents the occurrence of production discretionary accidents. If necessary, professional lawyers can be hired to help enterprises establish a compliance system for production safety. 2. Due to the complexity of laws and regulations and local regulations in the field of production safety, the current update of regulations in the field of production safety in my country is also seriously lagging behind. Although the "Production Safety Law" has been newly revised, the "Production Safety Accident Reporting and Investigation and Handling Regulations" And other administrative regulations have not been updated in time, and they have been seriously divorced from reality. It directly causes law enforcement personnel to be at a loss in the process of law enforcement, and can only carry out simple and rough application, resulting in enterprises being wrongly punished or punished too heavily. For the investigation of production safety accidents, professional lawyers should be hired to intervene in the case filing process, participate in the defense and statement procedure, and strive to resolve the administrative punishment at the front end. If the administrative punishment is wrong, administrative litigation should be filed according to law to protect the legitimate rights and interests of enterprises.
2021-12-05
03
2021-12
[brief case]] In June 2017, Liu purchased personal accident insurance from a property insurance company through online insurance, which covers 1-3 categories. When Liu filled in the insurance information, he chose the occupation of being an expatriate (belonging to category 2). After the successful payment of the insurance, a property insurance company issued an insurance policy. The insurance period recorded in the policy is from June 18, 2017 to June 17, 2018. The coverage includes: accidental injury death disability insurance amount of 500000 yuan, accidental injury medical expenses insurance amount of 30000 yuan, hospitalization living allowance insurance amount of 36000 yuan, each accident accidental injury medical expenses without deductible, according to the proportion of 100 compensation, hospitalization living allowance only protects the insured due to accidental injury caused by hospitalization, does not protect the insured due to illness caused by hospitalization, there is no deductible for each accident hospitalization living allowance, and the daily compensation is 200 yuan. During the insurance period, the number of days of each compensation shall not exceed 90 days, and the total accumulated number of days of compensation shall not exceed 180 days. At the end of January 2018, Liu was accidentally injured at work, and was diagnosed as 1. Avulsion of the left forearm was completely severed; 2. Open fracture and dislocation of the left elbow joint. From January 31, 2018 to March 31, 2018, Liu was hospitalized in the hospital and spent 163474.44 yuan on medical expenses. On February 1, 2018, a property insurance company investigated Liu's work with Liu's colleague, who said that he and Liu were both drilling pile operators in a mechanical and electrical decoration engineering company. Later, a property insurance company refused to settle the claim on the grounds that the occupation informed by Liu when he was insured did not match the actual occupation. focus of controversy] Whether the insurance company should be liable for insurance claims. The court of first instance held that] According to the provisions of Article 16 of the the People's Republic of China Insurance Law: "If an insurance contract is concluded and the insurer makes inquiries about the subject matter of the insurance or the relevant circumstances of the insured, the applicant shall truthfully inform him. If the applicant intentionally or due to gross negligence fails to perform the obligation of truthful disclosure stipulated in the preceding paragraph, which is sufficient to affect the insurer's decision whether to agree to underwrite or increase the insurance premium rate, the insurer shall have the right to terminate the contract. The right to rescind a contract provided for in the preceding paragraph shall be extinguished without exercise for more than 30 days from the date on which the insurer becomes aware of the cause of rescission. If more than two years have passed since the date of the establishment of the contract, the insurer shall not terminate the contract; if an insurance accident occurs, the insurer shall bear the responsibility for compensation or payment of insurance benefits. ......" In this case, a property insurance company on February 1, 2018, after knowing that Liu's insured occupation was inconsistent with the actual occupation, it did not exercise the right of discharge within 30 days, which did not meet the exemption of the above-mentioned legal provisions, and this defense of a property insurance company could not be established. A property insurance company shall bear the insurance liability in this case. According to the insurance policy and insurance terms, combined with Liu's disability grade and hospitalization medical situation, the judgment supports Liu's claim, that is, a property insurance company shall pay Liu 250000 yuan for accidental disability compensation, 30000 yuan for accidental injury medical expenses and 11600 yuan for hospitalization living allowance. The court of second instance held that] According to the facts found by the court of first instance, a property insurance company knew that Liu's insured occupation was inconsistent with his actual occupation when investigating Liu's work on February 1, 2018, but a property insurance company did not exercise the right of discharge within 30 days, the court of first instance found that a property insurance company's defense of not assuming insurance liability on the grounds that Liu did not truthfully inform the profession did not conform to the exemption situation stipulated in Article 16 of the the People's Republic of China Insurance Law, which had a factual basis, and the court maintained it. At present, it takes longer for a property insurance company to appeal and explain its follow-up investigation and approval process in the trial, which is not enough to be the reason for it to exercise the right of discharge beyond the legal time limit. The appeal of a property insurance company could not be established and the Court rejected it. Lawyer Advice] In the course of insurance business, it is inevitable that the policyholder fails to truthfully inform the insurance company about the subject matter of the insurance or the insured, in which case the insurance company has the right to unilaterally terminate the insurance contract, but the right of termination must be exercised within the statutory time limit. Through this case, it is recommended that insurance companies carry out regular business training on the Insurance Law and other relevant laws and regulations and common risks and precautions in business practice, so as to avoid failure to fulfill legal obligations, exceeding the legal time limit, etc., resulting in the inability to refuse compensation in accordance with the law and the trial. The adverse consequences of the inability to effectively defend.
2021-12-03
01
2021-12
The so-called resignation certificate is called the certificate of termination or termination of the labor contract in the labor law. In practice, disputes caused by the employer's failure to issue a resignation certificate and the content that should be stated in the resignation certificate are common. It is the legal obligation of the employer to issue the resignation certificate of the 1.. The first paragraph of Article 50 of the "Labor Contract Law" stipulates: "The employer shall issue a certificate of termination or termination of the labor contract when the labor contract is terminated or terminated, and handle the transfer of files and social insurance relations for the laborer within 15 days. formalities." Article 24 of the "Regulations on the Implementation of the Labor Contract Law" stipulates: "The certificate of termination or termination of the labor contract issued by the employer shall specify the term of the labor contract, the date of termination or termination of the labor contract, the job position, and the number of years of work in the unit." The "shall be stated" in this article can be understood as "must be stated", which is a necessary clause of the resignation certificate, but is it not allowed to record other contents? There are different understandings in practice. The author thinks that the content of the certificate issued by the employer to terminate or terminate the contract should be judged from the nature of the subject of the employer's act. Both employers and workers are equal civil subjects in civil acts. According to the general principle of civil acts of "freedom without prohibition by law", although the "Regulations on the Implementation of the Labor Contract Law" stipulates that employers issue the termination or termination of labor contracts. The content of the certificate, but there is no prohibition on the relevant matters issued by the employer to terminate or terminate the labor contract. Therefore, it does not violate the provisions of laws and regulations for the employer to specify the reasons for the termination of the contract in the certificate of termination or termination of the labor contract. The first paragraph of Article 50 of the "Social Insurance Law" stipulates: "The employer shall promptly issue a certificate of termination or termination of the labor relationship for the unemployed, and notify the list of the unemployed within 15 days from the date of termination or termination of the labor relationship. Social insurance agency." In practice, many employers do not issue resignation certificates because the workers still have outstanding matters and have not yet been handed over clearly. Can the employer defend against this? According to the above provisions, it is the legal obligation of the employer to issue a resignation certificate, and whether the worker is clearly handed over is not a prerequisite for the employer to issue a resignation certificate. Therefore, the employer cannot refuse to issue a resignation certificate on the grounds that the worker has outstanding matters. 2. the legal liability of the employer for not issuing the resignation certificate There are two legislative purposes for the employer to issue a resignation certificate: one is the requirement for the reemployment of workers, and the other is the need for workers to register for unemployment. Article 89 of the "Labor Contract Law" stipulates: "If the employer violates the provisions of this law and fails to issue a written certificate to the laborer to terminate or terminate the labor contract, the labor administrative department shall order it to make corrections; if damage is caused to the laborer, it shall be liable for compensation." If the employer does not issue a resignation certificate to the laborer in accordance with the regulations, it may prevent the laborer from re-employment, and may also cause the loss of the laborer's unemployment insurance benefits. If the employer causes damage to the laborer, it shall be liable for compensation in accordance with the law. In practice, there are two main types of compensation disputes caused by the employer's failure to issue a resignation certificate: one is to compensate the worker for the loss of wages caused by the lack of a resignation certificate, and the other is to compensate the worker for the loss of unemployment insurance benefits. Loss of wages due to (I) non-employment Article 91 of the "Labor Contract Law" stipulates: "If an employer recruits a worker whose labor contract with other employers has not yet been terminated or terminated, and causes losses to other employers, it shall bear joint and several liability for compensation." In practice, most employers require new employees to provide proof of separation based on risk control requirements. If the employer does not issue a separation certificate to the worker, it may affect the employment of the worker and there is a risk of liability. Loss of (II) unemployment insurance benefits The second and third paragraphs of Article 50 of the Social Insurance Law stipulate: "An unemployed person shall go through unemployment registration at a designated public employment service agency in a timely manner with a certificate of termination or dissolution of labor relations issued by his or her unit. The unemployed person shall go through the formalities of receiving unemployment insurance benefits at a social insurance agency with his or her unemployment registration certificate and personal identity certificate. The period for receiving unemployment insurance benefits shall be calculated from the date of unemployment registration." Article 19 of the Ministry of Human Resources and Social Security's "Several Provisions on the Implementation of the the People's Republic of China Social Insurance Law" (Order No. 13 of the Ministry of Human Resources and Social Security) stipulates: "If the employer refuses to issue a termination or termination certificate to the employee when terminating or terminating the labor contract, resulting in the employee being unable to enjoy social insurance benefits, the employer shall be liable for compensation according to law." The certificate of termination or dissolution of the labor relationship issued by the employer is a necessary condition for the worker to register for unemployment. Without a resignation certificate, workers may not be able to enjoy unemployment insurance benefits, and the employer shall bear the corresponding liability for compensation.
2021-12-01
01
2021-12
Viewpoint | Criminal procedure trial remote video testimony system
The standardized operation of remote video testimony cannot be separated from the guarantee of three technical elements: personnel, material and technology. Although the economic development gap between the eastern and western regions of China is large, resulting in the uneven development level of network technology and the inconsistent construction progress of Internet courts, under the condition that the existing software and hardware equipment can effectively support remote video testimony, the space for the combination of remote video testimony and network information technology should be further improved, this paper will describe how to make remote video testimony more standardized and systematic from three aspects: perfecting the intelligent application mechanism of remote video testimony, establishing a fixed and mobile remote video testimony mode, and perfecting the standard mechanism of audio and video data storage, so that criminal proceedings participants and the public will gradually accept the remote video testimony method, and realize the leap from quantitative change to qualitative change in the crucial stage of "comprehensive coverage and gradual improvement" of remote video testimony. (I) and Improve the Intelligent Application Mechanism of Remote Video Testimony First of all, the electronic record of testimony is the basis and premise of intelligent testimony. The establishment and improvement of the synchronous generation mechanism of witness testimony along with the case file is inseparable from the "thousand-lamp mode" of paperless testimony in the whole process. Only by implementing the pre-identification of testimony (confirming whether the information of the parties in the trial is qualified and accurate through third-party organizations, I .e. software suppliers, public security identification systems and other means), and quickly labeling cataloguing (implementing the "fast labeling instructions" fast ", only by realizing continuous labeling, staggered labeling, editing labeling, etc.), synchronous circulation of testimony records (synchronous generation and circulation of verbal evidence such as witness testimony and victim statement), one-click accurate return to justice, and full tracking, can the automation and intelligence of witness testimony, litigation service and judicial management be realized as soon as possible. Secondly, we should promote an all-round intelligent auxiliary case handling mechanism, promote the remote litigation diversion mode, cater to the principle of "fine handling of suspected cases (online and offline joint handling) and quick handling of simple cases (online and integrated process)" criminal litigation economy and proportionality, avoid the dilemma of "excessive procedures" for simple cases and "insufficient procedures" for complex cases, and thus realize a multi-value system of accurate diversion of different procedures. At the same time, we should actively develop a multi-functional testimony platform, improve voice recognition, risk warning, portrait generation, automatic inspection and other auxiliary functions to improve the quality of criminal trial. Finally, strengthen the supervision and management of intelligent testimony. Actively explore the "dual-seat" testimony mechanism (PC PC, MB, PC MB), keep the emergency contact number unblocked during the testimony process, do not replace the testimony, do not accept any form of assistance from any organization, and do not use virtual (virtual) background to prevent human operation of witnesses to give testimony. Standardize and improve the supervision system for testimony, and gradually establish a unified platform with real-time evidence storage, asynchronous cross-examination and efficient testimony (hereinafter referred to as the three certificates) to ensure that the testimony process leaves traces and data is safe and reliable. (II) the establishment of fixed, mobile remote video testimony mode Explore the establishment of a "point-to-face" remote video testimony model. As mentioned above, on the basis of establishing diversified remote video testimony sites, in order to prevent the content obtained through the "three certificates" from being deleted, embezzled and intercepted, it is not suitable to use the external network for online testimony for a long time. Therefore, in judicial practice, the matter establishes a fixed "point" (court) to "face" (notary office, procuratorate, law firm, residence, fair unit, etc.) remote video testimony mode through encrypted network channels and separate operation of internal and external networks. In short, a remote video testimony system is set up between public security organs and other organs nationwide, so that witnesses can choose the nearest place to testify, so that judicial personnel can conduct remote video questioning and cross-examination of witnesses in the same city or other places in this organ, breaking the time and space restrictions and reshaping the testimony mode. In addition, while the remote video testimony system is perfect, organs at all levels should actively try to establish remote video testimony studios to integrate data encryption, transmission speed, coverage and other aspects through virtual private network (VPN). Of course, in order to avoid the possibility of "weakening the antagonism of court hearings", testimony studios should also be hung with national emblems, set up special split-screen displays, supervisors seats, timing devices, etc. After the completion of the testimony procedure, the electronic and paper testimony transcripts and audio and video recordings of the testimony shall be transmitted or mailed to the court. Of course, before the construction of facilities in fixed places such as testimony studios is not yet perfect and mature, it is also possible to vigorously promote litigation platforms such as "mobile micro-courts" or to jointly develop APP with special functions such as audio-visual recording, face recognition, remote video testimony, etc. (III) Improve the Standard Mechanism of Audio and Video Data Storage As electronic evidence, the acquisition, preservation and transmission of audio-visual materials for remote video testimony in criminal cases should set up relatively strict standard procedures, such as special examination of the electronic signature on the testimony transcript and prevention of personal information disclosure during transmission. At the same time, the electronic evidence generated after the completion of the witness's testimony should be numbered in the court system terminal in time, indicating the case attribute, production time, place and other relevant information. In the same criminal case heard by the court, all the evidence formed by multiple inquiries of a single or multiple witnesses should be clearly distinguished and classified, uniformly stored in the original folder, and sub-folders should be established as needed to facilitate later inquiries. In the process of importing (sending out) audio and video materials, check whether the contents of the files are consistent with the original data contents such as file materials, and pay attention to the types of video and audio formats (AVI, DAT, RMVP, MP4, AIFF, MPEG, etc.) formed by remote video testimony, because different formats correspond to different volumes, image quality, compression rates, standards, etc, this will affect the transmission speed, storage space and player selection of audio-visual materials. In order to avoid the transmission of video and audio electronic evidence between different organs, such as slow transmission and inability to play, a unified video and audio format and special player should be adopted between the court and the remote video testimony place. In addition, due to the vulnerability of the audio-visual data storage carrier itself and the high requirements for the storage environment, the "preservation" should not only stay at the technical level, but also pay attention to the management level. The relevant departments of the court should formulate the early warning and priority preservation mechanism of the storage scheme, create a good carrier storage environment, and avoid the irretrievable data caused by carrier corrosion. At the same time, the carrier maintenance is divided into "key" maintenance and "routine" maintenance. When the maintenance period expires, the relevant data will be removed from the "maintenance" range, the storage carrier indicators will be regularly detected, the risk limit value will be set, and the storage information will be migrated, copied and simulated (OAIS reference model) if necessary.
2021-12-01
01
2021-12
Viewpoint | The mandatory exit mechanism of employee stock ownership in state-owned enterprises.
The reform of state-owned enterprises is a major strategic step for the central government to implement the policy of strengthening and increasing state-owned enterprises, which meets the objective needs of building a socialist market economy. Employee stock ownership can effectively increase the cohesion of enterprises and become an important part of the current round of mixed ownership reform of state-owned enterprises. Employee shareholding in state-owned enterprises involves a series of issues such as the company's equity structure, the daily management of employee equity and exit. In practice, the exit process of employee equity is more complex. Therefore, how to strike a balance between complying with laws, regulations and policies and ensuring the rights and interests of employees is not only related to the reform results of state-owned enterprises, but also related to the development of enterprises and the stability of the company's equity structure. An exit mechanism for employee shareholding. (I) classification According to the detailed rules for the implementation of the pilot work of employee stock ownership in state-owned enterprises in Shandong Province, the withdrawal of employee stock ownership includes voluntary withdrawal and compulsory withdrawal. The voluntary transfer mechanism is aimed at the situation where employees voluntarily withdraw from equity after the expiration of the lock-up period. Compulsory withdrawal is based on the basic principle of binding the interests of the pilot work of employee stock ownership in state-owned enterprises and fixing shares by post. When the position or status of an employee changes and no longer meets the conditions for holding shares, the mandatory withdrawal mechanism of employee stock ownership should be triggered to realize the change of post and stock and the withdrawal of shares. The forced withdrawal of employee stock ownership in (II) state-owned enterprises. Forced exit, also known as conditional forfeiture exit, refers to the loss of the original shareholding conditions, resulting in the loss of the employee's corresponding shareholding qualifications, thereby giving up the shares held. It can be roughly divided into two situations: one is job change. After the employee is transferred according to the requirements of the company, the new position does not apply to the employee stock ownership plan; the other is that the labor relationship between the employee and the company is terminated, and the original shares should be withdrawn. With regard to the compulsory withdrawal of employee stock ownership in pilot enterprises, Article (III) of Part IV of the opinions points out that if a shareholding employee leaves the company due to resignation, transfer, retirement, death or dismissal, the shares shall be transferred internally within 12 months. Two basic rules of compulsory withdrawal mechanism (I) Assignee 1, employee shareholding platform or company. 2. Eligible employees 3. Shareholders or management (II) exit price The Opinions point out that if it is transferred to a shareholding platform, qualified employees or non-public capital shareholders, the transfer price shall be determined through consultation between the two parties; if it is transferred to a state-owned shareholder, the transfer price shall not be higher than the audited net asset value per share of the previous year. The transfer of shares by employees of state-controlled listed companies shall be handled in accordance with the relevant provisions of securities supervision. (III) Forced Exit Classification 1, employee shareholding is not responsible for mandatory withdrawal. The triggering situation of normal employee resignation can be understood as the situation that the employee needs to quit due to the subjective fault of the employee, including:(1) formal retirement;(2) during the contract period, the employee loses the ability to work due to work injury or illness, quits the job and terminates the labor contract;(3) dies or is declared dead;(4) the company terminates the labor contract according to law due to incompetence;(5) The employee proposes to terminate the labor contract and does not join the competitor company within 2 years after the termination of the labor contract;(6) The company and the employee negotiate to terminate the labor contract;(7) The labor contract is terminated due to the transfer of the company;(8) The shareholding employee has other circumstances stipulated in the labor contract. If an employee involved in the shareholding withdraws due to a normal departure, the shareholding shall be withdrawn in one lump sum within a window of 12 months after the departure. 2, employee shareholding is responsible for mandatory withdrawal. A compulsory withdrawal is a situation in which the shareholding employee must withdraw from the shareholding due to a violation of the law, company regulations or due to the fault of the shareholding employee. The abnormal resignation of employees includes:(1) leaving the company without going through the resignation procedures;(2) engaging in similar competitive business with the company during or after leaving the company;(3) violating laws and regulations and company rules and regulations, the company terminates its labor contract according to law;(4) causing great economic losses to the company due to fault;(5) The shareholding employees have other violations stipulated in the labor contract. If an employee involved in a shareholding withdraws due to an abnormal separation, his shareholding must be withdrawn in full at one time when the abnormal separation situation is met. The exit price is not higher than the original purchase price. Three-strong exit operation process and practical dilemma solution (I) Force Exit Process 1, no responsibility forced exit process (1) No liability forced exit trigger event occurs. (2) Application or notice Depending on the triggering event, the shareholding employee shall submit a written application to the equity management institution or the equity management institution shall issue a notice of compulsory withdrawal of the equity ex officio. (3) Submission of materials For different situations of compulsory withdrawal without responsibility, the shareholding employee or the relevant entity shall submit different materials for withdrawal within a certain period of time, such as: if the shareholding employee resigns: a resignation letter, a resignation certificate and other documents shall be submitted to the shareholding management agency; If the shareholding employee dies or is declared dead: the successor or the person entrusted by the successor shall submit the death certificate or legal document and cooperate with the relevant formalities; If the shareholding employee needs to forcibly divide the property for personal reasons: if the shareholding employee needs to forcibly divide the personal property due to litigation, divorce and other reasons, relevant legal documents and agreements shall be submitted; Other circumstances in which the labor contract is terminated not due to the fault of the shareholding employee: submit the corresponding materials according to the specific circumstances. (4) Approval by the equity management agency (5) Determination of transferee shareholders and price (6) Complete the internal process (7) Sign the equity transfer agreement (including the time of payment of the transfer, the method of payment, etc.) and other agreements that need to be signed. 2. Responsible compulsory withdrawal process (1) The occurrence of a responsible mandatory withdrawal trigger event. (2) Notify and inform them of their obligation to cooperate When a responsible forced exit situation is triggered, the equity management agency shall issue a notice to the employee, which shall state the reasons for the employee's exit, the materials it should submit, and the work to be completed with the company. Depending on the circumstances of the withdrawal, the person who needs to withdraw is required to prepare the appropriate materials to submit to the company. (3) Implementation of the equity exit price in accordance with the provisions of the employee shareholding scheme (4) Complete the internal process Solving the Practical Dilemma of (II) Forced Exit 1, employee shareholding mandatory withdrawal from the validity of the articles of association provisions. At present, the policy of mandatory withdrawal of employee stock ownership is relatively general. Therefore, under the premise of not violating the "Company Law" and other laws and regulations, it is mainly based on the company's articles of association and the employee stock ownership plan formulated when establishing the employee stock ownership plan. The validity of the articles of association is usually based on the principle of not easily denying the validity of the articles of association in order to maintain the validity of the articles of association and the stability of the company's operation. When the formal elements of the charter are available, practice tends to affirm the validity of the employee's withdrawal clause. 2. Equity adjustment under special circumstances (no one takes over the equity, state-owned shareholders, non-state-owned shareholders and qualified employees inside and outside the platform are unwilling to accept or do not meet the requirements) If the employee's equity is forced to withdraw and the unqualified employee purchases, the employee shareholding management committee shall adjust it according to the actual situation until the company's registered capital is reduced. The methods of adjustment available to the Shareholding Management Committee are: (1) The nominee holding entity that plans to reserve equity is temporarily acquired for subsequent incentives; (2) Giving the platform a share repurchase function, whereby the shareholding platform buys back the shares, and the platform may use the repurchased shares as reserved shares for future incentives for employees; (3) Appropriate adjustment of employee shareholding conditions (e. g. relaxation of conditions) to allow employees who are willing to buy to buy; (4) Whether the state-owned shareholders and non-state-owned shareholders of the target enterprise are willing to buy, and if they still do not take over the main body, the capital will be reduced. Four Conclusion Most of the enterprises that adopt employee stock ownership focus on the entry of employee stock ownership in the early stage, but relatively ignore the design of the compulsory exit mechanism of employee stock ownership, which leads to the non-standard and unsmooth of the compulsory exit link in practice. Enterprises need to establish a more stable and objective mandatory exit mechanism in the employee stock ownership system to ensure the smooth progress of the mandatory exit of employee stock ownership and to ensure the full play of the advantages of the employee stock ownership policy of state-owned enterprises.
2021-12-01
30
2021-11
In recent years, the phenomenon of well-known artists breaking the law and losing morality has repeatedly appeared in the newspapers, which has aroused widespread concern from all walks of life. Since 2014, the relevant competent departments of the state have issued a number of "ugliness restriction orders", aiming to curb the anomie behavior of artists, so as to make up for the lack of relevant legislation in the field of entertainment in China. In addition to the "rigid" system of "heteronomy" and "flexible" self-discipline measures, the author believes that from the perspective of "common law", we can try to construct and improve the "third norm", give full play to its special effect of "combining strength and softness", and help curb artists' anomie behavior. 1. what is the "third norm"? According to the author's opinion, the expression of "the third norm" was first put forward by Ms. Xu Xun, a well-known media law expert in China. She believes that the law is open, stable and strongly binding, but it is generally not focused on a certain industry, but has universal applicability, so its specific operability is slightly weaker; although professional ethics has varying degrees of operability, But it is basically not mandatory, which reduces the binding force; although policies, disciplines and experience have strong operability and binding force, they do not conform to the principle of the rule of law because of their weak openness, at the same time, its normative value is greatly reduced due to its instability. She proposed that the advantages of the above various normative forms can be absorbed, summarized and recombined to produce an open, industry consensus, clear content, relatively stable, written expression, strong operability and certain mandatory The industry standard can be called "the third norm" or "industry regulation". The "third specification" mentioned in this article is different from the general "industry standard". The latter is a general business standard for a specific field formulated and issued by industry associations or other competent departments according to the relevant specifications of the National Standardization Committee. The purpose is to standardize and unify the business without direct punitive content for violators. For example, the "Performance Ticketing System Service and Technical Specification" (WH/T 93-2021) issued by the Ministry of Culture and Tourism on July 19, 2021 and implemented on August 19, stipulates the technical requirements, functions, server management, communication protocols and data formats of interfaces such as the performance ticketing management system and ticketing sales system, and puts forward basic requirements for the data collection interface of performance ticketing data, it does not involve punitive provisions that violate the industry standards. China's entertainment industry pays more attention to the construction of general industry standards. According to the statistics of the "industry standard" part of the government information disclosure of the Ministry of culture and tourism, as of November 22, 2021, a total of 127 national level industry standards have been established, but there is no "third specification" in a complete sense ". 2. the "third norm" in the "measures for the self-discipline management of performers in the performance industry (for Trial Implementation)" On February 5, 2021, the China Performance Industry Association (hereinafter referred to as the "China Performance Association") issued the "Administrative Measures for the Self-discipline of Performers in the Performance Industry (Trial)" (hereinafter referred to as the "Administrative Measures"), which will be implemented from March 1. Article 1 of the "Administrative Measures" clearly stated the purpose of regulating the professional behavior of artists, that is, "in order to continuously improve the professional quality of entertainers in the performance industry (hereinafter referred to as'entertainers'), regulate the professional behavior of entertainers, and strengthen the self-discipline management of entertainers. Establish a good professional image of entertainers and promote the healthy development of the performance industry". The content of Article 1 also shows that the nature of the "Administrative Measures" is a "self-discipline" norm, which is another important measure for our country to curb artists' anomie behavior from the perspective of self-discipline. It is worth noting that although the "Administrative Measures" belong to self-discipline norms as a whole, there are also some mandatory norms, especially punitive measures, which can be classified as the "third norm. For example, Article 5 of the "Administrative Measures" stipulates that if an entertainer violates the practice norms, the China Performance Industry Association shall implement self-discipline and disciplinary measures within the scope of its practice in accordance with these Measures. Article 6 also stipulates the basic principles for the implementation of self-discipline and disciplinary measures, that is, the implementation of self-discipline and disciplinary measures for entertainers who violate the norms of practice shall follow the principles of objectivity, impartiality, openness and transparency, fairness and prudence, adhere to the combination of education and punishment, adapt the circumstances of violations to the disciplinary measures, and carry out work in accordance with the rules and regulations on the basis of facts. The second chapter of the "Administrative Measures" "Practice Standards" expresses the "should be" and "do not do" of entertainers from both positive and negative aspects. In view of the fact that the "do not do" behavior is closely related to the artist's anomie behavior and is the "Administrative Measures" The applicable behavior objects of disciplinary measures need to be analyzed. Article 8 of the "Administrative Measures" stipulates 15 kinds of "do not do" behaviors, mainly illegal behaviors, supplemented by unethical behaviors; while listing typical behaviors, it is also supplemented by unethical and illegal "bottom-up" clauses. Strong coverage. From the perspective of the two more representative "bottom-up" clauses, there is no simple "one size fits all" approach, but it is screened according to the situation. For example, item 14 of Article 8, "other circumstances that violate ethics or social public order and good customs and cause serious adverse social impact", especially emphasizes the condition of "causing serious adverse social impact"; Item 15, "other circumstances expressly prohibited by laws and administrative regulations", emphasizes the hierarchy of "laws and administrative regulations" and the two key elements of "express prohibition. These two provisions also show that we should adhere to the principle of examination when determining the "do not do" behavior in the "management measures", so as to avoid arbitrarily expanding the "anomie behavior. The "Administrative Measures" established a "moral construction committee" composed of relevant personnel inside and outside the industry, which enhanced the credibility of disciplinary measures. Article 15 of the "Administrative Measures" stipulates four disciplinary measures that can be taken, including "conducting criticism and education", "disqualification of participating in various related evaluations, commendations, rewards, and subsidies in the industry", and "according to the severity and severity of the circumstances of the entertainer's violation of the professional norms. Degree of harm, the implementation of 1 year, 3 years, 5 years and permanent and other different degrees of industry boycott" "in cooperation with other industry organizations to implement cross industry joint punishment". The first two are "soft" measures, while the latter two are "hard" measures. The four measures can be implemented separately or in combination. The "hard" measures against the behavior of "do not do" are mandatory and belong to the "third norm" in a sense, which not only restricts the performance rights of anomie artists, but also restricts the relevant rights of publicity and promotion, which plays an irreplaceable role in curbing the anomie behavior of artists. On August 15, 2021, the China Performing Arts Association issued the first "Disciplinary Announcement" after the implementation of the "Administrative Measures": "This Association will morally reprimand the improper behavior of actor Zhang Zhehan in visiting the Yasukuni Shrine, and in accordance with the" Performing Arts in the Performance Industry "According to the provisions of the Administrative Measures, member units are required to boycott their practice." On October 22, the China Actors Association once again issued a "disciplinary notice" to boycott Li Yundi, who committed illegal prostitution. In addition, Articles 17 and 18 of the "Administrative Measures" also specifically stipulate the disciplinary procedures, especially granting the rights of anomie artists to defend and return requests, forming a relatively complete disciplinary and relief procedure. On the whole, although the "Administrative Measures" belongs to the category of self-discipline norms as a whole, it has added a "third norm" that is mandatory for punishment, and the disciplinary procedures are fair and reasonable, and the disciplinary measures are in line with the principle of proportionality, and there is no collective resistance in general industries. The problem of violating the anti-monopoly law. 3. extensive construction and improvement of the industry-wide "third norms" The "Administrative Measures" of the China Performing Arts Association is only applicable to specific artists, that is, "performers engaged in music, drama, dance, folk art, acrobatics and other forms of live theatrical performances in China", although its applicable "scope of employment" Relatively broad, but still cannot cover all artists. In addition to the China Performance Association, there are other industry associations related to artists in China. In order to implement the requirements of the "Notice on Carrying out Comprehensive Management Work in the Cultural and Entertainment Field" issued by the Central Propaganda Department in September 2021, and give full play to the role of industry punishment, the "third norm" for all artists' behaviors should be drafted and implemented as soon as possible in the entire industry. Make up for the lack of legislation in the cultural and entertainment field, and give full play to its advantages of strong pertinence, good operability, stability and compulsion, as soon as possible to effectively curb the high incidence of illegal artists such as misconduct.
2021-11-30
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
