On July 31, the online publishing hall of the Supreme People's Procuratorate issued a reminder of the legal risks of enterprises-the prevention of the legal risks of enterprises from the perspective of prosecution and prosecution.
criminal appeal cases are mainly distributed in Section 7 "Crime of Infringing Intellectual Property Rights", Section 8 "Crime of Disrupting Market Order" and Chapter 5 "Crime of Infringing Property" of Chapter 3 of the Criminal Law of the People's Republic of China, and there are risk points in all aspects of the daily operation of enterprises.
Civil litigation supervision cases are mainly concentrated in the field of contract disputes, among which loan contract disputes, sales contract disputes and construction contract disputes account for a relatively high proportion, which intuitively reflects the financing needs and difficulties of enterprises, as well as the lack of standardization in the process of contract conclusion and performance.
Through the handling of complaint and appeal cases, the procuratorial organs found that, from the perspective of enterprises, there are roughly the following two reasons leading to disputes and even irreparable losses:
First, some enterprises still have weak legal awareness and lack a systematic and effective risk prevention system. Generally speaking, a considerable number of enterprises, especially small and medium-sized enterprises, have weak legal awareness, lack of effective self-protection awareness, and lack of "bottom line can not be touched" boundary awareness to a certain extent, which often leads to irreversible consequences. Because of this, the prosecutors of the prosecution department of complaints and appeals often have a "sense of powerlessness" in the process of handling cases, and often reflect that if the enterprises involved can take early precautions, take early measures, stop losses as early as possible, and stop as early as possible, the consequences will be completely different, the losses will be more likely to be recovered, and the enterprises will not. The relevant person in charge will not be involved in criminal responsibility. For example, some enterprises have already discovered the abnormal behavior of the other party's enterprise at the initial stage of signing or fulfilling the contract, but still do not take effective measures in time to deal with it, resulting in the expansion of losses or even unable to recover; for example, some enterprises do not pay attention to the timely application for trademark registration, after being registered by others, even if it is declared invalid afterwards, there is no retroactive effect on the previous judgment; For example, some enterprises ignore the important role of the articles of association, simply download the template for registration or do not change in time, resulting in the lack of effective protection of disputes in external business activities; For example, some entrepreneurs have weak legal awareness, their understanding of enterprise property is still at the stage of confusion with personal property, taking advantage of their positions, taking enterprise property as their own, suspected of occupation, and so on.
Second, the ability of self-rescue after legal disputes is weak. When legal disputes occur, it is not the right way to evade and shirk responsibility. Only by actively seeking the help of professionals and relevant departments and actively participating in legal procedures, can it be possible to minimize the impact of legal disputes on enterprises. However, due to the lack of prior and effective awareness of litigation risk prevention, some enterprises can not deal with disputes rationally, legally and effectively after falling into litigation. They use the way of delaying, evading or even actually causing losses to expand to deal with disputes, dragging enterprises into the quagmire of dispute settlement, which not only fails to properly handle disputes, but also thoroughly affects the production and operation of enterprises; Some enterprises are afraid of being enforced after civil disputes, and take improper actions such as intentional transfer of property, which lead to being included in the list of discredited executives, affecting normal operation, and even constitute the crime of refusing to execute judgments and convictions.
Enterprise Legal Risk Tips, relying on the functional advantages of the "case entrance" of the prosecution department of the prosecution organ, makes a comprehensive analysis of the complaint cases accepted and examined, and combs the risk points of enterprises according to two logical main lines.
First, the main line is the high risk of judicial practice. The high incidence of civil and criminal risks runs through it, highlighting the characteristics and needs of enterprises, especially small and medium-sized enterprises. The induction of each risk point is based on a large number of real cases, and the relevant legal norms are guided.
Second, take the daily production and operation of enterprises as the main line. From the signing and performance of contracts, to the guarantee of external financing, to the internal management of enterprises, to the settlement of disputes, to respond to the needs of enterprises in an all-round way.
The first part is the signing and performance of contracts
by enterprises. The basic situation
of the signing and performance of contracts involved in complaint and appeal cases. In accepting and examining cases, the procuratorial departments of complaint and appeal found that a large number of cases had hidden dangers at the beginning of the signing of contracts by enterprises. In
some cases, the parties thought that they had signed a contract with the other party's enterprise and paid accordingly, but in fact, the signature and seal of the other party could not represent the enterprise; in some cases, in order to obtain the order, the parties gave the other party's handling personnel the benefit of not entering the account; In some cases, the parties still do not sign a written contract when concluding a large contract on the basis of trust in small economic exchanges for many years. When disputes arise, both parties stick to their own arguments and find it difficult to provide evidence. In some cases, in the process of fulfilling the contract, the parties find that it may be difficult for them to fulfill their contractual obligations, resulting in the intention of luring the other party to continue to perform the contract and defrauding the other party's property; In some cases, the parties have signed a contract with some blank contents, and the other party has filled in the contents that have not been confirmed by both parties and have aggravated its own obligations; in some cases, the parties have found that the other party has breached the contract, and they think that they should be exempted from all the losses incurred and allow the losses to expand; In some cases, the parties changed the contract according to the actual needs during the performance of the contract, but failed to confirm the workload of the change, resulting in huge disputes in the settlement.
2. Risk tips
made by the prosecution department of complaint and appeal (1) Risk tips
on the subject of the contract [risk point 1] In handling cases, the prosecution department of complaint and appeal found that in some cases, there were defects in the signature and seal of the contract. The risk of "difficulty in defining the subject of the contract".
[Interpretation 1] Some enterprises lack normative awareness, confuse the identity of the other party when signing a contract, confuse or equate the other party's enterprise with the legal representative, shareholder and actual controller, which leads to disputes over whether the other party's enterprise or individual is the subject of the contract (which means that the ability to perform the contract is different). Hidden dangers are laid for the effective performance of the contract in the future.
Based on the principle of relativity of contract, the contract can only bind the parties to the contract (Article 465 of the Civil Code of the People's Republic of China). In order to prevent such risks, the parties to the contract should be clearly defined when signing the contract. Carefully examine the representative identity and agency procedures of the opposite party who intends to establish a contractual relationship, and require the legal representative of the other party or the entrusted agent with agency authority to sign and seal the enterprise. In addition, for the parties who cooperate for the first time, especially those who have major transactions, it is suggested to fully understand the performance ability of the other party, including industrial and commercial inquiries, inquiries about litigation and execution, and field visits.
[Risk Point 2] In handling cases, the prosecution department of complaint and appeal found that in some cases, the contract signed between the enterprise and the internal organization of the opposite enterprise, such as the "project department", will produce the risk that the effect is not as good as that of the other enterprise.
[Interpretation 2] The internal organization of an enterprise has no independent legal personality, and it has legal risks to accept the internal organization as the opposite party to sign a contract. In judicial practice, it is often necessary to further ascertain whether the person signing the contract has the right of agency. Usually, if the person has the right of agency, the contract can bind the other party's enterprise (Article 162 of the Civil Code of the People's Republic of China); If there is no right of agency, it is necessary to further judge whether it constitutes agency by estoppel. If it constitutes agency by estoppel, the contract can bind the other party's enterprise (Article 172 of the Civil Code of the People's Republic of China). If it does not constitute agency by estoppel, it needs the ratification of the enterprise. If the enterprise does not ratify it, it will not be valid for the enterprise (Article 171 of the Civil Code of the People's Republic of China).
[Prompt for prosecution and application 2] The prosecutor suggests that in order to prevent such risks, it is necessary to avoid signing contracts with the internal institutions of enterprises, or to clarify that the internal institutions are authorized.
[Risk Point 3] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises bribed relevant units or personnel in order to obtain trading opportunities, which would lead to the risk of unfair competition or even suspected criminal offences.
[Interpretation and Reasoning 3] Operators use property or other means to bribe the staff of the counterpart of the transaction, the units or individuals entrusted by the counterpart of the transaction to handle relevant affairs, and the units or individuals who use their powers or influence to influence the transaction in order to seek trading opportunities or competitive advantages. Acts of unfair competition prohibited by the Anti-Unfair Competition Law (Article 7 of the Anti-Unfair Competition Law of the People's Republic of China). Giving money or property to state functionaries and influential persons in order to seek illegitimate interests constitutes the crime of offering bribes (Article 389 of the Criminal Law of the People's Republic of China); giving money or property to the staff of companies, enterprises or other units in order to seek illegitimate interests, if the amount is relatively large, constitutes the crime of offering bribes to non-state functionaries (Article 164 of the Criminal Law of the People's Republic of China).
[Prosecution Reminder 3] The prosecutor reminds that in order to prevent such risks, enterprises should strictly avoid bribery, and both parties should truthfully account for the discounts given to the counterparty or the commissions given to the intermediaries in an explicit manner, so as to prevent legal risks (Article 7 of the Anti-Unfair Competition Law of the People's Republic of China).
(2) Risk warning
on contract conclusion [risk point 4] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises did not conclude contracts in written form, which resulted in the risk that disputes occurred in the process of performance and it was difficult to determine rights and obligations. In some cases, the parties believe that the two parties have reached an agreement or have been trading for many years before, and conclude the contract orally. In the subsequent performance of the contract, once disputes arise, the two parties stick to their own arguments, it is difficult to reach an agreement, and it is difficult to restore the true meaning of the two parties when they conclude the contract. The
parties may conclude a contract in written, oral or other form. Written form refers to contracts, letters, telegrams, telexes, faxes and other forms that can tangibly express the contents contained therein (Article 469 of the Civil Code of the People's Republic of China). The parties are responsible for providing evidence for their claims (Article 67, paragraph 1, of the Civil Procedure Law of the People's Republic of China).
[Prosecution Reminder 4] The prosecutor reminds us that in order to prevent such risks, the contract should be signed in written form as far as possible, so as to determine the time of establishment of the contract, the main rights and obligations of the parties to the contract and their responsibilities. In some cases, laws, administrative regulations or agreements between the parties also specifically require the form of contract conclusion, which should be paid more attention to.
[Risk Point 5] In handling cases, the prosecution department of complaint and appeal found that in some cases, the contract content agreed by the enterprise was not detailed enough, and the change content of the contract could not be determined, which resulted in the risk that it was difficult to determine the rights and obligations and that the content of the contract was presumed to be unchanged. The
contract shall at least specify the name and domicile of the parties, the subject matter of the transaction, the quantity, quality, price or remuneration, the time limit, place and method of performance, the liability for breach of contract, and the agreement that the dispute settlement method shall not be ignored (Article 470 of the Civil Code of the People's Republic of China). No matter what kind of trust or partnership, we should try our best to avoid signing blank contracts. For a contract in which both parties have the obligation to perform, the order of performance shall be stipulated as far as possible to facilitate the exercise of the "right of defense of simultaneous performance" or the "right of defense of later performance" (Articles 525 and 526 of the Civil Code of the People's Republic of China). The contract shall be changed in an effective way as far as possible. When changing the content of the contract, the evidence of the agreement reached by both parties through consultation shall be retained. Otherwise, if the content of the change is not clear, there is a risk that it will be presumed that it has not been changed (Article 544 of the Civil Code of the People's Republic of China). In order to prevent such risks, the
prosecutor should draw up a written contract with complete contents and detailed details as far as possible when signing a contract, which is conducive to ensuring the safety and efficiency of the transaction and avoiding the use of vague and ambiguous expressions, such as avoiding the use of vague expressions of "qualified quality" as far as possible. At least, the quality shall be in line with the national standards or industry standards in a certain field, or the quality shall be qualified by the inspection of the buyer or the designated third party; try to avoid using the vague expression of "shall cooperate with the delivery of relevant materials", at least, it shall be expressed as "shall deliver the materials listed below, and shall be supplemented within ten days according to the requirements for matters not covered".
(3) Risk warning
on contract performance [risk point 6] In handling cases, the prosecution department of complaints and appeals found that in some cases, the property situation of the opposite party of the contract had deteriorated significantly, and the enterprise still failed to pay attention to and take measures in time, resulting in the risk of endangering the realization of the creditor's rights of the first party.
[Interpretation 6] If the enterprise finds that the business situation of the performing party has deteriorated seriously, the property has been transferred, the funds have been withdrawn to evade the debt, the commercial reputation has been lost, and there are other circumstances in which it has lost or may lose the ability to perform the debt, the party who should perform the debt first may suspend the performance; It is worth noting that the party who should perform the debt first bears the burden of proof for the aforementioned facts, and should have exact evidence to prove the aforementioned facts, so as to suspend the performance of the contractual obligations temporarily, avoid falling into the dilemma that his or her creditor's rights can not be realized, and should express and effectively serve the other party in a timely manner by means of notification. Performance shall be resumed after the other party provides appropriate guarantee (Articles 527 and 528 of the Civil Code of the People's Republic of China).
[Prosecution Reminder 6] The prosecutor reminds that during the performance of the contract, all parties should be honest and trustworthy and perform the contract in accordance with the contract. However, if an enterprise finds that the property situation of the party who performs later has deteriorated significantly, which may endanger the realization of the creditor's rights of the party who performs first, it may exercise the "right of uneasy defense" in accordance with the law in order to prevent such risks.
[Risk Point 7] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises, as observant parties, did not take appropriate measures to stop losses, resulting in the risk that the expanded losses could not be compensated. In
some cases, during the performance of the contract, if the other party breaches the contract, the observant party believes that there is no fault in the loss, so it lacks stop-loss motivation, does not take any measures, and allows the loss to expand. According to the law, if the observant party fails to take appropriate measures, resulting in the expansion of the loss, it can not claim compensation for the expansion of the loss.
[Prosecution Reminder 7] The prosecutor reminds that in order to prevent such risks, even if the other party breaches the contract, the observant party should take appropriate measures to prevent the loss from expanding, and the expenses arising therefrom can be claimed to be borne by the breaching party (Article 591 of the Civil Code of the People's Republic of China).
[Risk Point 8] In handling cases, the prosecution department of complaint and appeal found that in some cases, the enterprise could not pay attention to the situation that the debtor was negligent in exercising the creditor's rights (and subordinate rights) in time, resulting in the risk that the creditor's rights due were difficult to realize. In the practice of
economic and social life, there is often a tripartite or even multi-party relationship between the creditor, the debtor and the secondary debtor (as well as the security interest and guarantee). The debtor is both the creditor and the debtor. The debtor's negligence in exercising the creditor's rights may make it difficult to realize the creditor's due creditor's rights.
In order to prevent such risks, the enterprise, as the debtor, should claim its rights to the people's court in time if it finds relevant clues or situations, and request to exercise the debtor's rights to the counterpart by subrogation in its own name. It is also necessary to exercise the right of subrogation in advance according to law, except for the rights exclusive to the debtor (Articles 535, 536 and 537 of the Civil Code of the People's Republic of China).
[Risk Point 9] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises could not pay timely attention to the debtor's gratuitous disposition and unreasonable transfer at a low price, which resulted in the risk of affecting the realization of their own creditor's rights.
[Interpretation 9] In the practice of economic and social life, in order to evade debts, some debtors may dispose of their property rights and interests gratuitously by abandoning creditor's rights, abandoning creditor's rights guarantees, and transferring property gratuitously, or they may transfer property at an obviously unreasonable low price, transfer other people's property at an obviously unreasonable high price, and provide guarantees for other people's debts. It may affect the realization of its own creditor's rights.
[Prosecution Reminder 9] The prosecutor reminds that in order to prevent such risks, the creditor should pay attention to it in time, request the people's court to revoke the gratuitous disposition, and request the people's court to revoke the transfer at a low price when the counterpart knows it. It is worth noting that the exercise of the right of revocation has a period of exclusion, which should be exercised in time and in accordance with the law (Articles 538 to 542 of the Civil Code of the People's Republic of China).
[Risk Point 10] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises can not fully retain the evidence of contract change, delivery and settlement, which may lead to the risk of difficulty in proof and lack of protection of rights in case of disputes.
[Interpretation 10] This kind of situation is more common in construction contracts. In the process of fulfilling the construction contract, the change of construction period and quantity is very common, and a lot of payment, settlement and acceptance confirmation are needed in the process of fulfilling the contract, but the specific operation is extremely non-standard.
[Prompt for prosecution and prosecution 10] Prompt for prosecutor: In order to prevent such risks, in the actual construction process, in case of any increase or decrease in the amount of work, both parties shall confirm in writing as far as possible, and examine the identity and authority of the other party; for the payment of project funds, project delivery, completion acceptance and settlement, the evidence shall be fixed and preserved in a timely manner.
The second part of the enterprise's external financing guarantee
I. The basic situation of the complaint and appeal cases involving the enterprise's external financing guarantee The procuratorial
organ's complaint and appeal procuratorial department found that there were strong financing needs and gaps in the acceptance and examination of the cases. They often pay a higher price and take greater risks for financing. In
some cases, the litigant provides guarantee for other enterprises carelessly, and bears heavy debts, and even the risks are transmitted to the region and even the industry layer by layer; in some cases, the litigant bears high hidden costs and additional conditions to obtain loans, fails to assess the risks in advance, and is involved in the debt quagmire, triggering a chain reaction, and the capital chain is broken; In some cases, the parties fail to meet the contractual conditions in financing, triggering the terms of share repurchase, and the founders are out; in some cases, the parties provide financing guarantees in the form of equity transfer, which makes it difficult to prove and lose control of the enterprise; In some cases, in order to repay the huge fund gap, the parties even absorb the public's personal funds by means of high interest rate and oral transmission, which constitutes the crime of illegally absorbing public deposits.
2. Risk warning
made by the prosecution department of complaints and appeals (1) Risk warning
about enterprises borrowing from banks and other financial institutions is a more standardized and insured way to borrow from banks and other financial institutions. The main type of dispute arising from this kind of behavior is that the borrower is unable to repay the due debt, and the financial institution sues the borrower to repay the loan and pay the interest. It is suggested that the enterprise should plan use of funds and the source of repayment funds in advance, so as to avoid falling into the predicament of being enforced enterprise property.
[Risk point 11] In handling cases, the prosecution department of complaint and appeal found that in some cases, the enterprise did not use the loan according to the purpose agreed in the loan contract, resulting in the risk of stopping the loan, being withdrawn in advance or terminating the contract; fabricating false reasons to defraud the loan may also constitute a criminal offence. The
loan contract usually stipulates the purpose of the loan. If the borrower fails to use the loan according to the agreed purpose of the loan, he may face the consequences of the lender stopping issuing the loan, recovering the loan in advance or even terminating the contract.
[Prosecution Reminder 11] The prosecutor reminds us that in order to avoid such risks, when signing a loan contract, we should truthfully fill in the purpose of the loan and regularly provide the lender with the corresponding financial and accounting statements and other information in accordance with the agreement of the loan contract (Articles 672 and 673 of the Civil Code of the People's Republic of China).
It is worth noting that in the case of fabricating false reasons for introducing funds or projects, or using false economic contracts, using false certification documents, using false property rights certificates as guarantees or repeating guarantees beyond the value of collateral, the amount of loans from banks or other financial institutions is relatively large for the purpose of illegal possession. It may constitute the crime of loan fraud (Article 193 of the Criminal Law of the People's Republic of China), and if the amount is more than 50000 yuan, it will be prosecuted (Article 45 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (II)). Those who obtain loans from banks or other financial institutions by deception and cause heavy losses to financial institutions may constitute the crime of defrauding loans (Article 175 of the Criminal Law of the People's Republic of China).
(2) Risk tips
on private lending of enterprises [risk point 12] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises could not prove the nature of repayment, which may lead to the risk of continuing to repay loans.
[Interpretation and reasoning 12] In some cases, there may be multiple capital exchanges between borrowers and lenders in addition to the money involved, and it often happens that one party defends that the loan has been repaid, while the other party claims that the nature of the payment is to pay other debts such as the advance payment, and that the loan involved has not been repaid, when the lender submits evidence such as transfer vouchers. The borrower is required to prove his defense (proof of repayment).
[Prosecution Reminder 12] The prosecutor reminds that in order to prevent such risks, the borrower should indicate that the nature of the money is "repayment of the loan" or provide corresponding evidence to prove his claim (Articles 15 and 16 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases); In addition, it is also easy to dispute whether the payment is the principal or the interest. If there is no explicit agreement between the parties, the calculation method of repayment will be "interest before principal". In order to prevent such risks, the order of performance can be agreed in the loan contract, and whether the repayment is the interest or the principal can be indicated at the time of payment (Article 561 of the Civil Code of the People's Republic of China).
[Risk Point 13] In handling cases, the prosecution department of complaints and appeals found that in private lending, enterprises should be alert to disguised high interest rates under various circumstances.
"The interest of the loan shall not be deducted from the principal in advance" is a continuous provision of the Civil Code from the Contract Law, but in judicial practice, a large number of "interest deduction in advance" have been used in disguised form in an attempt to evade legal evaluation. For example, after the lender pays the principal of the loan in full according to the loan contract, he requires the borrower to return the interest deducted in advance in cash, or requires the borrower to pay "consulting fee", "consulting fee" and "service fee", which makes it difficult to identify the negative evaluation of "beheading interest" in judicial practice.
[Prompt 13] The prosecutor suggested that in order to prevent such risks, the borrower should strengthen the awareness of evidence and avoid unconditionally cooperating with the lender's disguised operation. As far as possible, the relevant vouchers of interest deducted in advance shall be retained (Article 670 of the Civil Code of the People's Republic of China and Article 26 of the Provisions of the Supreme People's Court on Several Questions Concerning the Application of Law in the Trial of Private Lending Cases).
[Risk Point 14] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises try to transform other legal relationships into private lending, which will lead to the risk of being defended by real legal relationships. In
some cases, in order to improve efficiency, the parties negotiate the real creditor's rights and debts arising from the performance of the contract into private lending. If the other party repents and provides evidence to defend or counterclaim in accordance with the basic legal relationship, the case will be tried in accordance with the basic legal relationship. Creditors will actually face the risk of being unable to recover because there is no real lending relationship.
[Prosecution Reminder 14] The prosecutor reminds us that in order to prevent such risks, if both parties agree to convert creditor's rights and debts into private lending through consultation, the actual settlement of creditor's rights and debts should be carried out. It shall be confirmed by reaching an agreement on the settlement of creditor's rights and debts (Article 14 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases), and the settlement sheets, current accounts and correspondence, settlement methods or basis of both parties shall be retained.
[Risk point 15] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises used the financing funds for lending, which would face the risk of invalid contracts; if the circumstances were serious, it might also constitute a criminal offence.
[Interpretation 15] Those who arbitrage loans from financial institutions, borrow from other profit-making legal persons, raise funds from employees of their own units or illegally absorb public deposits, and provide loans to unspecified objects for profit-making purposes without obtaining the qualifications for lending, shall be subject to the law. The private lending contract is invalid if it is known in advance or should be known that the loan is still provided for illegal activities (Article 13 of the Provisions of the Supreme People's Court on Several Questions Concerning the Application of Law in the Trial of Private Lending Cases).
[Prompt for prosecution and application 15] Prompt by the prosecutor: In order to prevent such risks, it should be understood that usually only the idle funds owned by the enterprise can be used for borrowing. It is worth noting that for the purpose of transferring loans for profit, obtaining credit funds from financial institutions and transferring them to others at high interest rates may constitute the crime of transferring loans at high interest rates (Article 175 of the Criminal Law of the People's Republic of China); Illegal absorption of public deposits or disguised absorption of public deposits and disruption of financial order may constitute the crime of illegal absorption of public deposits (Article 176 of the Criminal Law of the People's Republic of China).
[Risk Point 16] In handling cases, the prosecution department of complaints and appeals found that some parties create and participate in false lawsuits, face the risk of being fined and detained, and may be prosecuted for criminal responsibility if the circumstances are serious.
[Interpretation 16] Fictitious creditor's rights and debts or forged evidence, malicious manufacturing and participation in false litigation may be fined or detained (Articles 18 and 19 of the Provisions of the Supreme People's Court on Several Questions Concerning the Application of Law in the Trial of Civil Lending Cases), and civil litigation may be initiated with fabricated facts. Those who obstruct judicial order or seriously infringe upon the legitimate rights and interests of others constitute crimes will also be investigated for criminal responsibility according to law (Article 307 of the Criminal Law of the People's Republic of China).
[Prosecution Tips 16] Prosecutor's Tips: In judicial practice, private lending is a high-incidence area of false litigation, cases will be strictly examined, and the existence of luck and speculation should be avoided.
(3) Risk warning
on other financing methods of enterprises [risk point 17] In handling cases, the prosecution department of complaints and appeals found that in some cases, if the leased property is damaged or lost during the performance of the financial lease contract, the lessee may still have to pay the rent according to the contract.
Financial leasing is a combination of financing and financing (Article 735 of the Civil Code of the People's Republic of China). In a financial leasing contract, the lessor purchases the leased property and delivers it to the lessee for use according to the lessee's choice of the leased property and the seller. The leased property is usually under the actual possession and control of the lessee. Unless otherwise stipulated by law or agreed between the parties, if the leased property is damaged or lost during the lessee's possession of the leased property, the lessor will have the right to request the lessee to continue to pay the rent (Article 751 of the Civil Code of the People's Republic of China).
[Prosecution Reminder 17] The prosecutor reminds us that in order to prevent such risks, the lessee should properly keep the leased property, and in case of valuable leased property, the lessee should purchase corresponding commercial insurance to share the risks reasonably.
(4) With regard to the risk warning
of the enterprise's external guarantee [risk point 18], the prosecution department of complaint and appeal found in handling cases that in some cases, the enterprise provides guarantee or guarantee for others, and when the debtor fails to perform the due debts or other agreed circumstances occur. The guarantor will be exposed to the risk of direct performance or liability. In
judicial practice, it is found that due to the difficulty of financing and the high demand for guarantee in the market, many enterprises provide guarantee or guarantee for others rashly without examining the repayment ability and assessing the risk.Once a suretyship is provided, in the case of a suretyship of joint and several liability, if the debtor fails to perform the due debt or an agreed circumstance occurs, the creditor may directly choose the surety to assume the suretyship liability; in the case of a general suretyship, if the debtor's whereabouts are unknown, the surety may not claim the right of defense in advance (Articles 687 and 688 of the Civil Code of the People's Republic of China).
[Prompt 18] The prosecutor reminds that in order to prevent such risks, the guarantor should carefully assess the income before providing guarantees for others, fully examine the debtor's repayment ability, and may require the debtor to provide counter-guarantees (Article 689 and Article 387, paragraph 2, of the Civil Code of the People's Republic of China). Providing counter-guarantee can enable the guarantor to obtain the right of claim with certain guarantee after paying off the debt, specifically pointing to the collateral, pledge and so on, which is an effective measure to reduce risk losses.
[Risk Point 19] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises provide guarantees for illegal loan contracts, which can not be exempted from guarantee liability.
[Interpretation 19] In judicial practice, some borrowers who provide false materials or forge materials to defraud bank loans are investigated for criminal responsibility, which can not exempt the guarantor from the guarantee liability.
[Prompt 19 for prosecution and prosecution] In order to prevent such risks, when providing guarantees for others, enterprises should not only carefully assess the consideration that can be obtained by providing guarantees from a commercial point of view and the repayment ability of borrowers, but also strictly operate in accordance with the norms from a legal point of view, not participate in the production or submission of false materials, and not provide guarantees for fraudulent loans. Reduce the risk of guarantee (Articles 8 and 12 of the Provisions of the Supreme People's Court on Several Questions Concerning the Application of Law in the Trial of Private Lending Cases).
The third part is the internal management
of enterprises. The basic situation of complaint and appeal cases involving the internal management of enterprises. In handling the cases, the complaint
and appeal procuratorial departments found that some enterprises involved, especially some small and medium-sized enterprises, had chaotic internal management. In some cases, in order to maintain the flexibility of external business behavior, the company's seal custody and seal management are relatively loose, and no strict seal management system has been established, which leads to the frequent occurrence of seal competition and true and false seals; In some cases, the shareholders' meeting held by the enterprise fails to form a legal and effective resolution of the shareholders' meeting, resulting in the resolution being questioned after the actual implementation, which can not be used as a legal basis for resolving differences; in some cases, the company's property is confused with the property of shareholders or actual controllers, abusing the independent status of the company as a legal person; In some cases, the property accounts of shareholders and companies are not clear, the transfer and reimbursement processes of enterprises are not standardized, the financial data of enterprises are not transparent, and the tax invoices are not standardized; in some cases, the actual investors invest anonymously, the prominent shareholders dispose of their equity, transfer it many times, and the equity even "evaporates out of thin air"; In some cases, the company's articles of association simply apply the template, which is not applicable to the disputes in practice, or the change of the articles of association is not registered in time; in some cases, the employees who leave the company still hold the authorization and entrustment procedures printed by the enterprise and sign the contract with the outside.
In the field of intellectual property rights, a large number of enterprises do not attach importance to the protection of their legitimate rights and interests. In some cases, enterprises did not apply for trademark registration in time, but were applied by downstream enterprises, which not only involved civil compensation, but also may constitute a criminal offence; in some cases, enterprises had no awareness of rights boundaries, knowing that it was an infringement of the exclusive right to use registered trademarks, but still provided warehousing and other services, knowing that the goods were counterfeit registered trademarks, but still sold them.
2. Risk tips
made by the prosecution department of complaints and appeals (1) Risk tips
on the establishment and management of enterprises [risk point 20] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises adopt different forms of enterprise organization. Different investor risks may arise.
According to the law of our country, the general forms of enterprise organization include sole proprietorship, partnership (general partnership and limited partnership), company (limited liability company and joint stock limited company). Different forms of enterprise organization have different responsibilities for investors. The investor of a sole proprietorship enterprise and the general partner of a partnership enterprise shall bear unlimited joint and several liabilities for the debts of the enterprise; the limited partner of a partnership enterprise, the shareholder of a limited liability company and the shareholder of a joint stock limited company shall bear liabilities for the enterprise to the extent of the capital contribution or shares subscribed by them; It is worth noting that if the shareholders of a one-person limited liability company can not prove that there is no property confusion with the company, there will be a risk of joint and several liability for the company's debts (Article 63 of the Company Law of the People's Republic of China). They should also be liable for the company's debts (Article 20 of the Company Law of the People's Republic of China).
[Prompt for prosecution and application] The prosecutor reminds us that in order to prevent such risks, when setting up an enterprise, we should choose the appropriate form of enterprise organization according to the actual situation, considering both convenience and safety, and pay attention to the effective quarantine with personal (family) property in the daily operation of the enterprise, so as to avoid the confusion of property.
[Risk Point 21] In handling cases, the prosecution department of complaints and appeals found that in some cases, shareholders did not fully fulfill their capital contribution obligations when the company was established, and other sponsors may face the risk of joint and several liability.
[Interpretation 21] The shareholder shall fully perform the obligation of capital contribution. If the shareholder fails to perform the obligation, the company or other shareholders shall have the right to require the shareholder to fully perform the obligation in accordance with the law. For the part of the company's debts that cannot be paid off, the company's creditors may also require the shareholder to assume supplementary liability for compensation for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the unpaid capital contribution. In judicial practice, some shareholders have fulfilled their obligation of capital contribution, but they may still need to bear joint and several liability for the company's debts because of other sponsors.
[Prompt 21] The prosecutor reminds us that in order to prevent such risks, the promoter shareholders of the company should pay attention to urging other promoter shareholders to fully fulfill their capital contribution obligations. To avoid joint liability with the promoter shareholders who have not fully fulfilled their capital contribution obligations when the creditors of the company file a lawsuit (Article 13 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III)).
[Risk Point 22] In handling cases, the prosecution department of complaints and appeals found that in some cases, the parties invest anonymously, which may lead to the risk of not being able to show their names and the disposal of their shares.
[Interpretation and reasoning 22] In judicial practice, cases involving anonymous investment are frequent and controversial. Dormant contribution usually involves a number of legal relationships, at least including the legal relationships between dormant shareholders (actual contributors) and prominent shareholders (recorded in the register of shareholders), dormant shareholders and other shareholders of the company, dormant shareholders and the third party outside the company (creditors, transferees of equity). The equity holding agreement between the dormant shareholder and the prominent shareholder usually constitutes an entrustment contract relationship, and the equity holding agreement may not be able to determine the equity ownership relationship. When the dormant shareholder requests the company to recognize his shareholder status, it involves the confirmation of shareholder qualification, the need to prove the actual capital contribution, and the need for more than half of the other shareholders of the company to agree; When the prominent shareholders do not dispose of the shares held by them according to the wishes of the dormant shareholders, it also involves the validity of the act of division. The behavior of anonymous capital contribution leads to the inconsistency between the industrial and commercial registration and the actual capital contribution (rights), the uncertainty of identifying the ownership and interests of equity, and the protection of the third party outside the company, which is risky.
[Prompt of prosecution and application 22] The prosecutor suggested that in order to prevent such risks, the way of equity holding should be used cautiously; If it is really necessary to hold shares on behalf of others, the rights and obligations of the parties and the rules for dealing with disputes should be stipulated in the agreement as detailed as possible, and the evidence materials for capital contribution and corresponding instructions should be preserved (Article 71 of the Company Law of the People's Republic of China, and Article 71 of the Company Law of the People's Republic of China). Articles 24 and 25 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III), and Article 311 of the Civil Code of the People's Republic of China).
[Risk Point 23] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises ignore the completeness of the articles of association and fail to amend and register in time, which will lead to risks such as lack of internal dispute resolution mechanism or failure of dispute resolution mechanism.
[Interpretation 23] The articles of association are the common and unanimous expression of the shareholders, which record the basic principles of the company's organization and activities, and are called the company's charter, which is extremely important. Taking a limited liability company as an example, the major matters that should be specified in the articles of association of the company shall at least include: the name and domicile of the company, the scope of business, the registered capital, the name of the shareholder, the mode, amount and time of capital contribution of the shareholder, the organization of the company and its formation method, functions and powers, rules of procedure, the legal representative of the company, and other matters deemed necessary by the shareholders' meeting. The articles of association shall regulate the relationship between shareholders, between shareholders and management, and between the founding team and investors internally, and shall publicize important information to creditors externally (Articles 25 and 81 of the Company Law of the People's Republic of China). In judicial practice, a large number of disputes have arisen because of the incomplete provisions of the articles of association and the untimely registration of changes. For example, after a company changes its legal representative, if it fails to handle the industrial and commercial change registration in time, the registered legal representative has the publicity effect according to law, and the contract signed by the original legal representative is recognized as valid, the corresponding consequences are still borne by the company; if the official seal is seized internally, it cannot be directly determined whether the official seal is invalid according to the articles of association, and the controller of the official seal cannot be directly determined according to the articles of association. There are many similar risks.
[Prosecution Reminder 23] Prosecutor's Reminder: In order to prevent such risks, the articles of association of the company should at least stipulate the necessary matters listed in the company law as completely as possible, and when the articles of association are amended, the industrial and commercial change registration should be carried out in a timely manner. It is worth noting that the system design of the articles of association will also effectively affect the operation of the company. If the articles of association regulate the management system of the seal certificate, the original legal representative can request the return of the seal certificate most efficiently when he continues to hold the seal certificate; if the articles of association restrict the scope of the legal representative's authority accordingly, it can confront the non-bona fide counterpart and facilitate the recovery from the legal representative who is at fault (Article 61 of the Civil Code of the People's Republic of China); For example, the articles of association can effectively expand or restrict the terms of reference of the chairman within the scope permitted by law.
(2) Risk tips
on the management of internal personnel of enterprises [risk point 24] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises improperly manage the procedures of authorization and entrustment, which may produce corresponding legal effects and risks borne by enterprises.
[Interpretation 24] In judicial practice, it often happens that employees who leave their jobs sign contracts with the valid power of attorney of the enterprise, or even collect the contract price on their behalf.
[Prompt of prosecution and application 24] Prompt of prosecutor: In order to prevent such risks, the management of principal-agent procedures should be standardized. When entrusting the internal staff of the enterprise to sign a contract, the scope and duration of the authorization shall be listed in the power of attorney as clearly and in detail as possible; the unused power of attorney, contract and other documents shall be withdrawn as soon as possible after the completion of the business; When an employee leaves the company, he/she shall notify the customer he/she is responsible for contacting and inform the employee that he/she has left the company, so as to prevent the employee from negotiating with the customer in the name of the company after leaving the company and causing losses to the company (Article 172 of the Civil Code of the People's Republic of China).
[Risk Point 25] In handling cases, the prosecution department of complaints and appeals found that in some cases, if enterprises do not conclude written labor contracts with employees, there may be risks such as paying double wages and concluding non-fixed-term labor contracts.
According to the provisions of the Labor Contract Law, the labor contract is a formal contract, and the employer has the legal obligation to conclude a written labor contract with the laborer, and shall conclude a written labor contract with the laborer within one month from the date of employment. If an employer fails to conclude a written labor contract with a worker for more than one month but less than one year from the date of employment, it shall pay the worker twice the monthly wage. If an employer fails to conclude a written labor contract with a worker within one year from the date of employment, it shall be deemed to have concluded a non-fixed-term labor contract with the worker (Articles 10, 14 and 82 of the Labor Contract Law of the People's Republic of China).
[Prompt 25] Prompt by the prosecutor: As an employer, an enterprise should fulfill its obligations in strict accordance with the provisions of the Labor Contract Law, which is not only to fulfill its corporate social responsibility, but also to prevent and control risks and costs.
[Risk Point 26] In handling cases, the prosecution department of complaints and appeals found that in some cases, the rules and regulations of enterprises are not publicized to employees, and there may be risks that they can not be used as the basis for determining the rights and obligations of both parties. The rules and regulations of
enterprises are the specific provisions for production, operation and daily management requirements, and the code of conduct for all employees. Enterprises should establish and improve rules and regulations according to law. If there are rules and regulations or major matters directly related to the vital interests of employees that have not gone through democratic procedures or have not been publicized or informed to employees, the rules and regulations are not binding on employees, and punishment or termination of labor contracts on the grounds of violation of the rules and regulations may be recognized as illegal; If the rules and regulations of the enterprise violate the provisions of laws and regulations and damage the rights and interests of the workers, the workers may terminate the labor contract.
In order to prevent such risks, when an enterprise formulates, revises or decides on rules and regulations or major matters directly related to the vital interests of workers, it shall be discussed by the workers'congress or all workers, put forward plans and opinions, and determine them through equal consultation with trade unions or workers' representatives; Publicize rules and regulations and decisions on major matters directly related to the vital interests of workers, or inform workers (Article 4 of the Labor Contract Law of the People's Republic of China and Article 50 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases (I)).
[Risk Point 27] In handling cases, the prosecution department of complaints and appeals found that in some cases, if the enterprise does not specifically and effectively stipulate the confidentiality obligations and non-competition clauses of employees, there is a risk of lack of compensation basis for the losses caused.
[Interpretation 27] In judicial practice, enterprises need to use confidentiality clauses and non-competition clauses to protect trade secrets and claim compensation for losses after employees leave their jobs, but the relevant agreements can not be effectively applied.
In order to prevent such risks, attention should be paid to the fact that enterprises and employees can specify in their labor contracts the confidentiality matters related to keeping business secrets and intellectual property rights of enterprises, sign non-competition agreements with those who have the obligation of confidentiality, and agree that after the termination or termination of the labor contract. Economic compensation shall be paid to the employee on a monthly basis during the non-competition period (Article 23 of the Labor Contract Law of the People's Republic of China); the personnel restricted by the non-competition clause shall be the senior management personnel, senior technical personnel and other personnel with confidentiality obligations of the enterprise; if the employee violates the non-competition agreement, he shall pay liquidated damages to the employer in accordance with the agreement. It is worth noting that the non-competition period shall not exceed two years (Article 24 of the Labor Contract Law of the People's Republic of China); after the cancellation or termination of the labor contract, the employee shall be given economic compensation on a monthly basis during the non-competition period, and the employee may exercise the right of cancellation if the compensation is not paid for more than three months; When the agreed amount of liquidated damages is excessively higher than amount of economic compensation, the employee's request to reduce the non-competition liquidated damages may be supported.
[Risk Point 28] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises that fail to pay social insurance premiums for employees in full according to law may face the risk of paying higher labor costs.
[Interpretation 28] In judicial practice, some enterprises sign agreements with employees to exempt them from paying social insurance or to pay social insurance by themselves in an attempt to reduce the cost of employment. Paying social insurance for employees is a legal obligation, which can not be excluded or changed by agreement, but will pay economic compensation because of the termination of the labor contract, or compensate for the loss because it can not be made up, and actually pay higher labor costs. According to the provisions of the Labor Contract Law, enterprises and employees must participate in social insurance and pay social insurance premiums according to law (Article 72 of the Labor Contract Law of the People's Republic of China); According to the provisions of the Social Insurance Law, enterprises shall declare and pay social insurance premiums in full and on time by themselves, and shall not postpone or reduce the payment unless due to force majeure or other legal reasons (Article 60 of the Social Insurance Law of the People's Republic of China); If the employee fails to pay the social insurance premium in accordance with the law, the employee may terminate the labor contract (Article 38 of the Labor Contract Law of the People's Republic of China). The enterprise shall pay economic compensation to the employee according to the employee's working years in the enterprise and the average wage standard of 12 months before the termination or termination of the labor contract (Articles 46 and 47 of the Labor Contract Law of the People's Republic of China). If the enterprise fails to go through the social insurance formalities or pay the social insurance for the employees in accordance with the law, the social insurance management department shall have the right to collect the social insurance fees; if the enterprise fails to go through the social insurance formalities for the employees and the social insurance agency fails to make up the social insurance for the employees, resulting in the employees being unable to enjoy the social insurance benefits, the employer shall compensate the workers for the losses.
[Prosecution Reminder 28] The prosecutor reminds that in order to prevent such risks, enterprises should avoid agreeing with employees to exempt or pay social insurance premiums by employees themselves, but should pay social insurance premiums of employees in full and on time according to law.
[Risk Point 29] In handling cases, the prosecution department of complaints and appeals found that in some cases, enterprises infringe, disclose and improperly use trade secrets, which may lead to the risk of civil liability and even criminal liability. During the conclusion and performance of a
contract, both parties may know the other party's trade secrets or other information that should be kept confidential, and the parties have the obligation to keep it confidential.
[Prosecution Reminder 29] The prosecutor reminds us that in order to prevent such risks, no matter whether the contract is established or not, we should not disclose or improperly use the trade secrets we know, otherwise we will cause losses to the other party. Civil liability will be borne (Article 501 of the Civil Code of the People's Republic of China and Article 9 of the Anti-Unfair Competition Law of the People's Republic of China).
It is worth noting that if trade secrets are obtained by improper means such as theft, bribery, fraud, coercion and electronic intrusion, or if trade secrets obtained by the aforementioned means are disclosed, used or allowed to be used by others, or if they are disclosed, used or allowed to be used in violation of the duty of confidentiality, the serious circumstances constitute the crime of infringing trade secrets. They need to bear criminal responsibility (Article 219 of the Criminal Law of the People's Republic of China).
(3) The risks of intellectual property protection in enterprises suggest that
the problems of intellectual property protection are prominent in all kinds of enterprises, especially in small and medium-sized enterprises.
[Risk Point 30] In handling cases, the prosecution department of complaints and appeals found that some enterprises do not attach importance to the protection of their own intellectual property rights, which will lead to the risk of lack of basis for safeguarding rights and difficulty in safeguarding rights.
Intellectual property rights include trademarks, patents, copyrights, layout-designs of integrated circuits, geographical indications, new varieties of plants, trade secrets, traditional knowledge, genetic resources and folk literature and art.
[Prompt 30] Prompt by the prosecutor: Taking trademarks as an example, if an enterprise needs to obtain the exclusive right to use a trademark for goods or services, it shall apply to the Trademark Office for trademark registration in a timely manner. The contents of a registered trademark include marks that can be distinguished from other people's goods, such as words, graphics, letters, numbers, three-dimensional marks, color combinations and sounds. And combinations of the foregoing. A registered trademark shall be so distinctive as to be distinguishable and shall not conflict with any prior right acquired by another person.
If the registered trademark is not applied for in time, it may be preempted by others because the trademark registration follows the principle of prior registration; it may also constitute infringement and face civil compensation because it is identical or similar to the prior registered trademark of others in the same or similar commodities; it is impossible to license or transfer the use of others; Because they do not enjoy the exclusive right to use trademarks, they may also affect their brand reputation because of the use of others. In order to prevent such risks, enterprises should strengthen their awareness of protecting their own intellectual property rights in the course of operation, pay timely attention to similar and similar trademarks that others intend to apply for registration in the stage of publicity, and timely apply for registration of registered trademarks, patents, copyrights and layout designs of integrated circuits.For the discovery of infringement by others, the evidence shall be fixed in time.
Trade secrets are also worthy of attention, and the obligee's adoption of confidentiality measures is one of the constituent elements of trade secrets. In the process of product research and development, the enterprise cannot apply for patent protection because the research and development has not been completed, so it should pay special attention to the protection of trade secrets, so as to prevent others from using the research results of the enterprise to complete the product research and development first and apply for patents first; after the research and development is completed, it should timely apply for patents or continue to take confidentiality measures to protect trade secrets; Where entrusted processing is involved, attention shall be paid to signing confidentiality agreements and taking confidentiality measures.
[Risk Point 31] In handling cases, the prosecution department of complaints and appeals found that in some cases, the infringement of intellectual property rights of others will result in the risk of civil compensation or even criminal offences.
[Interpretation 31] Trademark infringement has certain particularities. In the process of producing goods or providing services, producers should fulfill the obligation of reasonable examination and obtain other people's registered trademark information through retrieval, so as to avoid trademark infringement; The prominent use of the same or similar words as the registered trademark of others as the name of the enterprise on the same or similar goods, which is likely to cause misunderstanding among the relevant public, is a trademark infringement; the intentional provision of convenient conditions such as warehousing, transportation, mailing and concealment for the infringement of the exclusive right to use registered trademarks of others is also a trademark infringement. Infringement of trademark rights means not only civil compensation, but also criminal offences.
[Prompt 31] The prosecutor suggested that in order to prevent such risks, under the background of continuously increasing the punishment of intellectual property infringement, enterprises should pay special attention to the prevention of intellectual property infringement. Taking trademarks as an example, the use of the same trademark on the same commodity or service without the permission of the owner of the registered trademark, if the circumstances are serious, constitutes the crime of counterfeiting registered trademarks (Article 213 of the Criminal Law of the People's Republic of China and Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Questions Concerning the Specific Application of Law in Handling Criminal Cases of Infringement of Intellectual Property Rights); Those who knowingly sell goods with counterfeit registered trademarks in large quantities or with other serious circumstances constitute the crime of selling goods with counterfeit registered trademarks (Article 214 of the Criminal Law of the People's Republic of China); Whoever forges or makes, without authorization, representations of a registered trademark of another person or sells representations of a registered trademark forged or made without authorization, if the circumstances are serious, constitutes the crime of illegally manufacturing or selling representations of a registered trademark illegally made (Article 215 of the Criminal Law of the People's Republic of China). Chapter
IV Enterprise Dispute Resolution
I. The Basic Situation of Enterprise Dispute Resolution Involved in Complaints and Appeals Cases In handling cases, the prosecution department of complaints and
appeals found that in some cases, the parties could not accept the judgment results inconsistent with their expectations. In some cases, the parties adopt a wait-and-see and evasive attitude after the occurrence of legal disputes, allowing the proceedings to idle and losing the opportunity to use the proceedings to protect their legitimate rights and interests; in some cases, the parties do not trust professionals, lawyers and experts, and only believe in their own understanding; In some cases, the parties did not agree on a clear jurisdiction in the contract in advance, and it took a long time and a high time cost to determine the jurisdiction after the dispute arose; in some cases, the parties "lay on the right to sleep" and did not claim the right for many years, and finally exceeded the limitation period.
2. Risk warning
made by the prosecution department of complaint and appeal [risk point 32] If there is no corresponding evidence, there is a risk that the objective facts can not be fully restored through litigation.
[Interpretation and reasoning 32] Judicial work is ex post facto, the staff of public security organs, procuratorial organs and judicial organs have not participated in the whole process of production and operation of enterprises, and the parties can not reach an agreement, so the public security and judici al organs can only restore the facts of the case as far as possible according to the existing evidence and the rules of litigation, and the judicial organs can not do so. For matters without valid evidence to prove, there is a risk that it is difficult to be confirmed in litigation.
In order to prevent such risks, enterprises should raise their awareness of evidence in the whole process of signing and performing internal and external contracts, pay attention to preserving information and fixing evidence, focusing on the rights and obligations determined by the contract, the content of contract changes, and the content of contract performance; At the same time, we should treat the litigation results objectively and rationally, understand the legal provisions and litigation process, return to normal production and operation as far as possible while dealing with disputes, and reduce the losses caused by disputes.
[Risk Point 33] Unclear jurisdiction agreement will result in higher dispute resolution costs. In a dispute over
a contract or other property rights and interests, without violating the exclusive jurisdiction and hierarchical jurisdiction, the parties may, through written consultation, choose the people's court of the place where the defendant has his domicile, where the contract is performed, where the contract is signed, where the plaintiff has his domicile, where the subject matter is located, and other places that have actual connection with the dispute to exercise jurisdiction.
In order to avoid such risks, it is suggested to make an effective and convenient jurisdiction agreement or select a clear arbitration commission when signing the contract (Articles 3 and 6 of the Arbitration Law of the People's Republic of China). In judicial practice, agreements such as "the defendant's domicile" are also prone to disputes, such as the inconsistency between the habitual residence and the defendant's domicile, the inconsistency between the place of registration and the place of the main office, so when signing a contract, the jurisdiction should be as clear as possible. Avoid reinterpretation (Articles 22, 24, 34 and 35 of the Civil Procedure Law of the People's Republic of China).
[Risk Point 34] Failure to claim rights in time may lead to the expiration of the limitation period of action and the defense of the other party's non-performance of obligations. In
judicial practice, many creditors are negligent in claiming their rights, neither requesting performance from the obligor nor requesting protection from the people's court, which leads to the expiration of the limitation period of action. After the expiration of the limitation period, the obligor's defense of non-performance will be upheld.
[Prosecution Reminder 34] The prosecutor reminds us that in order to avoid such risks, the obligee should claim his rights in a timely manner, either to request the obligor to perform, or to bring a lawsuit or apply for arbitration, or to preserve valid evidence showing that the obligor agrees to perform his obligations. The limitation of action for applying to a people's court for protection of civil rights is normally three years, unless otherwise provided by law (Articles 188, 189, 192, 194 to 199 of the Civil Code of the People's Republic of China). It is worth noting that litigation is not the only solution, the two sides should negotiate and reconcile as far as possible, and can also actively choose industry mediation, Chamber of Commerce mediation, lawyer reconciliation and other ways to deal with disputes.
[Risk Point 35] Evasion of service may be recognized as "deemed service" according to law, which will result in the risk of losing one's own litigation rights.
[Interpretation 35] In judicial practice, some parties evade or refuse to accept legal documents served by judicial organs, thinking that the judicial process will not be able to continue. But in fact, after fulfilling the legal procedures, the legal documents are deemed to be served, and the judicial process will continue. If the party does not actively participate in the proceedings, he may lose the right to apply for withdrawal, counterclaim, submit evidence, debate and appeal.
[Prompt for prosecution of complaint and application 35] The prosecutor reminds that if the litigation document is refused, it shall be deemed to have been served after service, witness, record and other procedures; if the addressee's whereabouts are unknown or it cannot be served by other means, it shall be deemed to have been served after service by public announcement (Articles 89 and 95 of the Civil Procedure Law of the People's Republic of China).
[Risk Point 36] The arbitration system is final, and the same dispute will not be accepted if it is brought to the people's court again.
Arbitration is a way to resolve civil and commercial disputes, which refers to a system in which the parties voluntarily submit their disputes to an arbitral tribunal composed of unofficial arbitrators for adjudication in accordance with the arbitration agreement concluded, and are bound by the adjudication. It is worth noting that if the parties choose to settle their disputes by arbitration, the arbitration shall be final; the arbitration commission or the people's court shall not accept the application for arbitration or the lawsuit brought by the people's court in respect of the same dispute after the arbitration award has been made.
[Prompt 36] Prompt of the prosecutor: If the parties are not satisfied with the arbitration award, it is limited to the existence of legal reasons. Only by applying to the people's court for revocation of the arbitral award or applying for non-enforcement of the arbitral award in the enforcement procedure can right to relief be obtained (Article 58 of the Arbitration Law of the People's Republic of China and Article 244 of the Civil Procedure Law of the People's Republic of China).
[Risk Point 37] Overdue application for execution may result in the risk that the creditor's rights confirmed by the effective judgment can not be realized.
[Interpretation 37] If the obligor refuses to perform the obligations specified in the effective legal document, the obligee may apply to the people's court for compulsory execution, and the time limit is two years, calculated from the date of expiration of the last period of performance; if the legal document stipulates that the obligor shall perform the obligations in stages, the time limit shall be calculated from the last day of each period of performance; If the legal document does not stipulate the period of performance, it shall be calculated from the effective date of the legal document.
[Prompt 37] Prompt by the prosecutor: Overdue application may cause the people's court to refuse to execute and affect the realization of the legitimate rights and interests of creditors (Article 246 of the Civil Procedure Law of the People's Republic of China).
[Risk Point 38] Overdue application or failure to apply for property preservation may result in the risk that the judgment is difficult to execute or the property preservation cannot be renewed.
[Interpretation 38] For cases where the judgment may be difficult to execute or cause other damage to the parties due to the acts of the other party or other reasons, The parties may apply for the preservation of the other party's property, order it to do certain acts or prohibit it from doing certain acts (Articles 103 and 104 of the Civil Procedure Law of the People's Republic of China).
[Prosecution Reminder 38] The prosecutor reminds us that property preservation has a time limit by sealing up, seizing, freezing or other methods prescribed by law. The time limit for the people's court to freeze bank deposits shall not exceed one year, and the time limit for sealing up or seizing movable property shall not exceed two years. The time limit for sealing up real estate and freezing other property shall not exceed three years (Article 487 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China). An application for renewal of property preservation shall be submitted to the people's court seven days before the expiration of the preservation period. If the application is overdue or the application is not made, the legal consequences of the failure to renew the preservation may be borne (Article 18 of the Provisions of the Supreme People's Court on Several Issues Concerning the People's Court's Handling of Property Preservation Cases). The Tenth Procuratorate Office of the Supreme
Procuratorate, namely the Office of Complaints and Appeals, is responsible for accepting and examining complaints and appeals. Relying on the functional advantages of "case entrance", it comprehensively combs the complaints and appeals accepted and examined in recent years, and analyses and summarizes the overall causes and risks of complaints and appeals involving private enterprises. By actively carrying out reverse examination and insisting on the governance of the source of litigation, this paper puts forward the first legal risk tips for private enterprises, in order to help private enterprises, especially small and medium-sized enterprises, analyze and prevent the high incidence of legal risks in production and operation in advance, and escort the operation of enterprises.
First, the report of the 20th National Congress of the
Communist Party of China points out that "high-quality development" is the primary task of building a socialist modern country in an all-round way. At the same time, we should "optimize the development environment of private enterprises", "promote the development and growth of private economy", "support the development of small and medium-sized enterprises", and focus on "optimizing the business environment". While fully performing its procuratorial functions according to law and handling every complaint and appeal case with high quality and efficiency, the procuratorial department of complaint and appeal of procuratorial organs takes judicial practice as a sample for analysis, analyses the litigation risks of private enterprises found in the process of handling cases, and gives prior legal risk hints with a view to jointly building a more fair, stable and transparent one. Protect the legitimate rights and interests of private enterprises and jointly promote high-quality development. The
compilation and release of "Enterprise Legal Risk Tips" generally combs the risk points of enterprises according to two logical main lines:
First, the main line is the high risk reflected by judicial practice. The high incidence of civil and criminal risks runs through it, highlighting the characteristics and needs of most enterprises, especially small and medium-sized enterprises. The summary of each risk point is based on a large number of real cases, and the relevant legal norms are guided.
Second, take the daily production and operation of enterprises as the main line. From "signing and fulfilling contracts with foreign enterprises" to "guaranteeing external financing of enterprises", to "internal management of enterprises", to "dispute resolution of enterprises", it responds to the needs of enterprises in an all-round way.
2. Summarize the problems found and put forward suggestions
to deal with them. In this risk reminder, the procuratorial organs analyze the causes and risk points of complaints and appeals involving private enterprises.
(I) Analysis
of the causes of cases In recent years, the number of complaints and appeals involving private enterprises has generally shown an upward trend, and the relevant enterprises may feel the dual pressure of production and operation and dispute settlement. Through the analysis and induction of the cases and the overall portrait of the enterprises involved, two problems can be found.
First, the legal awareness of some enterprises is still relatively weak, and there is a lack of systematic and effective risk prevention system. Generally speaking, a considerable number of enterprises, especially small and medium-sized enterprises, have weak legal awareness, lack of effective self-protection awareness, and lack of "bottom line can not be touched" boundary awareness to a certain extent, which often leads to irreversible consequences. Because of this, the prosecutors of the prosecution department of complaints and appeals often have a "sense of powerlessness" in the process of handling cases, and often reflect that if the enterprises involved can take early precautions, take early measures, stop losses as early as possible, and stop as early as possible, the consequences will be completely different, the losses will be more likely to be recovered, and the enterprises will not. The relevant person in charge will not be involved in criminal responsibility. For example, some enterprises have already discovered the abnormal behavior of the other party's enterprise at the initial stage of signing or fulfilling the contract, but still do not take effective measures in time to deal with it, resulting in the expansion of losses or even unable to recover; for example, some enterprises do not pay attention to the timely application for trademark registration, after being registered by others, even if it is declared invalid afterwards, there is no retroactive effect on the previous judgment; For example, some enterprises ignore the important role of the articles of association, simply download the template for registration or do not change in time, resulting in the lack of effective protection of disputes in external business activities; For example, some entrepreneurs have weak legal awareness, their understanding of enterprise property is still at the stage of confusion with personal property, taking advantage of their position to take enterprise property as their own, suspected of occupation, and so on.
Second, the ability of self-rescue after legal disputes is weak. When legal disputes occur, it is not the right way to evade and shirk responsibility. Only by actively seeking the help of professionals and relevant departments and actively participating in legal procedures, can it be possible to minimize the impact of legal disputes on enterprises. However, due to the lack of prior and effective awareness of legal risk prevention, some enterprises can not deal with disputes rationally, legally and effectively after falling into litigation. They use the way of delaying, evading or even actually causing losses to expand to deal with disputes, dragging enterprises into the quagmire of dispute settlement, which not only fails to properly handle disputes, but also thoroughly affects the production and operation of enterprises; Some enterprises are afraid of being enforced after civil disputes, and take improper actions such as intentional transfer of property, which lead to being included in the list of discredited executives, affecting normal operation, and even constitute the crime of refusing to execute judgments and convictions.
(2) Analysis of
case risk points Through a comprehensive analysis and reverse examination of complaints and appeals involving private enterprises, the procuratorial organs found that the high risk of litigation-related cases is in the four major areas where the production and operation activities of enterprises are concentrated: the first is the link of signing and fulfilling contracts by enterprises, and the second is the link of guaranteeing external financing by enterprises. Third, the internal management of enterprises, and fourth, the settlement of enterprise disputes.
First, in the process of signing and fulfilling contracts with foreign enterprises. When handling complaints and appeals,
the procuratorial organs found that many enterprises involved in the case had buried hidden dangers from the beginning of their external operation and signing contracts. In some cases, the parties thought that they had signed contracts with the other party's enterprises and paid accordingly, but in fact, the signature and seal of the other party could not represent the enterprises; In some cases, in order to obtain orders, the parties give the other party's handling personnel the benefit of non-entry; in some cases, the parties still do not sign a written contract when concluding a large contract on the basis of trust in small economic exchanges for many years, and when disputes arise, both parties stick to their own arguments, which is difficult to prove; In some cases, during the performance of the contract, the parties find that it may be difficult for them to perform their contractual obligations, resulting in the intention of luring the other party to continue to perform the contract and defrauding the other party's property; in some cases, the parties signed a contract with some blank contents, which were filled in by the other party without confirmation by both parties and increased their obligations; In some cases, the parties find that the other party breaches the contract and think that they should be exempted from all the losses incurred, so they allow the losses to expand; in some cases, the parties change the contract according to the actual needs during the performance of the contract, but fail to confirm the workload of the change, resulting in huge disputes in the settlement.
Second, in the enterprise external financing guarantee link. When handling complaints and appeals,
the procuratorial organs found that enterprises generally have strong financing needs and gaps, and often pay a higher price and bear greater risks in order to achieve financing. In some cases, the parties provide guarantees for other enterprises carelessly, resulting in heavy debts, which eventually lead to the transmission of risks to regions and even industries; in some cases, the parties bear high hidden costs and additional conditions to obtain loans, fail to assess risks in advance, and are involved in the debt quagmire, triggering a chain reaction and breaking the capital chain; In some cases, the parties fail to meet the contractual conditions in financing, triggering the terms of share repurchase, and the founders are out; in some cases, the parties provide financing guarantees in the form of equity transfer, which makes it difficult to prove and lose control of the enterprise; In some cases, in order to make up for the huge fund gap, the parties even absorb the personal funds of the public by means of high interest rate and oral transmission, which constitutes the crime of illegally absorbing public deposits.
Third, in the internal management of enterprises. When handling complaints and appeals,
the procuratorial organs found that some enterprises involved, especially some small and medium-sized enterprises, had chaotic internal management. In some cases, in order to maintain the flexibility of external business behavior, the company's seal custody and seal management are relatively loose, and no strict seal management system has been established, which leads to the frequent occurrence of seal competition and true and false seals; In some cases, the shareholders' meeting held by the enterprise fails to form a legal and effective resolution of the shareholders' meeting, resulting in the resolution being questioned after the actual implementation, which can not be used as a legal basis for resolving differences; in some cases, the company's property is confused with the property of shareholders or actual controllers, abusing the independent status of the company as a legal person; In some cases, the property accounts of shareholders and companies are not clear, the transfer and reimbursement processes of enterprises are not standardized, the financial data of enterprises are not transparent, and the tax invoices are not standardized; in some cases, the actual investors invest anonymously, the prominent shareholders dispose of their equity, transfer it many times, and the equity even "evaporates out of thin air"; In some cases, the company's articles of association simply apply the template, which is not applicable to the disputes in practice, or the change of the articles of association is not registered in time; in some cases, the employees who leave the company still hold the authorization and entrustment procedures printed by the enterprise and sign the contract with the outside. In the field of intellectual property rights, a large number of enterprises do not attach importance to the protection of their legitimate rights and interests. In some cases, enterprises did not apply for trademark registration in time, but were applied by downstream enterprises, which not only involved civil compensation, but also may constitute a criminal offence; in some cases, enterprises had no awareness of rights boundaries, knowing that it was an infringement of the exclusive right to use registered trademarks, but still provided warehousing and other services, knowing that the goods were counterfeit registered trademarks, but still sold them.
Fourth, in the enterprise dispute resolution link. When handling complaints and appeals,
the procuratorial organs found that in some cases, the parties could not accept the judgment results inconsistent with their expectations, and after the exhaustion of the proceedings, they still defended their rights endlessly, completely ignoring the operation of enterprises; In some cases, the parties adopt a wait-and-see and evasive attitude after the occurrence of legal disputes, allowing the proceedings to idle and losing the opportunity to use the proceedings to protect their legitimate rights and interests; in some cases, the parties do not trust professionals, lawyers and experts, and only believe in their own understanding; In some cases, the parties have not agreed on a clear jurisdiction in the contract in advance, and it takes a long time and a high time cost just to determine the jurisdiction after the dispute arises; in some cases, the parties "lie on the right to sleep" and have not claimed the right for many years. Through a comprehensive analysis of complaints and appeals, the
procuratorial organs found that the legal risks of private enterprises are mainly distributed in the above four areas due to the concentration of daily production and business activities. On this basis, four chapters of "risk points", "interpretation and reasoning" and "prosecution and prosecution tips" are summarized, which can be applied to most situations. We are committed to working together with private enterprises and private entrepreneurs to build a more fair, stable and transparent legal business environment and help enterprises protect their legitimate rights and interests efficiently according to law.
3. Work plan
for the next step The Supreme People's Procuratorate has always emphasized the legal and equal protection of all kinds of market entities, but judging from the acceptance and examination of complaints and appeals, private enterprises as the subject of complaints and appeals still account for the absolute majority of enterprise complaints. Since February this year, in view of the prominent problems reflected by private enterprises, such as the criminal treatment of civil disputes affecting the normal operation of private enterprises, the abuse of compulsory measures against private entrepreneurs, the abuse of seizure, seizure and freezing measures against the property of private enterprises, the protracted handling of cases, the overdue handling and the illegal disposal of the property of private enterprises, etc. The Supreme Procuratorate has organized special actions for the judicial protection of private enterprises led by the procuratorial departments of complaints and appeals throughout the country, focusing on the filing and examination of the cases involved, and centralized management by means of key handing over and listing supervision, so as to effectively safeguard the legitimate rights and interests of private enterprises through timely supervision and correction according to law. To help private enterprises develop healthily. In the past and in the future, the complaint and appeal procuratorial departments of procuratorial organs will handle every complaint and appeal case with high quality and efficiency, protect all kinds of subjects according to law and equally, promote the organic unity of handling quality, efficiency and fairness and justice, and make the people feel that fairness and justice are around them.
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