Case referee rules analysis (a)

The referee rules analysis (a case)

□ special legal commentator Shi Anning

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The case guiding system and judicial justice

Recently, the CPC Central Committee on deepening the reform of some major issues of "decision" issued, which relates to the judicial reform and enhance the important content of the public credibility of the judiciary.

In fact, since the president of the Supreme People's court in 2013 March. Zhou Qiang office is repeatedly stressed, the courts at all levels shall closely around "to let the people in each judicial cases all feel justice" work objectives, firmly grasp the justice for the people of justice as the main line. Clearly put forward the new request to the judicial justice and improve judicial credibility case.

The author thinks, case study especially rules guiding cases in the Supreme People's court, has the extremely important value to the applicable law of unity and strengthen the reasoning of the judgment documents. Construction of the public credibility of the judiciary in fact comes from every "individual justice" pursuit, leaving the "individual justice" and talk about the credibility of the judiciary is obviously a passive water type argument.

At present, the judicial practice more and more attention to functional reasoning judgment documents, put an end to the "judgment unreasonable" has become a consensus of justice. November 16, 2013 "people's court" published report of the Supreme People's Court judicial reform office director He Xiaorong "new chapter" opened the judicial reform history of a text, this paper precisely pointed out "people's court as special trial organ of the state, must be to judge as the main body, the trial as the center, the referee for the product". Obviously, the "product" is qualified or not, and whether the "reasonable" is directly related to. This can truly embody the "let the judge referee, operation rules for judicial power science" by judges.

During the early implementation of the "two five" judicial reform "Outline", the Supreme People's Court issued the notice on strengthening the work of the civil judgment "in June 27, 2006". Requirements of adjudicative document must enhance the reasoning rule, and strive to "legal reasoning, it is clear". For the parties to the focus of controversy, to elaborate the reason, Chinese local judgment documents. Not only to the entity judgment reason is expounded, and adoption of evidence or not, try to make the court judgment as to the public display of an important carrier of judicial justice image, vivid textbook of legal education. Visible, have importance of individual justice is the common pursuit of legal occupation community.

Case law case guidance system in China and the common law system is different, the latter has the legal origin, characteristics, and the former is to guide the judicial practice as much as possible to the legal spirit are unified in the case, in order to solve the long-standing problem of "co different sentence" malpractice.

The guide case refers to the Supreme People's court case guidance office for review by the Supreme People's court and the judicial committee for discussion and decision after unification in "Supreme Court bulletin", the Supreme People's court, the people's court website "newspaper" to "notice" issued in the form of case. Obviously, the effectiveness of guiding cases with authority and "quasi judicial" legal documents. At present, the Supreme People's court has announced the 4 batch of 16 pieces of guiding cases, involving the judicial field of civil, administrative and criminal trial.

The author thinks, the main judicial value of guiding cases there are four: one is the legal system of certain types of cases involved are too principle or the existence of gaps in legislation, the guiding case has a certain category "case law"; two is the case itself has a high degree of social concern or referee content, has guiding function to regulate people's behavior and social values; the three relates to the applicable law of complicated or in need of a new trial to certain norms; the four is to strengthen the same type of the case of "reasoning" function. (to be continued)

Case the referee rules analysis (two)

□ special legal commentator Shi Anning

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With reference to the application of the rules in the case

The Supreme Court issued "Regulations" directing work on the case in November 26, 2010, reflect two important institutional values.

One is to strengthen the unified application of law, improve the quality of judgment, justice principle.

The fundamental motivation of case guidance system is to adapt to the specific needs of the fair treatment of various cases, unity of principle and flexibility of law, unity of equality and diversity, realizes the unified scale and judicial justice case, thus providing realistic version for the reconstruction of the judicial authority support.

The two is for guiding cases, the people's courts at all levels shall refer to the trial of similar cases "".

The author thinks, the so-called "refer to the case" essentially refers to the specific reference to judgment thinking, a case of the rules, the spirit, and not on the whole "case" reference, more should not interpret out of context on the judgment rule. Otherwise, will likely make cases into mechanization of a case to apply. At the same time, "reference" is "mandatory" and universality, when a party as the enhanced clearly according to their own claims of judicial power, on whether it should be reference to make a clear conclusion. In short, the courts at all levels in the referee should be "reference" or at least not obvious violation of both the guiding case in judicial rules.

The author thinks, the referee rules refer to the following situations shall be taken into consideration.

First, the case facts and evidence collection according to the rules.

The fact judgment and the applicable law is the two task correctly exercise the judicial power is the most important. At present, although the civil rules of evidence, in criminal cases have illegal evidence exclusion rules and other rules of evidence, but in the complicated legal case, the written rules of the total lag. The guide case or embodied in other cases the facts and evidence admissibility rules can be in the case of "reference". Note, the admissibility of evidence rules in the case of current evidence rules is unknown clear, can also be extended with the development of the existing rules of evidence; or, in the absence of the rules of evidence in the case can be based on the spirit of the legislation procedure and rules of evidence to "create" the admissibility of evidence rules.

"Facts" are divided according to the evidence to direct "confirmation" of the facts and evidence rules to the "presumption" facts. The text of the contract if the former contract dispute, can be used to directly determine the contract dispute case "facts"; if the latter according to the rules of burden of proof to the presumption of a claim"Set up" or "not established". It should be said, this according to the "presumption" and confirm the facts of the case evidence rules and according to the direct determination of the facts that rules have the same legal effect. In addition, approach to the affirmation of the legal fact according to the "daily life experience rules" of the existence of the case. Effects of the rules of evidence despite weaker than the first two rules of evidence, but also can be used as a legal case fact judgment basis.

Second, to refer to the relevant legal system, legal principle and legal spirit in the case.

In the written law legal system, the legal system and legal norms of achieving "specific" or "clear" are often the legal occupation community character. However, limitations of the legislation or the legal system itself is difficult to meet the requirements of legal person. Therefore, in the case of existing legal system, legal principle and legal spirit also becomes in the case the powerful reference. Especially when there is conflict or legal system are too principle even blank of the legislation, "judge made law" with "more value the living law". (to be continued)

Case the referee rules analysis (three)

□ special legal commentator Shi Anning

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With reference to the application of the rules in the case

The author thinks, legitimacy the judge quoted legislation in legal cases and elaborates on the application of law must pay attention to their own rights.

The case of the existing legislative spirit, legal system and its effect on legal interpretation should be based on the above, shall follow the related rules of the legislation law. The Supreme People's Court promulgated and implemented since November 4, 2009 "about the judgment cited laws, regulations and other normative legal documents" clear requirements, there is a conflict between people's court judgment documents needed to refer to normative legal documents, unable to choose suitable according to legal provisions related to the legislative law, shall draw a decision authority to decide, not self in the judgment, validity of normative legal documents.

Third, the universal case suitable effectiveness and to refer to the general judgment rules.

The fundamental purpose of the case guidance system is to put those with unique value of case, abstract, released to improve up, give full play to the unique case guidance, demonstration effect, makes the judicial practice can learn from reflected in these cases the referee rules and legal thinking, and referring to the characteristics of the spirit of guiding case, fair handling of the case, provides the support for the construction of judicial authority.

The author thinks, the guiding case "the referee essence" and other guidance value not only for the inductive case processing summary of the rules, but should be derived from the case and higher than the case. Should from the case of "special" in the abstract case "general" guidance value, so that the case has the effect of similar cases "pervasive" law.

Fourth, the special rules of correct cognition in the case.

The core value is case with guidance and reference for the same type of cases. Special rules if a judge rules apply only to the case, only with the "one-time" instead of "universality" of the value, then the class rules should not be as a case to invoke judicial rules.

Fifth, pay attention to the level of the legal effect of judge rules.

On the law effect of level, legislation law and the Supreme Court have made provisions in principle, namely in the coordinate reference multiple normative legal documents, shall be in accordance with the effect of level laws and legal interpretations, administrative regulations, local regulations, autonomous regulations or specific regulations, judicial interpretation was quoted. At the same time, refers to two or more laws shall be cited, the basic law, cited other laws. References including the substantive law and procedural law, the first use of the substantive law, procedural law after the reference.

Sixth, more attention should be paid to cover the case type.

The author thinks, "case guidance system" to play the role of guidance and extensive, it must pay attention to the wide coverage of the case type, quantity not only pursue cases. Because, if the case base with a huge number of the case type does not have broad representation, coverage and typical case guidance system, then play the unity of the spirit of the law "guidance" value is very difficult.

Seventh, pay attention to the discrimination of the defects in the case of thinking.

Needless to say, in any case they may exist defects. The defects include cognitive aspects including the legal application. Therefore, scientific and rigorous academic attitude we study cases in judicial rules must pay attention to its legitimacy and rationality research.

This series of papers will be based on the real case to specific to the referee rules launches the research from the next, case scope resolution includes guiding case and "bulletin" published case, also includes other general case, induction and analysis and the judgment rules may involve multiple legal field in the same case, it is comprehensive.

(to be continued)

Case the referee rules analysis (four)

□ special legal commentator Shi Anning

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The enterprise registration properties and judicial determination of (a)

This period by two similar case studies of individual proprietorship enterprises by the judicial judgment to the partnership enterprise after the relevant legal issues. Including: in a sole proprietorship enterprise can confirm the existence of investment partnership; enterprise conflict and solution between the nature of industrial and commercial registration and judicial cognizance of the road; the apparent agency (see table representatives) and the original subject of the right of disposition rights conflict validity problems.

The source case one: the Supreme People's Court (2012) and a final civil judgment (No. sixty-fifth in 2013 fifth the Supreme People's court "bulletin").

The core of the Supreme People's court case fact: Wang Jiangang is the subject of investment is registered as a Chen Guoping "individual" mining enterprises "Dayuan mining factory", but the transfer act of disposition is made by Chen Guoping husband Yuan Yongle; then the king Jiangang and Wang Yongan who signed a partnership agreement, agree to jointly operate the mining enterprise after investment; Wang Yongan did not recognize Wang Jiangang partnership and partnership interests, denied that the Wang Jiangang effect the behavior at Yuan Yongle and the subject of investment Dayuan mining factory by the industrial and commercial registration for his own "personal owned"; the mining enterprises have been independently operated by Wang Yongan, Wang Jiangang and refused to distribute the profit after the king Jiangang to Shanxi; the high court to bring an action in tort, the first trial confirmed the Dayuan mining plant partner status and partnership share, ordered Wang Yongan to pay the corresponding operating profit.

Both sides of the case are filed an appeal, the Supreme People's Court of second instance upheld.

The source case two: the Luoyang City Intermediate People's Court (2011) Luo min final word 1391st civil judgement.

The core of Luoyang intermediate people's court case fact: Han Huiqing four partnership with Li Xuefei the industrial and commercial registration system from the "beam Wuzheng" the natural person "individual" enterprise "Songxian grand China lead"; agreed by Li Xuefei as a partner who is responsible for, five signed a written partnership agreement; but Li Xuefei's partner Liang Wuzheng and the original investors registration does not transform the nature of enterprises, nor will Han Huiqing and four other partners for business registration, but still the mining enterprise registration for the "Li Xuefei" of the sole proprietorship enterprise, after Han Huiqing and other four to partnership dispute lawsuit.

Henan Luanchuan County Court of first instance (2010) Luan people two at the beginning of 248th civil judgment. Confirmation: signed between the plaintiff and defendant Li Xuefei Han Huiqing and other four partnership Songxian grand China lead the contract, is to reach all the partners on the basis of consensus, the partnership contract on specific matters, the plaintiff and defendant in the grand China Partnership lead made a detailed agreement, the contents of the contract is not in violation of the provisions of the relevant laws, the partnership contract. Text of the judgment is: one, the original defendant in September 26, 2007 signed a partnership contract legally effective; two, the Han Huiqing, Du Weidong, Jia Jiansheng, Liu Degang, according to the law on partnership Songxian grand China mineral rights stipulated in the contract and assume the obligations stipulated in the contract.

Luoyang then think, the case for action of confirmation, the contract is the true meaning of each partner, content is not in violation of the relevant provisions of the law, should be effective contract; each partner should be based on the contract agreed in the Songxian grand China lead enjoy the rights and obligations, so to "maintain the final judgment of the original".

It should be said that, to make the Luoyang intermediate people's court case in the Supreme People's court case, but the referee thought has a forward-looking obviously, and the correctness of the Supreme People's court in the case of all fully approved.

Comparative study of the two cases, the name registration for individual owned enterprises but is caused by the partnership property investment legal relationship disputes, the judgment thinking through analysis, abstract, ascension can pass the application of general rules, this point to be the analysis.

Case the referee rules analysis (five)

□ special legal commentator Shi Anning

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The enterprise registration properties and judicial identification (two)

(this series)

Through the analysis on the two cases, it can use the rules of application.

First, the judicial decision has the right to recognition and change of business registration properties.

Supreme Court case in the judgment thinking that: Wang Jiangang, Wang Yongan and other three people signed a "partnership agreement" behavior, will mean Dayuan mining factory enterprise property from individual proprietorship enterprises "transition" as a partnership enterprise; enterprise management changes from individual business risk and liability for the partnership; the enterprise shall be borne by the original individuals into three people sharing. The nature of enterprise, management mode and responsibilities change, not for the law expressly prohibited. Based on the above, "partnership agreement" should be regarded as effective in accordance with the law.

The author thinks, the judicial practice has approved the following judgment thinking: when the sole proprietor change and need to confirm the new investment interests subject, not to the industrial and commercial registration is the only element. Generally speaking, the nature of the enterprise is directly determined by the industrial and commercial registration. However, the legal attribute when the enterprise investors or investment changes the nature of the enterprise, which lead to inevitable changes, changes in industrial and commercial enterprises are not yet completed property registration shall attribute to substantive civil legal relationship is judged, not by the industrial and commercial registration "present" to deny the legal attribute of the civil subject of investment.

The rationality of the existence of the rule from the current judicial interpretation can be confirmed. According to the company law judicial interpretation, the Supreme Court has made clear in the judicial practice can be conditionally admitted that enterprises exist "dormant shareholders" legal effect, it implies the existence of "legal space dormant partner" in individual proprietorship or partnership.

The Luoyang intermediate people's Court of first instance cases, Luanchuan county court in the way of expression also has a high degree of scientific. The first directly to confirm the validity of the contract; the nature of the enterprise of industrial and commercial registration for the "individual" Songxian Hong Weihua lead directly identified as "the partnership enterprise". It should be said, this is the classic writing confirmation, for similar cases since then as a case for reference.

Second, "partner conference resolution" such legal documents management, is the basis for the operation of the partnership; and is also the fundamental basis disposal enterprise business registration properties and judicial conflict.

Said the Supreme Court case, signed by a party "United Company meetings" in Dayuan mining factory organization, production management, financial management and other aspects made specific provisions. All parties to participate in the board of directors, forming a "board minutes" matters, poetic couplet fit team, factory investment way has made the parties signed the "agreed, board minutes". In addition, the parties to the partnership meeting, on both sides of upfront investment capital, has to recover investment funds, profit distribution formed a "share recognition and allocation scheme", Wang Jiangang, Wang Yongan signed the "subscription confirmation and assignment scheme". The above evidence can be found, since the signing of "partnership agreement", both sides involved in the establishment of the management organization Dayuan mining plant, the management personnel, organization of the Dayuan mining factory production and foreign sales, and participate in the distribution of Dayuan mining factory profits, "partnership agreement" has been the actual performance.

The identification showed the highest court judgment thinking is, partners to make a series of decisions or agreements are basis for processing all the substantive rights. The author thinks, in the "summary" or "program" although the name is not the crown by "the partner conference resolution", legal effect but in fact it has Partner Conference "resolution". (to be continued)

Case the referee rules analysis (six)

□ special legal commentator Shi Anning

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The enterprise registration properties and judicial identification (three)

(this series)

The Luoyang intermediate people's court case and the Supreme Court case and the parties did not request the court to allow its right to the nature of the enterprise directly "matters of industrial and commercial registration system" as the content of. This will lead to judicial decision is made, there must be a direct conflict between enterprise nature and industrial and commercial registration of the enterprise property decision content determined. Then, in the confirmation of enterprise property exactly what effect?

The author thinks, obviously higher than the industrial and commercial registration validity of judicial decisions. Moreover, the partners' meeting "resolution" per capita is legally binding on the partnership and the partnership, it is legal according to the nature of business registration and subsequent transformation of business management.

At this point, the only legitimate way of solving conflicts of judicial decisions and administrative registration is a partner in a resolution of the meeting, the business license of a sole proprietorship enterprise registration, the enterprise nature "correct" registered partnership. Moreover, the original negative enterprise system "partnership" nature of the party has no right to enterprises "transformation" decision to veto opinion, otherwise is equal to veto the court verdicts of enterprise nature.

In the specific administrative restructuring registration procedures, the measures for the administration of registration of partnership enterprises did not set "the correction registration" system, the implementation of judicial confirmation judgment registration procedure should be, without change, not of a sole proprietorship enterprise liquidation, the partnership "registration" and "registration" at the same time. Obviously, the Department of industry and Commerce for conflicts to solve the judicial confirmation and administrative registration, not mechanically that the parties must apply for registration of establishment, or can only apply for registration of change. But not with the application of the parties concerned matters unknown and made the specific administrative act shall not be accepted or not registered. Otherwise, Deng to completely overhead or rejected the judicial confirmation of the validity of the judgment.

Third, in the judicial confirmation decision is made but not yet completed the "transformation" industrial and commercial registration, do not deny that the partners in the form of "individual" business partner role.

Said the Supreme Court case, in accordance with the sole proprietorship enterprise law the fifteenth regulation, the sole proprietorship enterprise during its existence registration of the change, should the decision on the change within fifteen days from the date according to the registration authority to apply for registration of change. The parties signed the "mining factory transfer agreement", though not on Dayuan mining factory change investors to industrial and commercial registration authority to apply for registration of change, but change of registration does not belong to the transfer of preconditions for effective, not for the change of registration, in accordance with the law shall be subject to appropriate administrative penalties, but does not affect the validity of transfer. A sole proprietorship enterprise law article fifteenth shall be regarded as the management norms and non mandatory norms. Based on the above, Wang Jiangang and Yuan Yongle signed the "mining factory transfer agreement" shall be deemed to be valid grounds for appeal, Wang Yongan proposed "mining factory transfer agreement" null and void, the court shall not support.

The Supreme Court that at the same time, Wang Yongan to the local administrative department for Industry and commerce to apply for registration of alteration, the Dayuan mining factory investors change registration for Wang Yongan, but not Wang Jiangang registered for investors, as well as the investor has infringed the lawful rights and interests of the.

The author thinks, the industrial and commercial registration only publicity effect without right or set of rights, these rights exclusively belonging to the shareholders and partners meeting decision mechanism, the enterprise registration status and real right is not absolute correspondence.

According to the Supreme Court of Luoyang intermediate people's court judgment thinking, Li Xuefei in the case of the change of registration for partnership enterprises in Songxian grand China lead still registered as the "sole" enterprise, apparently to Han Huiqing as the four partner of the infringement, Li Xuefei's behavior is illegal behavior of a typical violations of other co investors rights and interests. (to be continued)

Case the referee rules analysis (seven)

□ special legal commentator Shi Anning

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The enterprise registration properties and judicial identification (four)

(this series)

Fourth, the text of the contract signing separation of subject and practical subject of right, the right people can have "interested" and become the subject of litigation and the rights and interests of a real bear.

Said the Supreme Court case, "mining factory transfer agreement" column the Ming agreement although Dayuan mining factory and Xin Sheng, Yuan Yongle, Wang Jiangang signed the agreement, Xinsheng company built official. However, from the signing of the agreement and later signed the "partnership agreement", the "supplementary agreement" and other related documents and these documents to the partnership situation, is performed by Wang Jiangang and the signature, so Wang Jiangang has a direct interest in the case, has the qualification of subject of action against the original.

It is known from the above judgment thinking, when the nominal subject agreement in the text and the actual rights under different time, the actual successor in interest is entitled to have a stake in the grounds to be proper subject of litigation, which means that it has the right to take lawsuit risk and obtain the interest of litigation.

Of course, the court's ruling may be thinking is challenged in judicial practice. The separation agreement subject and practical subject of rights, in litigation and litigation benefit acknowledged that the human rights situation, if the agreement signed on behalf of the body also claim rights, interests conflict with the interests of the how to solve? The author thinks that, unless the parties of the agreement does not exclude the practical interests of the legal status of the agreement, otherwise shall be subject the rights of priority protection.

Fifth, confirm the investors shall generally be determined by industrial and commercial registration, but the formation of the apparent agency and the apparent actual controller represents the legal relationship of the enterprise can be a legitimate right to dispose of the body.

The Supreme Court case, effect of Jiangang Wang and Yuan Yongle signed the "mining factory transfer agreement" is concerned, the Supreme Court held that: first, investors in the business sector registered in 2001 April initial source mining factory is Chen Guoping, but in 1999 Chen Guoping will go through the formalities of migrants abroad from 2001 to 2003, before Yuan Yongle signed in July "mining factory transfer agreement", has been the actual control and management Dayuan mining plant, local villagers know only the mine owner Yuan Baze (Yuan Yongle), so the mineral called "yuan Baze mine", do not know Chen Guoping, and Yuan Yongle and Chen Guoping for the relationship between husband and wife, so Wang Jiangang has reason to believe that Yuan Yongle has the right to dispose of Dayuan mining plant, transfer behavior constitute Yuan Yongle's apparent agency.

Second, to see from the transfer agreement, "mining factory transfer agreement" signed in September 15, 2006 during the three years after the signing of Wang Yongan to "Dayuan mining factory overall transfer agreement", Chen Guoping did not put forward any objections and claim their rights, should be regarded as the transfer of Yuan Yong music be the default.

It can be concluded from the above judgment thinking: the apparent agency or apparent representative form, especially be confirmed in its legal effect, even if the rights of indigenous people are not entitled to veto, or equal to the overhead system of the two law of contract is equal to the loss, the agency and the apparent representation system existence foundation the.

Sixth, the rational use of problem identification and evidence rules about operating profit.

The Supreme Court case, the court of first instance of Shanxi Province Higher People's court applied the "Supreme People's court" several regulations about the civil action evidence seventy-fifth rules of evidence, the evidence proves that a party has the evidence refuses to provide evidence, if the other party claims that the evidence is against the holder, it can be presumed the proposition.

The Supreme Court in a two trial did not again for the rules of evidence, but the verdict "apply the law correctly, the conclusions of the review shall be maintained" is directly recognized in similar cases can be directly to the "Supreme People's Court on a number of provisions of civil procedure evidence" of seventy-fifth as confirming evidence responsibility and substantive interest allocation rules.

Moreover, the Supreme Court held that, because of Wang Yongan during the first trial before the 2004 April to 2006 declined to provide a source of mining factory July production of financial accounts, the court of first instance according to "determine the share recognition and allocation scheme" as the amount of calculation of profit distribution basis, no when.

The author thinks, the judgment thinking means the amount of profit can be confirmed in accordance with the agreement of the parties "expected interests" amount. Obviously, the rules of course can be extended to other cases as a general rules to apply. (in this case analysis.)

Case the referee rules analysis (eight)

□ special legal commentator Shi Anning

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Company dissolution lawsuit rules (a)

Company dissolution lawsuit legal start is based on the "deadlock" serious and can not be resolved. Deadlock is not the essence of the company's own problems, but because of a dispute state failure, decision-making mechanism caused by the shareholders, directors and other conflicts.

This manuscript by the Supreme People's court in April 9, 2012 announced the second batch of guiding case No. eighth -- "Lin Fangqing v. Changshou City Kailai Industrial Co. Ltd., Dai Xiaoming company dissolution case" to analysis the company dissolution litigation shall correctly applicable rules.

The guiding case referee gist is: 183rd the company law ", there are serious difficulties in the operation" as one of the shareholders lodge a company dissolution suit conditions. The judgment of "business management is serious difficulties", a comprehensive analysis of the running status of the organization from the company. Although the company is profitable, but its shareholders will be the long-term failure mechanism, the internal management with severe disabilities, has come to a deadlock state, can be identified as the company management difficulties. In accordance with the provisions of the company law and other related judicial interpretation, the people's court may adjudicate according to law the dissolution of a company.

Conclusion: the Jiangsu high court that, Kailai has been in accordance with the company law and the "company law" (two) the provisions of the shareholders lodge a company dissolution suit conditions. From the fully protect the legitimate rights and interests of the shareholders, a reasonable standard of corporate governance structure, promote the healthy and orderly development of market economy point of view, the revocation of the first instance judgment about "Lin Fangqing rejected the claim", the judgment shall be amended according to the dissolution of Kailai company.

First, the main features of the plea that the company dissolution litigation.

Appeal the plaintiff Lin Fangqing guidance in the case of the Supreme People's Court: the defendant is Changshou City Kailai Industrial Co., Ltd. (hereinafter referred to Kailai) has serious difficulties in operation and management, in the company deadlock and cannot be solved by other methods, its rights and interests suffered major damage, request to dismiss Kailai company; justification of this case the accused Kailai company and the actual control of the company shareholders Dai Xiaoming: Kailai is the company and its subsidiaries operating in good condition, do not meet the conditions of the dissolution of the company, the conflict between Dai Xiaoming and Lin Fangqing have other solutions, not by judicial procedures of compulsory disbandment of company.

Through the comparative study of the above can be both parties claims and defenses that features all plea claims: the legal requirements for dissolution of the company one of the quoted according to the "serious difficulties" company management, the emphasis is the corporate governance decision-making mechanism failure, cause the company to come to a deadlock against the dissolution of the company; one often says "the company in normal operation, but also have profit; the company can normal tax, but also to employees can be a normal wages", so do not constitute a "dissolution conditions have serious difficulties" of corporate management.

Obviously, these two kinds of claims and defenses focus reflects a core rules the company dissolution litigation is the essence of how to correct cognition ", the company management has serious difficulties in" the statutory requirements.

Second, special ownership structure leads to the deadlock once formed, it is difficult to break through the self reliant relief.

Equity governance structure of the Supreme People's court accused of guiding cases of Kailai company is: Kailai, only the plaintiff Lin Phuong and Dai Xiaoming third people, two shareholders, each accounted for 50% of the shares; third Dai Xiaoming as the legal representative of the company and executive director, Lin Fangqing was appointed general manager of the company and company board of supervisors.

Provisions of the articles of association of the company: Kailai, the resolution of the shareholders meeting to vote by the shareholders representing 1/2 or more of the company, but to make resolutions on the increase or reduction of registered capital, merger, dissolution, change of the company form, modifying the articles of association of the company, must veto by shareholders representing 2/3 or more of the table. Shareholders' meeting shall exercise their voting rights in accordance with the proportion of investment.

It can be presumed, the equity voting mechanism in the "1/2" could not include "the number". Because once including "1/2" the number, any party may alone make effective corporate resolution; when the other party is not willing to implement the resolution, can be alone again to make effective decisions completely contrary to previous resolutions. So move in circles, the company essentially no effective resolution for execution.

The author thinks, the company special ownership structure has obvious "congenital" flawed, because in the special equity ratio of each accounted for 50% of the cases, unless the parties agree otherwise some matters, either party can veto any proposed each other, resulting in the company deadlock once formed is difficult to break the relief way, appeal the dissolution of the company is almost the only feasible way to resolve the company deadlock.

Case the referee rules analysis (nine)

□ special legal commentator Shi Anning

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Company dissolution lawsuit rules (two)

(this series)

The previously discussed, in particular the equity ratio each accounted for 50% of the cases, the cause of corporate deadlock difficult to break, filed for dissolution of the company is almost the only feasible way to resolve the company deadlock.

Typical cases of the Supreme People's court identified dispute facts can prove the above conclusion.

Such as, the court found: contradiction since 2006 Lin Qing Fang and Dai Xiaoming between two people gradually. Lin Fangqing proposed and notice convening a meeting of the shareholders, because Dai Xiaoming did not believe that Lin Fangqing had a right to convene a meeting, the meeting failed to hold. Lin Fangqing lawyer Kailai repeatedly to the company and Dai Xiaoming letter said, infringed by shareholders, Lin Fangqing as a 1/2 vote will be the shareholders of the company shareholders, according to the company's articles of association has procedures for voting and through the dissolution of Kailai resolution, wanted Dai Xiaoming to offer Kailai the company's financial records and other information, and for liquidation Kailai company. While the actual control of the company's shareholders, Dai Xiaoming also repeated the letter says, Lin Fangqing made a resolution of the shareholders' meeting has no legal basis, Dai Xiaoming does not agree with the dissolution of the company, and asked Lin Fangqing to hand over the company's financial data.

The author thinks, ownership structure similar to Kailai company should be sufficient to pay great attention to practice, in the establishment of the company shall avoid each accounted for 50% of the equity structure, otherwise, as long as the two shareholders opinion differences, do not match, cannot form effective voting, obviously affect the company's operations.

Third, "deadlock" and "serious difficulties" management of judicial cognizance.

Whether the management the company serious difficulties, should be from the company's shareholders, the board of directors or executive directors and the board of supervisors or board of supervisors of the present running status of the comprehensive analysis. "Serious difficulties" of corporate management focus is corporate management have serious internal obstacles, such as the shareholders' meeting mechanism failure, unable to make decision on the management of the company, should not be one-sided understanding, for lack of company funds serious losses and other operating difficulties.

In fact, on the dissolution of complaint in the "management difficulties" how to understand the relevant departments, the Supreme Court has issued a guidance opinion, specific.

The Supreme Court vice president Xi Xiaoming at the May 30, 2007 meeting of the national civil and commercial trial work meeting stressed: "in dealing with the issue of company deadlock, to correctly grasp the article 183rd of the company law on the shareholder request the legislative purpose of company dissolution prescribed. Shareholder lawsuits the causes of company dissolution must be serious difficulties in the management of the company, its continued existence may cause major damage to the interests of shareholders. Serious difficulties management here understood as lack of funds, serious losses and operating difficulties, and should understand the serious internal disturbance management, is the main failure mechanism of shareholders' meeting, no decision on the management of the company".

Company law "two" after the enactment, the Supreme Court has to "two people court responsible person" the form of reporters of company dissolution litigation rules provides a clear answer:

Shareholders according to prosecute the reason must be the company runs into serious difficulties in the provisions of the company law ", continued existence would cause major damage to the interests of shareholders" reasons. "Company law judicial interpretation (two)" clearly listed four cases. These four cases mainly embody the serious difficulties in the company management shareholders and directors deadlock deadlock caused by the company, that is in a state of paralysis in fact, corporate governance structure reflects the company autonomous completely failed, not normal business activities, if allowed to continue to survive, will result in substantial interests, namely shareholder losses, in this case, it shall give shareholders filed a lawsuit to dissolve the company, protect their legitimate rights and interests of the relief channel. If the shareholders filed a lawsuit to dissolve the company, the cause of action as business serious losses, or its shareholders' rights are infringed, or the company after being revoked the business license without liquidation, because does not belong to the provisions of the company law, a company dissolution case mentioned reasons, the acceptance shall be shut sb.

In practice, "deadlock" may be serious to a shareholder of a long-term control the company and other shareholders, completely unable to participate in the activities of decision making and operating company, leading the company was "alienation" to "one man company controlling shareholder". This situation if allowed to survive, autocratic behavior is equal to the protection of the actual control of the company, shareholders, the objective will damage company investment legal system, if the protection of the illegal behavior is clearly inconsistent with the legislative purpose of company law. (to be continued)

Case the referee rules analysis (nine)

□ special legal commentator Shi Anning

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Company dissolution lawsuit rules (two)

(this series)

Typical cases of the Supreme People's court identified dispute facts can prove the above conclusion.

Third, "deadlock" and "serious difficulties" management of judicial cognizance.

In fact, on the dissolution of complaint in the "management difficulties" how to understand the relevant departments, the Supreme Court has issued a guidance opinion, specific.

Company law "two" after the enactment, the Supreme Court has to "two people court responsible person" the form of reporters of company dissolution litigation rules provides a clear answer:

Case the referee rules analysis (ten)

□ special legal commentator Shi Anning

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Company dissolution lawsuit rules (three)

(this series)

The company dissolution litigation, because of differences in the interests of all parties in the burden of proof of litigation thinking different, but any party's plea that to get judicial support must follow the company law and judicial interpretations of the rules of evidence.

Fourth, the burden of proof and the proof rules of company dissolution litigation.

Company law "two" set a company dissolution conditions, namely, alone or combined holding company shareholder vote ten percent shareholders, the following reasons filed a lawsuit to dissolve the company, and in accordance with the companies act 183rd provisions, the people's court shall accept the case:

(a) the company continued for more than two years cannot hold the meeting of shareholders or the general meeting of shareholders, the company management difficulties;

(two) can't meet the prescribed legal or the company's articles of association proportional voting, continued for more than two years are not able to make effective the shareholders' meeting or the resolution of the general meeting of shareholders, the company management difficulties;

(three) the board of directors of the company long-term conflict, and not through the shareholders or the general meeting of shareholders, the company management difficulties;

(four) the occurrence of other serious difficulties in the operation and management, the company continues to exist will cause major damage to the interests of shareholders.

The author thinks, advocate the dissolution of the party must be based on article 183rd of the company law and judicial interpretations of the setting conditions. The burden of proof; and shall adhere to the dissolution system in "management" refers to the equity structure of company management difficulties, is the embodiment of the company's business decision making and decision mechanism failure, not a company cannot carry out the fact that business activities. If be understood as "business difficulties," the legal basis is the company dissolution system will be lost. Because of the company business management control may be more efficient in a shareholder, decision-making more flexible and is not restricted by the state, but this is clearly opposed to the company law, because the overall safety of the damaged the company capital system. Therefore, to argue that the dissolution of the company one of the evidence should be around the core rules of proof to expand.

Against the dissolution of the company shareholders generally has actual control rights to the company, the dissolution of the party demands are often unable to participate in the activities of decision making and operating company, leading to the company for "alienation of one man company". Because of this, against the dissolution of the party to take proof ideas are often lift such as company in the normal inspection, tax, to pay the staff and pay social security costs and the company in the "profit" state of the evidence, and to think that the company does not appear in the "difficult" management, thus negating the dissolution of the company has achievement. But according to the current guiding cases referee spirit, such proof rule is essentially no evidence.

In judicial practice, should also pay attention to whether the deal with a company dissolution litigation "proper purpose" review.

The author thinks, "the purpose of the legitimacy of the" sort of defense opinion is obviously the product to shareholders' right of litigation. The reason is that the company dissolution litigation "human nature" was seriously damaged and can not be repaired, the continued existence of the company conflict with the establishment of the company to complete the original nature, so the company dissolution litigation request review called "the purpose of the legitimacy of the" no any legal basis.

Fifth, the company dissolution litigation wrong judgment corrective.

Correcting mechanism on the wrong judgment mainly depends on the procedure for trial supervision. However, the two "company law", the court shall be interpreted on a company dissolution case verdict, legally binding to all shareholders of the company; the court rejected the company dissolution lawsuit, filed a lawsuit or other shareholders and shareholders based on the same facts and reasons brought a lawsuit to dissolve the company, the court shall not accept the.

The author thinks, although in the case of the dissolution of a request is not supported by the results, not equal to the shareholders cannot claim to dissolve the company again in subsequent proceedings. In fact, the shareholder is the product of the contract law in the category of right to terminate a contract extension in the company's investment to the dissolution of the company claim. The dissolution of the company between the shareholders of the company is equivalent to lift investment agreement, so the dissolution of right of claim is a right type is similar to a "right of formation". When the company again with dissolution conditions, shareholders can again dismissing suit, and not be confined to must pass the trial supervision procedure to correct the wrong decision to achieve the purpose of the dissolution of the company.

At this time, the shareholders in the second meet the conditions of a company dissolution case has again company dissolution lawsuit, already no longer belonged to the said the judicial interpretation of "the same facts and reasons" category.

(in this case analysis.)

Case the referee rules analysis (eleven)

□ special legal commentator Shi Anning

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Legal issues of food safety in case (a)

Food security is related to national health, judicial power must attach importance to food security and fight against such crimes. But we must recognize, justice is the eternal theme of people's court, justly is the basic requirement of individual justice.

This case is involved in a "production, sale of poisonous and harmful food crimes" against defendants charged in the first instance, to correct and be declared food safety criminal cases not guilty in the second instance.

The source case: Shaanxi Province, Yanan City Intermediate People's Court (2013) in the sentence final No. thirty-second criminal judgments.

Basic facts of Yanan intermediate people's court verdict stated above:

The first instance court ascertained that the defendant Jiamou, such as benefit, not for any approval procedures, in his small workshop in use do not meet the health standards of pork and pig offal, waste oil, waste production, refining "edible lard" to be sold; the defendant Division has rich as long engaged in food production, the operator the sale of the business activities, knowing that the defendant Jiamou production, processing of lard without any approval procedures, production of lard not qualified certificate and health permits, also not a registered trademark, do not conform to the hygiene standards, safety and quality without any security, still buy and add it to the food to be sales, have violated the provisions of article 144th of the criminal law, constitute the production and sale of toxic and harmful food sin, sentenced the principal, a period of two years in prison; a division has rich period one year and six months in prison, two years probation.

In the case of all 5 defendants, the Division has rich appeal, request acquitted.

A final decision Yanan intermediate people's court that, in accordance with the relevant legal food national standards, Jiamou from open market legitimate sentinel pigs operators bought after passing inspection pig pig, pork stomach, omentum and other raw materials, the lard materials comply with the provisions of the national standard "Hygienic standard for edible animals" oils; according to the "two high" "concerning the handling of food safety hazards in criminal cases the law applicable to a number of issues of interpretation", the existing evidence can not prove that Jia in lard mixed with toxic or harmful non food raw materials, does not prove that the behavior has caused serious harmful consequences to human body; the investigation conclusion is that Jia "acid" exceed the standard of lard. The unqualified products, but the investigation organ in the extracted samples did not according to the rules of procedure, procedural law, leading to prove that the force on the inspection report can not accept.

The Yanan intermediate people's court that at the same time, the appellant Shi Youfu from 2008 to 2012 he has been buying Jiamou refining lard for food processing, the "mountain long" company production of food of different food inspection by the Yulin municipal quality inspection departments in different batches, are qualified products; after the incident, the investigation organ has rich food company products after the attachment to test division, the conclusion of the investigation organ for qualified products; because of the rich on lard products are not tested normal circumstances will be seized their destruction, and undocumented according to confirmed division are rich and others act constitutes a crime. In view of this, according to the legal fact instance court, Yanan intermediate people's court in September 18, 2013 made a final decision on the case: to withdraw the first instance judgment, that the appellant Division has rich innocent; at the same time, in this case "test report" can not be identified as the basis for a final decision based on the declaration of Jia, other four did not appeal the defendant of the original instance all the innocence.

It should be said, this case in the judgment thinking is the Supreme People's court case justice and pursuit of "Mistakes must be corrected whenever discovered" fully reflects the latest judicial spirit about. President Zhou Qiang stressed at the Yanan intermediate people's court investigation in 2013, must ensure that in the case of justice; in July 4th the same year, Zhou Qiang of dean of the National High Court Dean forum again, miscarriages of justice is an enormous harm to social fairness and justice, we must resolutely prevent and correct according to the law of unjust cases.

In December 23, 2013 the Supreme Court issued the "Regulations on the trial of the law applicable to a number of food and drug disputes" (March 15, 2014), "that food is qualified or not, should be based on the national standard; no national standards, should be based on local standards; no national standards, local standards, enterprise standards shall be. Food producers use standards higher than national standards, local standards, enterprise standards shall be. Without the standard, should be based on the relevant provisions of the food safety law as the basis". Obviously, the food safety standards in civil and criminal and commercial areas are important review basis, this point for the below analysis. (to be continued)