Articles by "China Law"

 

Transfer of Case Without Jurisdiction

Introduction: When a court without jurisdiction is transferred, it will usually be directly transferred to the people's court of the jurisdiction, and all the cases will be transferred at the same time. However, if the accepting court finds that it should not be under the jurisdiction of its own court, it should generally report to the higher-level people. The court shall assign jurisdiction and shall not re-enter the place to transfer it.


1. How to transfer to a court without jurisdiction?

According to Article 36 of the Civil Procedure Law, “If the people’s court finds that the case is not within the jurisdiction of this court, it shall be transferred to a people’s court with jurisdiction, and the transferred people’s court shall accept the case. 

If the transferred case does not fall under the jurisdiction of the court in accordance with the regulations, it shall be reported to the people's court at a higher level to designate jurisdiction and shall not be transferred by itself.” According to this provision, the application of transfer jurisdiction shall meet the following conditions:

 

(1) The people's court has accepted the case

If a case that has not yet been accepted is not under the jurisdiction of this court after review, there is no transfer to jurisdiction, and the parties should be notified to bring a suit in a people's court with jurisdiction.

 

(2) The people's court that accepted the case has no jurisdiction over the case

 People's courts that have jurisdiction in accordance with the law have the right to exercise judicial power, so people's courts without jurisdiction have no right to hear cases.

 

(3) The people's court that accepts the transferred case has jurisdiction in accordance with the law

This is a requirement for the court to transfer the case, that is, it must not be transferred at will, and can only be transferred to a people's court with jurisdiction. in

 

While the above three conditions are met, it is necessary to correctly understand the meaning of "no more self-transfer" stipulated in this article in order to correctly understand and apply transfer jurisdiction. 

The so-called no longer self-transfer refers to the decision made by the people's court to transfer the case, which is binding on the people's court that accepts the transferred case. That is, the court of the transferred case must accept it, and shall not transfer it by itself for any reason. 

If the people’s court to which the case is transferred believes that the court does not have jurisdiction in accordance with the law, it shall report to the people’s court at a higher level to designate jurisdiction. 

Such a provision can not only prevent courts from prevaricating or competing for jurisdiction, but also prevent delays in litigation and timely protect the legitimate rights and interests of the parties.

 

According to the "Opinions", after the case is accepted, the jurisdiction of the people's court that is sued shall not be affected by the change of the party's domicile or habitual residence. After the people's court with jurisdiction accepts the case, it shall not transfer the case to the people's court with jurisdiction after the change on the grounds of administrative area change. Appeals after judgment and cases brought for trial in accordance with the trial supervision procedures shall be tried by the people's court at the higher level of the original trial people's court. Cases remanded by the people's court of second instance for retrial or retrial ordered by the people's court at a higher level shall be retrial or retrial by the people's court of the original trial. 

In practice, if a people's court without jurisdiction has already conducted a substantive trial of the case, and the party has not filed an objection to jurisdiction, it can be deemed that the party has waived the right to object, and there is no need to transfer the jurisdiction, and the court that accepted the case will continue the trial.

 

China Court Jurisdiction

In summary, the transfer of jurisdiction is generally directly transferred from the court that does not have jurisdiction to the court of the jurisdiction, but it must also meet the conditions stipulated by the law, and the transfer will also be handled in accordance with the procedures prescribed by the court. , And the court that accepts it should also handle the case within the specified time, so that the legal rights of the victims can be protected in a timely manner.

 

 

Full Compilation of Standards for Conviction and Sentencing at the Filing Stage-False Litigation Crime

Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of False Litigation

 

(Adopted at the 1732th meeting of the Judicial Committee of the Supreme People’s Court on January 25, 2018, and adopted at the second meeting of the 13th Procuratorial Committee of the Supreme People’s Procuratorate on June 13, 2018, and implemented on October 1, 2018)

 

Law Interpretation (2018) No. 17

In order to punish false litigation and criminal activities in accordance with the law, maintain judicial order, and protect the legitimate rights and interests of citizens, legal persons and other organizations, according to the "Criminal Law of the People's Republic of China", "Criminal Procedure Law of the People's Republic of China" and "Civil Procedure Law of the People's Republic of China" and other legal provisions, several issues concerning the application of law in handling such criminal cases are explained as follows:

  

Article 1 

Anyone who uses methods such as forging evidence or false statements to commit one of the following acts, fabricating civil legal relationships, fabricating civil disputes, and filing a civil lawsuit in the people’s court shall be deemed as Article 307 of the Criminal Law, Paragraph 1 The stipulated “initiate a civil lawsuit based on fabricated facts”:

 

(1) Maliciously colluding with one of the spouses to fabricate joint debts between the husband and wife

 (2) Maliciously colluding with others, fabricating creditor's rights and debt relations and debt settlement agreements

 (3) With the legal representatives, directors, supervisors, and supervisors of companies and enterprises managers or other management personnel maliciously collude to fabricate the debts or guarantee obligations of the company or enterprise

(4) Fabricate intellectual property infringement relationships or unfair competition relationships

(5) Declare fabricated claims during the trial of a bankruptcy case

(6) ) Maliciously colluding with the person subject to enforcement, fabricating creditor's rights, or the priority or security of property rights to be sealed, seized, or frozen

(7) Unilateral or maliciously colluding with others, fabricating civil legal relationships such as identity, contract, tort, inheritance Other behaviors.

 

To conceal the fact that the debts have been fully paid off, bring a civil lawsuit to the people’s court, and demand others to perform the debt, the argument is that the civil lawsuit is filed with fabricated facts.

 

Applying to the people’s court to enforce an arbitration award or notarized creditor’s right document made based on fabricated facts, or using fabricated facts in the process of civil execution to object to the subject of execution, or to apply for participation in the distribution of the execution of property, belongs to Article 307 of the Criminal Law 1. 

"Civil lawsuits are initiated on the basis of fabricated facts" as stipulated in the first paragraph.

 

Article 2

 Where a civil lawsuit is filed based on fabricated facts in any of the following circumstances, it shall be deemed as “hindering the judicial order or seriously infringing the lawful rights and interests of others” as stipulated in the first paragraph of Article 307 of the Criminal Law:

 

(1) Causing the people’s court to take property preservation or behavior preservation measures based on fabricated facts

(2) Causing the people’s court to hold trial sessions and interfering with normal judicial activities

(3) Causing the people’s court to issue judgment documents and make property based on fabricated facts Distribution plan, or filing a case to execute an arbitration award or notarized creditor’s right document made based on fabricated facts

 (4) Civil litigation has been filed with fabricated facts many times

 (5) Civil action has been taken because of fabricated facts Compulsory measures or criminal prosecution

 (6) Other circumstances that hinder judicial order or seriously infringe the lawful rights and interests of others.

 

Article 3

 Where a civil lawsuit is filed based on fabricated facts and one of the following circumstances shall be deemed to be "serious circumstances" as stipulated in the first paragraph of Article 307 of the Criminal Law:

 

Standards for Conviction and Sentencing at the Filing Stage-False Litigation Crime

(1) There is a situation in Item 1 of Article 2 of this Interpretation, causing economic losses of more than one million yuan

 (2) There is one of the situations in Items 2 to 4 of Article 2 of this Interpretation, which seriously interferes with normal judicial activities Or seriously impair judicial credibility

(3) Cause the obligor to automatically perform the property payment obligations determined in the effective judgment document or the people's court enforces property rights and interests, and the amount reaches more than one million yuan

(4) Causes the debt of others to be unfulfilled, the amount Reaching one million yuan or more

(5) Illegal possession of another person’s property in the amount of more than 100,000 yuan

(6) causing others to be taken criminal detention or arrest for the execution of a judgment or ruling made by the people’s court based on fabricated facts, or subject to criminal investigation

(7) Other serious circumstances.

 

Article 4

 The act of implementing the first paragraph of Article 307 of the Criminal Law, illegally occupying other people’s property or evading legal debts, constitutes the crime of fraud, embezzlement by office, refusal to execute judgments, convictions, corruption, and other crimes,

 In accordance with the provisions of heavier punishments, convicted and punished severely.

 

Article 5

Judicial personnel who use their powers to jointly perform the first three paragraphs of Article 307 of the Criminal Law with others shall be severely punished. 

At the same time they constitute the crime of abuse of power, the crime of civil violation of the law, execution of judgments, rulings of abuse of power, etc. 

Whoever commits a crime shall be convicted and punished severely in accordance with the provisions of heavier punishment.

 

Article 6

 Litigation agents, witnesses, evaluators and other litigation participants conspire with others to initiate false civil lawsuits, deliberately give false testimony or issue false authentication opinions, and jointly implement the first three paragraphs of Article 307 of the Criminal Law If the crime is convicted and punished in accordance with the provisions of a joint crime. 

If it also constitutes a crime of obstructing testimony, helping to destroy or forging evidence, etc., it shall be convicted and punished in accordance with the more severe punishment.

 

Article 7

 Where the use of forgery of evidence or other means to falsify the facts of the case and defraud people’s court judgment documents constitutes a crime, criminal responsibility shall be investigated in accordance with the provisions of Article 280 and Article 307 of the Criminal Law.

 

Article 8

 Where a unit implements the act in the first paragraph of Article 307 of the Criminal Law, the person in charge and other directly responsible persons shall be convicted and punished in accordance with the conviction and sentencing standards stipulated in this interpretation, and the unit shall be fined.

 

Article 9

 The implementation of the first paragraph of Article 307 of the Criminal Law did not meet the criteria for serious circumstances, the perpetrator was a first offender, and he voluntarily repented during the civil procedure, accepted the decision of the people’s court, actively returned the stolen goods and refunded compensation 

If the circumstances of the crime are considered to be minor, no prosecution or criminal punishment shall be imposed; if it is really necessary to impose a penalty, a lenient punishment may be imposed.

 

Where judicial personnel use their powers to jointly implement the first paragraph of Article 307 of the Criminal Law, the provisions of paragraph one of this article shall not apply to judicial personnel.

 

Article 10

 Criminal cases of false litigation shall be under the jurisdiction of the people's court at the location of the accepting court of false civil litigation or the place where the executing court is located. 

In the case of the fourth paragraph of Article 307 of the Criminal Law, the people's court at a higher level may designate a people's court at a lower level to transfer the case to another people's court for trial.

 

Article 11

 The judgment document mentioned in this interpretation refers to the judgment, ruling, mediation statement, payment order and other documents made by the people's court in accordance with the Civil Procedure Law, Enterprise Bankruptcy Law and other civil laws.

 

Article 12

 This interpretation shall come into effect on October 1, 2018.


Conclusion

What really matter in law is implementation whether it is criminal or civil. This is just a rough idea if not implemented.




 


 

Interpretation of Supreme Law Cases: Buildings without housing ownership certificates can be compensated when they are demolished

For an unlicensed house that has not obtained a house ownership certificate due to historical reasons, it should not be directly identified as an illegal building by the administrative agency without sufficient evidence to prove that the unlicensed house is an illegal building.

 

Who will determine the unit price of compensation?

The administrative agency and the people's court shall determine the unit price of compensation per square meter after comprehensively considering the historical reasons for the failure to register the property rights, the value of the land, the source of the house, and the lowest average transaction price of the surrounding commercial houses for sale when the houses involved were removed.

 

Pan Yumin sued the sub-district office for performance of compensation duties

On July 19, 1995, the Shaling Credit Cooperative in Yuhong District of Shenyang City and the Feixiang Meat Products Factory in Tiexi District of Shenyang City signed a real estate and land transfer agreement.

 The Shaling Credit Cooperative transferred all of its property with a certificate of 1,100 square meters. Land and all facilities in the hospital were transferred to Feixiang Meat Products Factory for a total price of RMB 560,000.

 

On August 3, 1995, Shenyang Feixiang Meat Products Factory was registered and established, the legal representative was Pan Yumin, and the nature of the enterprise was a collective of the town.

 

On August 15, 1995, Shenyang Feixiang Meat Products Factory obtained a house photo with a construction area of ​​1,100 square meters. Pan Yumin stated that the company had not been registered.

 

On March 5, 1998, Shenyang Yumin Meat Products Factory was established, the person in charge is Pan Yumin, and the economic nature is a wholly-owned private enterprise.

 

On July 29, 2003, Shenyang Jinfeng Meat Products Factory, as a land user, obtained a collective land use certificate for industrial use and an area of ​​4,603.76 square meters.

 

On December 25, 2008, the Yuhong District Government issued a land acquisition announcement that Pan Yumin’s case involved houses and land within the scope of acquisition.

 

On July 18, 2011, Shenyang City Yuhong District Urban and Rural Construction Administration, Shenyang City Yuhong District Shaling Sub-district Office, and Shenyang City Management Administrative Law Enforcement Bureau Yuhong Branch jointly made the letter of Shencheng Xing Xingzhilianzhi (2011) 


Demolition Decision within a Time Limit

The Shaling-026 "Demolition Decision within a Time Limit" decided to demolish the ground objects and auxiliary facilities involved in this case within a time limit. 

The reason for the application recorded in the "Approval Form for Mandatory Demolition of Illegal Buildings" is "the expropriation of houses in Shaling Auxiliary City to demolish unlicensed houses".

 

In September 2011, the ground objects involved in this case were forcibly demolished.

On December 27, 2018, the Higher People’s Court of Liaoning Province issued a second-instance judgment, ruling that the People’s Government of Yuhong District, Shenyang City, should pay Pan Yumin RMB 4,840,000 in compensation for housing with a certificate, and RMB 389,465 in compensation for Pan Yumin’s other ground attachments and fruit trees and Pan Yumin.

 Yumin's non-ownership housing compensation was 1,948,292 yuan, and Pan Yumin was paid 1,341,739 yuan for land compensation and interest.

 

Buildings without Housing Ownership Certificates Compensation while Demolition

2020.06.18, the Supreme People’s Court of the People’s Republic of China (2019) Supreme Law Xingshen No. 7904 Administrative Ruling, rejected the retrial application of the retrial applicant by the People’s Government of Yuhong District, Shenyang City, Liaoning Province.

 

Supreme Court opinion: Although the house has no real estate file, it is a historical issue, and it is not improper to obtain compensation for the land involved in the case.

 

There are 3 reasons for the highest determination that the unlicensed houses should be compensated:

First, when Pan Yumin provided the People's Court with evidence such as the "House Photo" and the deed tax certificate, the 1,100-square-meter house involved in the case has no real estate file but is a historical issue, and compensation is based on the licensed house and business house There is nothing wrong.

 

Second, the "Certificate" issued by the sub-district office confirmed that the non-ownership house involved in the case was built in 1976. It was originally an office house of the township people’s government. 

It was also legally purchased by Pan Yumin from the Shaling Credit Cooperative. There was no house ownership certificate. Its historical reasons. If the Hong District Government has not submitted sufficient evidence to prove that it is an illegal building, it should not be considered an illegal building.

 

Third, the land involved in the case belongs to collective construction land, which Pan Yumin legally purchased from Shaling Credit Cooperative in 1995, has obtained a collective land use certificate in accordance with the law, and enjoys the right to possess, use and obtain profits.

 

 

Attachment: Original Judgment Document

 

Supreme People's Court of the People's Republic of China

 

Administrative ruling

 

(2019) Supreme Law Xing Shen No. 7904

 

Applicant for retrial (defendant in first instance, appellant in second instance): People's Government of Yuhong District, Shenyang City, Liaoning Province.

 

Address: No. 37, Huanghai Road, Yuhong District, Shenyang City, Liaoning Province.

 

Legal representative: Wang Qinghai, the head of the district people’s government.

 

Entrusted litigation agent: Tang Ning, lawyer of Liaoning Tongfang Law Firm.

 

Respondent (plaintiff in the first instance, appellant in the second instance): Pan Yumin, male, born on May 20, 1963, Han nationality, living in Liaoning Province.

 

Appellee in the second instance (defendant in the first instance): Shaling Sub-district Office, Yuhong District, Shenyang City, Liaoning Province.

 

Domicile: Shaling Village, Shaling Street, Yuhong District, Shenyang City, Liaoning Province.

 

Legal representative: Jin Xiaowen, director of the office.

 

The retrial applicant, Yuhong District People’s Government of Shenyang City, Liaoning Province (hereinafter referred to as Yuhong District Government), has performed compensation duties due to Pan Yumin suing him and Shaling Sub-district Office of Yuhong District, Shenyang City, Liaoning Province (hereinafter referred to as Shaling Sub-district Office) In one case, the Liaoning Provincial Higher People's Court (2018) Liao Xing Zhong No. 1519 Administrative Judgment was dissatisfied and applied to this court for a retrial. 

This court formed a collegial panel in accordance with the law and reviewed the case, which has now been concluded.

 

The Yuhong District Government applied to this court for retrial on the grounds that the court judged it to pay Pan Yumin's land compensation fees, compensate for the illegally constructed houses involved in the case, and compensate the houses with property rights certificates involved in the case at 4,400 yuan per square meter without legal basis, etc. 

 Request: Revocation of the second-instance judgment; dismissed Pan Yumin’s request for compensation for land compensation and illegally built houses, and changed the judgment to compensate Pan Yumin for a house of 1,100 square meters according to the compensation standard for unlicensed houses.

 

This court believes that the focus of the dispute in this case is the compensation of 1,100 square meters of property certificated houses, non-ownership houses and land. 

First of all, the house with the title certificate was originally the office building of the township people's government, and later it was the business place of the Shaling Credit Cooperative (hereinafter referred to as the Shaling Credit Cooperative) in Yuhong District, Shenyang City.

 After Pan Yumin legally purchased a house with a title certificate from the Shaling Credit Cooperative, it was used as a meat processing plant business premises and workshop. 

In the case that Pan Yumin provided the People’s Court with evidence such as the "House Photo" and the deed tax certificate, the 1,100-square-meter house involved in the case had no real estate file, but it was a historical issue. 

There was no compensation based on the licensed house and business house. improper.

 After field visits and price inquiry, the original court of trial determined the compensation unit price based on 80% of the lowest average transaction price of the surrounding commercial houses for sale when the houses involved were demolished in 2011, which was not inappropriate. 

Therefore, the Hong District Government’s claim that the house with title certificate should be unlicensed due to the lack of real estate files, and that the unit price of house compensation determined by the original trial court has no factual and legal basis is not supported.

 

Secondly, the court of second instance determined that the "Certificate" issued by the Shaling Sub-district Office confirmed that the non-proprietary house involved in the case was built in 1976. It was originally an office building for the township people's government and was also legally purchased by Pan Yumin from the Shaling Credit Cooperative. 

The housing title certificate has its historical reasons. If the Hong District Government has not submitted sufficient evidence to prove that it is an illegal building, it should not be considered an illegal building. 

The court of second instance, after comprehensively considering the historical reasons for the failure to register the property rights, the value of the land, the use of the house, and the lowest average transaction price of the surrounding commercial houses when the houses involved were demolished in 2011, determined the compensation unit price of 2,750 yuan per square meter and Nothing wrong.

 Therefore, the Hong District Government’s claim that the non-proprietary houses involved in the case should not be compensated for illegal constructions is not supported.

 

Finally, the land involved in the case belongs to collective construction land, which Pan Yumin legally purchased from Shaling Credit Cooperative in 1995, has obtained a collective land use certificate according to law, and enjoys the right to possess, use, and obtain income. 

Accordingly, the court of second instance found that Pan Yumin had the right to obtain compensation for the land involved in the case. According to the relevant land price guarantee standards of Shenyang City, Liaoning Province, the court of second instance considered that the land value under the item already included in the compensation for houses with title certificates and non-ownership houses should deduct the corresponding area, and finally determined that the area of ​​the land involved in the case should be 2,795.29 square meters. 

The compensation standard is 480 yuan per square meter. Therefore, the Hong District Government’s claim of the court of second instance that the payment of land compensation to Pan Yumin was an error in the application of law is not supported.

 

In summary, the retrial application of the Yuhong District Government does not comply with the circumstances stipulated in Article 91 of the Administrative Procedure Law of the People’s Republic of China.

 In accordance with the "Interpretation of the Supreme People's Court on the Application of the "Administrative Procedure Law of the People's Republic of China"" Article 116, paragraph 2, the ruling is as follows:

 

The retrial application of the People's Government of Yuhong District, Shenyang City, Liaoning Province, was rejected.

 

Presiding judge    Liang Fengyun

 

Judge    Zhang  yan

 

Judge    Zhang   Sword

 

June 18, 2020

 

Assistant Judge Tao Zou

 

 

Li Guoqing advances and retreats and touches the Fan, he wants equity or his son rides a tiger

The plot of Dangdang's annual grievance drama "Celebrating the Year of Yu" has become more subtle because of the participation of Li Guoqing and Yu Yu's sons. The focus of the people who eat melon is: whether the cause of this dispute was Li Guoqing's breach of contract and not admitting it, or Yu Yu was born out of nothing , To occupy Li Guoqing's equity?

 

On the evening of August 9, Li Guoqing posted on Weibo saying that he and Yu Yu were both defendants and that the plaintiff was his own son. His son asked the court to confirm the validity of the agreement for Li Guoqing and Yu Yu to hold Dangdang shares on his behalf.

 It is said that the highest to tomorrow, the closest relatives to the husband and wife, after the incident of Li Guoqing "snatching the official seal", there is no need to mention any relationship between husband and wife with Yu Yu. Now being sued by his only son, Li Guoqing's words on Weibo reveal a kind of tolerance of "father's love like a mountain" inside and outside.

 

However, Li Guoqing still understands in his heart that his son is now the key to control in the future. After all, the adult world is the mutual catalysis of emotions and interests. Otherwise, Li Guoqing will not add another Weibo saying on the night of August 9.

 "My appeals all the time are actually very simple: "The court ruled that I divorce and divide the common property." It seems that the years are quiet and lightly mentioned my reasonable demands, but in fact I want to take a bite of the meat from Dangdang.

 

After all, it can’t get around Dangdang’s equity distribution. Is this a farce of "fathers are not filial to children", or is Li Guoqing’s drunkard’s intention not to drink and intends to disrupt Dangdang’s equity distribution?

 

After Dangdang was delisted from the US privatization in September 2016, it no longer has public shareholders, but Yu Yu, Li Guoqing, his sons and management shareholders. Regarding the overall equity of Dangdang domestic and foreign companies, Li Guoqing and Yu Yu once had a "three-to-seven" marriage agreement.

 

Article 19 of the "Marriage Law" stipulates:

"A husband and wife may agree that the property acquired during the marriage relationship and the pre-marital property shall be owned, jointly owned or partly owned separately or partly jointly. The agreement should be in writing. 

There is no agreement or the agreement is not clear. The provisions of Article 17 and Article 18 of this Law shall apply. The agreement of the husband and wife on the property acquired during the marriage relationship and the pre-marital property shall be binding on both parties"

 

The "Reference Opinions of the First Civil Division of Beijing Higher People's Court on Several Difficult Issues in Trial of Marriage Dispute Cases (2016)" stipulates: "

There is no written property agreement between husband and wife, but both parties agree or have evidence sufficient to show that there is a property agreement If it is agreed, the property agreement shall be determined to be established."

 

 

Sorting out recent media reports, regarding the history of Dangdang's "37 open" agreement, it is probably like this:

In September 2016, Yu Yu and Li Guoqing reached an agreement on the ownership ratio of Dangdang's overall equity, and the three of them agreed with their sons that Li Guoqing and Yu Yu would have a "three seven", and the two would take out a total of 20% of the equity in the same proportion. 

To the son. According to this plan, within the family, Yu Yu accounted for 56%, Li Guoqing 24%, and his son 20%. 

And because the family’s equity in Dangdang as a whole is 93.26%, the three people each have 52.23%, 22.38%, and 18.65% in Dangdang’s overall equity. 

So far, Yu Yu, Li Guoqing and their sons have effectively completed the division of ownership of Dangdang's overall equity.

 

At that time, Li Guoqing should have agreed so willingly. Such an important property distribution is naturally unproven, so Li Guoqing and Yu Yu also signed an equity gift agreement, a debt assumption agreement, an equity transfer agreement and other documents that agreed on the ownership of the shares, and registered the equity change accordingly.

 

Article 11 of the "Contract Law" 

The written form refers to the form of contract, letter and data message (including telegram, telex, fax, electronic data interchange and e-mail) that can tangibly express the content contained in it. 

"If the agreement between Li Guoqing and Yu Yu regarding the ownership of Dangdang shares is tangibly recorded in a written agreement, etc., and the content contained in it can be clearly expressed and conforms to the legally prescribed "written form", then this should be a matter for both parties. Binding.

 

In 2018, Dangdang’s shareholders’ rights and interests were transferred from abroad to China. All parties agreed on the proportion of ownership of Dangdang as a whole, and signed an equity transfer agreement for the domestic company.

 Dangdang Kewen’s industrial and commercial registered equity was also adjusted accordingly "The agreed attribution is the same (64.20% for Yu Yu and 27.51% for Li Guoqing).

 


Another important node in the story of "37 open" also appeared in 2018, which was the HNA transaction involving the adjustment of Dangdang's equity structure. It is precisely because of the adjustment of the equity structure that the overall value of Beijing Dangdang is currently concentrated on Dangdang Kewen.

The acquisition plan and price design in the HNA transaction also clearly reflect the respective attribution agreements between Li Guoqing and Yu Yu regarding the "San Qi Kai".

 

However, given that his son is a foreign national, in Dangdang Kewen, his share of this share is proportionally allocated to all other shareholders for holding. Probably Li Guoqing himself would not have thought that his son's equity holding would become a time bomb for the division of equity in the divorce between himself and Yu Yu.

 

Let’s deduce a wave of Li Guoqing’s abacus

The "Marriage Law of the People's Republic of China" stipulates that the joint property of the husband and wife shall be jointly owned by the husband and wife during the marriage period is already a "universal clause", and many people want to rely on this to make another stroke when divorce. 

 According to Li Guoqiang's own statement on Weibo, a divorce litigation is the best strategy to fight for Dangdang's equity. In Dangdang's first major drama this year, "Snatching the official seal", Li Guoqing claimed that 91.71% of the shares held by himself and Yu Yu were joint property of husband and wife. So how much will Li Guoqing get after the divorce? 45.86%.

Law Issue Dangdang's annual grievance drama "Celebrating the Year of Yu"


This equity ratio is actually very dangerous. Everyone who studies the law understands that in the "Company Law of the People's Republic of China", except for the magic number of 2/3, 50% is a ten thousand essential oil.

 If the company’s own articles of association are not otherwise agreed, then more than half of the shareholders or more than half of the equity can determine many important matters of the company.

When grabbing the official seal, Li Guoqing said that he had the support of minority shareholders. If it was true, Li Guoqing could easily start from this 45.86% ratio to become a major shareholder of Dangdang.

 

Li Guoqing used the divorce as an excuse to demand half of the total equity under the industrial and commercial registration of Kewen, in an attempt to deceive the people who eat melons and cover up the true ownership of rights and interests through the simple and crude view of "business registration + the principle of equal sharing of husband and wife property. 

Judging from the information currently disclosed, Li Guoqing's proposition not only ignores and overturns the real equity ownership agreement, but also suspects that the interests of Yu Yu and his son are encroached on. 

This is a good calculation. At this time, the son's prosecution is equivalent to setting up a roadblock for Li Guoqing, and the outline of the facts of the case will be clearer.

 

There is a high probability that the court will support the litigation claims of Li Guoqing and Yu Yu's son, and the control of Dangdang.com that Li Guoqing expected will not be realized.

 

Dangdang’s statement in the face of this other variable can also see Yu Yu’s attitude to a large extent: respect the autonomy of the parties’ will, and believe that the law respects honesty and credibility, and will continue to use legal weapons to defend the legitimate rights and interests of the company and all shareholders to protect the normal operation of the company.

 As a legal worker, few people strongly support Dangdang's statement that gentlemen love money and get the right way. Wealth is the foundation of material life, the law is the bottom line of behavior, and everyone should have the spirit of contract.

 

Finally, let us skip the scope of law and think about it from a macro perspective. Will there be an absolute beneficiary or victim in this matter? Hard to say. As the only son of Li Guoqing and Yu Yu, this step is probably extremely difficult.

 If Li Guoqing, as a father, wants to show his true paternal love, should he consider honestly and trustworthy abiding by the original shareholding agreement between the three and giving his son a life without entanglement?

 


 

The resignation of personal trainers in the fitness club leads to disputes, but the annual card fee and course fee cannot be refunded?

After applying for the annual card, paying the dues and class hours, the personal trainer suddenly left, and the service courses he should have been delayed repeatedly. The fitness club actually responded "If you don't continue to pay, you will interrupt the course"? After repeated negotiations to refund the fee, the party concerned brought the fitness club to the court, demanding that the contract be terminated and the corresponding fee refunded. The Haidian Court heard the case a few days ago.

 

1. Private education courses were repeatedly interrupted, and negotiations failed to sue to court

Ms. Zhang signed a fitness service contract with a fitness club. After that, Ms. Zhang signed a personal trainer agreement, and the designated personal trainer provided planned courses.

 

 

TV series Thirty Only stills

At the end of September 2018, Ms. Zhang’s personal trainer suddenly left, and the fitness club did not explain to Ms. Zhang. In November 2018, the front desk of the fitness club replied that the personal trainer could not be contacted, and delayed the time on this ground.

 

After many questions, Ms. Zhang found Lu, the legal representative of the fitness club, and negotiated a refund with her. Lu immediately agreed to refund the membership fee and personal education fee.

 

 Ms. Zhang and Lu Mou signed a supplementary agreement, agreeing that Lu Mou is willing to compensate for 5 private lessons. 

If you regret or let someone else take the lesson, you should refund immediately.

If there are uncompleted courses, the fitness club should Refund the annual membership fee and the remaining private lessons.

 

However, Ms. Zhang's courses were still interrupted for various reasons such as requesting to continue to pay fees, and other coaches were also taking the place during the course.

 

 2. The fitness club constitutes a breach of contract, member refunds to support

The court held that this case should be a service contract dispute. First, the fitness service contract signed between Ms. Zhang and the fitness club, the personal trainer agreement, and the supplementary agreement between Lu and Ms. Zhang are all true expressions of intent between the parties, and the content is legal and effective, and does not violate the law.

The mandatory provisions of laws and regulations should be legal and effective.

 

According to the provisions of Article 8 of the Contract Law, a legally established contract is binding on all parties to the contract. The parties shall perform as agreed.

 

Second, the two parties had a dispute regarding the fact that Ms. Zhang failed to attend the course in accordance with the contract. The fitness club's claim was due to Ms. Zhang's personal reasons, but she failed to provide evidence and the court rejected it. In the end, the court ruled that the fitness club would refund Ms. Zhang's annual card fee and corresponding class hours.

 

 Contract Law of the People's Republic of China

Article 8. Contracts established in accordance with the law are legally binding on the parties. The parties shall perform their obligations in accordance with the agreement and shall not modify or terminate the contract without authorization. Contracts established in accordance with the law are protected by law.

 

Article 94 In any of the following circumstances, the parties may terminate the contract:

 

(1) The purpose of the contract cannot be achieved due to force majeure.

 

(2) Before the expiration of the performance period, one of the parties clearly stated or indicated by its own behavior that it would not perform the main debt.

 

(3) One of the parties delays the performance of the main debt, and fails to perform it within a reasonable time limit after being urged.

 

(4) One of the parties delays in the performance of debts or has other breaches of the contract, which makes it impossible to achieve the contract purpose.

 

(5) Other circumstances stipulated by law.

 

3. Personal service contract: focus on consumer experience

In addition, in practice, fitness clubs often defend themselves on the form of "no refunds once the private training courses are sold." 

According to judicial practice, the situation of "personal trainer leaving suddenly" can be determined as a statutory cancellation of "the purpose of the contract cannot be achieved".

Chinese Law and Justice


The fitness service contract has a certain personal nature, and the purpose of the contract is to provide specific personal services, and the quality of the personal training course is closely related to the professional level of the personal training and its own quality.

 

If you are unwilling to accept the replacement of other coaches, because the service contract is not suitable for compulsory performance, the parties can terminate the contract based on this request.

 

Article 26 of the Law of the People’s Republic of China on the Protection of Consumer Rights and Interests: 

Where operators use standard terms in their business activities, they shall draw consumers’ attention to the quantity and quality of goods or services, prices or fees, and performance periods and methods in a prominent way.

 Safety precautions and risk warnings, after-sales service, civil liability, etc., which are of major interest to consumers, shall be explained in accordance with the requirements of consumers. 

Operators shall not use standard clauses, notices, declarations, store notices, etc., to exclude or restrict consumer rights, reduce or exempt operators from responsibilities, and aggravate consumer responsibilities that are unfair and unreasonable to consumers, and must not use formats Terms and use technical means to force transactions. 

Format clauses, notices, declarations, shop notices, etc. that contain the contents listed in the preceding paragraph shall be invalid.

 




Can a civil lawsuit be filed after the criminal judgment is recovered or compensation is refunded?

In the actual handling of criminal and civil cases, there are many difficult and controversial issues. But in general terms, there are two basic issues: one is how to grasp the operating sequence of criminal procedures and civil procedures, and whether the two are the first and the second, and whether they can go hand in hand. The second is the issue of res judicata after a criminal or civil judgment is made, that is, to proceed first The effectiveness of the criminal judgment or civil judgment on the civil part or the criminal part.

 

 

1. On the issue of criminal and civil procedures

A basic rule of criminal and civil cases is that criminal cases and civil cases involving the ‘same fact’ should be resolved through criminal proceedings in principle. "

 

Specifically, from the perspective of the subject of the conduct, the "same fact" refers to the conduct performed by the same subject, and the conduct performed by different subjects does not belong to the same fact; from the perspective of legal relationship, the victim of a criminal case is also a civil law 

The counterparty of the relationship can be identified as the "same fact"; from the perspective of essential facts, only the facts that are disputed in a civil case are also essential facts of a criminal offense.

 

The above judgment criteria are relatively clear and easy to operate. But at the same time, it should be noted that according to the above-mentioned standards, the scope of "criminal-civilian intersection" cases is relatively narrow. 

From a practical point of view, how to grasp the scope of criminal-civil cases is actually a problem with large differences of understanding, and this is a crucial issue in the reasonable construction of a mechanism for handling criminal-civil cases.

 

Regardless of whether it is law enforcement or case handling or the formulation of judicial documents, it is not appropriate to implement "one size fits all" regardless of circumstances. 

When dealing with criminal and civil cases, we must make clear a basic position, that is, we must choose ideas and mechanisms that are more conducive to protecting the legal rights of the parties and solving the problems more fairly and effectively. 

Rather than being entangled in the judgment of the "same fact", and then hesitating in deciding whether to apply the mechanism of "criminal first and civilians later", it is better to take a stand that better protects the interests of the parties and handle cross-criminal cases based on the principle of seeking truth from facts.

 

Specifically, in accordance with Article 150, paragraph 1, item 5 of the Civil Procedure Law, “this case must be based on the outcome of another case, and if the other case has not been concluded, the trial should be suspended”.

 The time sequence of criminal and civil litigation in inter-civilian cases, and whether there is a dependency relationship between the two, determine the acceptance and trial of criminal and civil litigation:

 

(1) When there is no contradiction between the handling of civil and criminal proceedings caused by criminal and civil cases, and there is no mutual dependence between the two, they can be "concurrently" and proceed separately or in parallel.

 (2) When the civil lawsuit and the criminal lawsuit caused by the criminal-civil intersecting case may conflict, and the proceeding of the civil lawsuit needs to be based on the result of the criminal lawsuit, the civil lawsuit should be “prior to the criminal”.

 (3) When criminal litigation triggered by criminal-civil intersecting cases requires the result of civil litigation as a prerequisite, it should be "first the citizens and then the punishment".

 

 

2. Regarding the res judicata of prior judgment

In handling criminal and civil cases, a basic position should be clarified: the difference between criminal and civil proceedings is natural, but once a criminal or civil judgment is made, we should fully respect the outcome of the judgment and cannot easily negate the civil or criminal law. Use civil to deny criminal.

 

 

1. The civil judgment has been sentenced to compensate for losses, but it has not been executed or cannot be executed. Should the defendant be sentenced to refund in criminal cases?

 

In practice, some people believe that because civil judgments have not been executed, the handling of civil cases should not be considered in criminal proceedings, but should be refunded or recovered in the amount of criminal cases ascertained. 

This actually uses criminal judgments to replace civil judgments. According to the above-mentioned clear judicial position, this approach needs to be reflected.

 

The civil judgment for compensation for losses has been made, which means that the victim's claim has received judicial relief, and there should be no need to return the criminal judgment. 

As for the enforcement of civil judgments, it is only a practical issue, which is restricted by many objective factors, but it will not change the fact that the victim’s property losses have been protected by the court’s effective judgment. What's more, even if the criminal judgment is refunded or recovered, there may still be the problem of impossibility of enforcement.

 

People may believe that in practice, the victim's right to choose the method of litigation should be respected. Once he chooses to resolve it through civil litigation, the criminal litigation should be initiated cautiously. 

This is also a powerful measure to prevent some civil parties from abusing criminal proceedings and "promoting the people with punishment". Some people may worry about improper civil judgments. 

This problem also exists in criminal judgments. Moreover, the realization of the rights of parties includes two links: civil judgments and enforcement. For some problems in the judgments, judgments in the enforcement field can also be used. Regulation.

 

 

2. Can a civil lawsuit be filed after the criminal judgment is recovered or refunded?

According to the 1998 Supreme People’s Court "Regulations on the Scope of Criminal and Attached Civil Litigation", if the victim cannot recover the loss in the People’s Court according to law or ordered to return compensation, he may initiate a civil lawsuit separately.

 

However, from a practical point of view, the general enforcement rate of criminal judgments involving recovery or refund of compensation is not high (there are many reasons for this). 

Therefore, there is a view that although the criminal judgment involves recovery of stolen goods but the victim has not been fully refunded, the victim should be allowed to initiate another civil lawsuit.

Filing of Civil Lawsuit after criminal judgment is recovered or compensation is refunded


In practice, some local courts have also introduced the practice of issuing a certificate of not all returned stolen goods to the victim in order to allow the victim to successfully file a civil case.

 If we follow the aforementioned judicial position, we understand that, in principle, the parties should no longer be allowed to initiate another civil lawsuit.

 In particular, if there is a clear amount of refund and the subject of the refund and the subject of the right in the criminal judgment, if it cannot be enforced only because the defendant is insolvent, the victim should directly apply to the court for enforcement instead of it is allowed to file another civil lawsuit with the court for the same loss, because the people's court has already made judicial confirmation and guarantee for the loss claim, and further lawsuit will only waste judicial resources and the cost of the parties.

 

Of course, the enforcement department should pay attention to the enforcement of criminal judgments, and should not make "different treatment" between criminal enforcement and civil enforcement, and especially should not deliberately set thresholds to artificially exclude the enforcement of some criminal sentences.

 

Finally, what I want to say is that the handling mechanism of criminal-civilian cases is a very practical topic. Three concepts should be established in actual case handling:

 

The first is the overall concept. We must look at the facts of the case in a comprehensive manner, especially for cases involving criminal and civil litigation, we should look at the problem as a whole, and we should not go to the front, discuss the matter and deal with it one-sidedly.

 

The second is the concept of integration. There should be more exchanges between civil and criminal, and they should be good at mutual borrowing ideas. 

For example, criminal judges should listen to the opinions of civil judges on issues directly related to the validity of contracts, while civil judges should listen to the opinions of civil judges on issues directly related to the validity of contracts. Listen more to the opinion of the criminal judge.

 

The third is the concept of coordination. The differences between criminal proceedings and civil proceedings naturally exist. Under the current institutional framework, it is difficult to reach a complete agreement between the two. 


Conclusion

However, coordination and unity on issues of principle should be emphasized. Retreat to the north and negate each other. For example, if the criminal is not recognized as a crime, the civil still recognizes that the contract is valid.

 

Lawruling

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