1、New Law Express

Finance and Insurance Department

(1)"Management Measures for Major Asset Restructuring of Listed Companies"(Revised in 2019)

On October 18,2019,the China Securities Regulatory Commission issued the"Management Measures for Major Asset Restructuring of Listed Companies"(revised in 2019).Due to the high operational complexity of the original law,some transactions are difficult to implement.In response,the CSRC has moderately adjusted the regulatory rules for restructuring and listing in this amendment,giving play to the functions of mergers and acquisitions and direct financing.

Modifications:

Simplify the recognition criteria for restructuring and listing,and eliminate the"net profit"indicator.

2.Further shorten the calculation period of the"cumulative first time principle"to 36 months.

3.Allow assets related to high-tech industries and strategic emerging industries that meet national strategies to be restructured and listed on the GEM,while other assets may not be restructured and listed for trading on the GEM.A listed company on the Growth Enterprise Market(GEM)shall comply with the relevant requirements of Item 1,Item 3,Item 4,and Item 5 of Paragraph 2 of Article 13 of the Restructuring Measures.The operating entity corresponding to the assets purchased shall be a joint stock limited company or limited liability company,and shall comply with other issuance conditions specified in the Measures for the Administration of Initial Public Offering of Shares and Listing on the GEM.

4.Restore the financing for the reorganization and listing.

5.Enrich performance compensation agreements and commitment regulatory measures for major asset restructuring,and increase accountability.

6.Clarify regulatory arrangements for mergers,acquisitions,and restructurings of technology innovation board companies,and simplify designated media disclosure requirements.

(2)"Notice on Further Clarifying and Standardizing Issues Related to Investment in Venture Capital Funds and Government Funded Industrial Investment Funds by Financial Institutions'Asset Management Products"(FGCJG[2019]No.1638)

On October 19,2019,the National Development and Reform Commission issued the"Notice on Further Clarifying and Regulating Issues Related to the Investment of Financial Institutions in Asset Management Products in Venture Capital Funds and Government Funded Industrial Investment Funds"(FGCJG[2019]No.1638),which clarified the application of new asset management regulations and implementation rules for asset management products in venture capital funds and government funded industrial investment funds,The overall thinking and main content are consistent with the guidance and basic principles of the new asset management regulations and their implementation rules.

Main content:In accordance with the spirit of the"Guiding Opinions of the State Council on Promoting the Sustainable and Healthy Development of Venture Capital"(GF[2016]No.53),"Guiding Opinions of the General Office of the State Council on Maintaining the Strength of Shortcomings in the Field of Infrastructure"(GF[2018]No.101)and other documents,In order to further implement the requirements of the"Guiding Opinions on Regulating the Asset Management Business of Financial Institutions"(Yin Fa[2018]No.106,hereinafter referred to as the"Guiding Opinions")on the relevant provisions of the two types of funds,it is hereby further clarified on the relevant matters of investment in the two types of funds by financial institutions'asset management products in the"Guiding Opinions".For two types of funds that have signed subscription agreements before the issuance of the Guiding Opinions and meet the requirements of this Circular,during the transition period,financial institutions can issue old products to make capital contributions,but they should be controlled within the overall scale of existing products,and orderly compress and decline to prevent cliff effect at the end of the transition period;If the transitional period has not expired yet,appropriate arrangements shall be taken to properly handle it with the consent of the financial regulatory department.Unless otherwise stipulated by the Party Central Committee and the State Council,the two types of funds newly signed subscription agreements after the issuance of the Guiding Opinions,which involve the contribution of financial institutions in issuing asset management products,should be strictly implemented in accordance with the relevant provisions of the Guiding Opinions.

(3)"Notice on Further Regulating the Structured Deposit Business of Commercial Banks"

On October 18,2019,the China Banking and Insurance Regulatory Commission issued the"Notice on Further Regulating the Structured Deposit Business of Commercial Banks"(Yin Bao Jian Ban Fa[2019]No.204).The relevant provisions of the"New Financial Regulations"have been basically continued,but more specific and detailed provisions have been made for businesses involving structured deposits.The most central policy intention is to regulate the"fake structured deposits"of some banks,regulate the arbitrage behavior of bill discounting and structural deposit yield inversion,reduce the capital cost of commercial banks,guide funds to move from virtual to real,and serve the real economy.

Highlights:

Emphasize the on-balance sheet accounting of structured deposits in banks,manage them based on deposits,and strictly distinguish them from other deposits.

2.It is clarified that only banks with general derivatives qualifications can issue structured deposits.This basically excludes most small and medium-sized banks with only basic derivatives trading qualifications.However,if the business continues to develop in the later stage and obtains the qualification for ordinary derivatives trading,it can also be issued.

In terms of external sales,the provisions of the"new financial regulations"are continued,requiring"dual recording in specific areas",but the promotion of product yield is not prohibited.

4.Clarify that the product is a non hedging derivative transaction after issuance,and its total risk capital cannot exceed 3%of the Bank's tier 1 capital.In this regard,the relevant provisions of the"Derivatives Trading Business Management Measures"issued in 2011 will be continued.

5.A transition period of sufficient length(12 months)has been granted to facilitate the disposal and adjustment of existing products by banks.It not only meets the characteristics of most structured products with a maturity of less than one year,but also basically remains consistent with the end of the transition period of the"new asset management regulations".

(4)"Notice on Printing and Distributing Supplementary Provisions on Supervision and Management of Financing Guarantee Companies"

On October 24,2019,the China Banking and Insurance Regulatory Commission issued the Notice on Printing and Distributing Supplementary Provisions on the Supervision and Administration of Financing Guarantee Companies.In order to fully and thoroughly implement the"Regulations on the Supervision and Administration of Financing Guarantee Companies"and achieve full coverage of the supervision of financing guarantee institutions and financing guarantee businesses,the"Supplementary Provisions"should be kept in line with existing laws and regulations,adhere to strict supervision,and require the supervision and administration department of financing guarantee companies to assume the main regulatory responsibility.Housing real estate guarantee companies that have not obtained a financing guarantee business operation license but actually operate financing guarantee businesses will be transferred to the housing real estate guarantee companies Incorporating institutions such as credit enhancement companies into regulation,combining actual classified disposal,promoting license management,and properly settling the stock business of unlicensed institutions are conducive to further standardizing financing guarantee operations.

(5)Shenzhen Stock Exchange Guidelines on Information Disclosure of Temporary Reports of Asset Backed Securities

On October 31,2019,the Shenzhen Stock Exchange issued the"Guidelines for Information Disclosure in the Interim Report on Asset Backed Securities of the Shenzhen Stock Exchange".Efforts have been made to address the timeliness,effectiveness,and pertinence of information disclosure in interim reports on asset-backed securities,clearly regulating the applicable circumstances,disclosure content,and time limit requirements for information disclosure in interim reports,and improving the information disclosure system for the duration of asset-backed securities,protecting the legitimate rights and interests of investors,and promoting the management of special asset support plans(hereinafter referred to as the manager)The ability of market participants such as investors to identify and control risks is of great significance.

Main content:

1.Compaction information disclosure subject responsibility.Clarify that managers and credit rating agencies are direct information disclosure obligors,and on the basis of the"Credit Disclosure Guidelines"issued by the CSRC,clarify that important providers of underlying asset cash flows,asset evaluation agencies,cash flow forecasting agencies,and regulatory banks are the entities responsible for providing relevant information to information disclosure obligors in a timely manner.

2.Refine and improve information disclosure requirements for major events.The major events specified in Article 19 of the"Guidelines for Information Disclosure"issued by the Securities Regulatory Commission were detailed,and major events requiring disclosure obligations such as changes in the main provisions of the special plan documents,non fulfillment of commitments,changes in the ownership of underlying assets,closure and freezing of related accounts,and significant adverse reports on the market were added.

3.Clarify procedural requirements for important matters.Further clarify the convening process,resolution methods,and announcement types of asset-backed securities holders'meetings,and require that the holders'meetings be witnessed by lawyers;Clarify that relevant announcements should be disclosed in a timely manner before and after the exercise of revolving purchase,suspension and resumption of trading,and the vesting clause to effectively protect the legitimate rights and interests of investors.

(6)Health Insurance Management Measures

On October 31,2019,the China Banking and Insurance Regulatory Commission issued the Health Insurance Management Measures(No.3,2019).

Highlights:

1.Conceptual positioning keeps pace with the times.Position health insurance as an important component of the national multi-level medical security system,improve the definition and business classification of health insurance,and incorporate medical accident insurance into health insurance.

2.Strict supervision of product specifications.Referring to the operating conditions of tax premium health insurance and serious illness insurance,the necessary conditions for operating health insurance have been clarified.In addition to health insurance companies,other insurance companies and mutual insurance organizations are required to establish a specialized health insurance business unit that can independently calculate and promote professional health insurance operations;Adhere to the protection attribute of health insurance,clarify that medical insurance,disease insurance,and medical accident insurance products must not include survival insurance liabilities,and that nursing insurance can only use nursing needs caused by disability as compensation conditions.

3.Selling and operating to protect consumers'rights and interests.Propose prohibitive regulations for insurance companies to sell health insurance products that do not force them to sell with other products,or that do not induce them to repeatedly purchase medical insurance products with the same or similar cost compensation functions;Specify that an insurance company shall not require the applicant to provide or illegally collect or obtain genetic information or genetic testing data other than the insured's family medical history;Absorb and adopt relevant medical reform policies in recent years,such as preferential support for the poor.

4.Rate adjustment to adapt to the market-oriented direction.Clarify that long-term medical insurance rates can be adjusted to accommodate changes in the disease spectrum,advances in medical technology,and changes in medical expenses;Delete the relevant statements about the floating rate of short-term personal health insurance,and leave the pricing power to the market for decision to adapt to the current market-oriented direction of the rate.

5.Health management is written in a special chapter for the first time.Firstly,it summarizes the main contents of health management;The second is to link health insurance and health management,stipulating that health management services provided by insurance companies can be included in health insurance contracts or listed separately;The third is to further clarify the provisions on the proportion of health management expenses in health insurance in different documents;Fourth,encourage insurance companies to participate in medical fee control in medical insurance cooperation,and standardize relevant medical behaviors.

6.Actively embrace new technologies.Firstly,it is clear that under certain circumstances,insurance companies can review the insured's digital claim settlement materials through the Internet,simplifying the claim settlement process,and improving service efficiency;Second,encourage insurance companies to connect information and share data with medical institutions and basic medical insurance departments;Third,encourage insurance companies to focus on applying new technologies such as big data to product development and risk management.

7.The scope of application is well considered.According to the practical needs of the development of health insurance,the Measures include insurance intermediaries and their employees in selling health insurance products,and mutual insurance organizations in operating health insurance business into the scope of application

(7)"Guidelines for Information Disclosure in the Interim Report of Asset Backed Securities of Shanghai Stock Exchange"(SZF[2019]No.105)

On November 1,2019,the Shanghai Stock Exchange issued the Guidelines for Information Disclosure in the Interim Report on Asset Backed Securities of the Shanghai Stock Exchange(SZF[2019]No.105).The Guidelines further improve the quality of information disclosure,strengthen the information disclosure system of asset backed securities,help to compact the main responsibility of market institutions for information disclosure,enhance the awareness of information disclosure among all parties,help ensure better investment decision-making by investors,and enhance the risk management ability of market participants.

Main contents:

1.Clarify the responsibilities and time limit requirements of information disclosure entities,emphasize that managers and rating agencies are direct credit obligors,and that participating institutions such as original equity holders and important providers of cash flow have the obligation to cooperate,striving to improve the timeliness and transparency of information disclosure;

2.Refine and enrich the information disclosure of major events,and add major agreed changes in special plans,unfulfilled commitments,cash flow interception or account freezing,and significant adverse reports on the market as major events to improve the pertinence and effectiveness of information disclosure;

3.Improve temporary information disclosure arrangements,further standardize matters such as the circular purchase of underlying assets,holders'meetings,securities exercise,suspension and resumption of trading,and provide investors with richer reference information for investment decision-making;

Drawing on the experience of credit debt supervision,we have prepared a template of interim report format,and a total of 25 report templates have been developed to facilitate the use of participating institutions,improving the standardization and standardization of information disclosure.

(8)"Notice on Deepening and Standardizing the Work of"Bank Tax Interaction""

On November 6,2019,the China Banking and Insurance Regulatory Commission issued the Notice on Deepening and Standardizing the"Bank Tax Interaction"Work(SZF[2019]No.113).Propose to expand the scope of beneficiary enterprises and gradually expand the tax credit rating of enterprises applying for"Bank Tax Interaction"loans from A and B to M;Actively promote the direct connection model of tax and banking data,encourage banks to innovate credit products,and promote"online one-stop"processing;Actively promote mature and applicable credit products to improve the quality and efficiency of"bank tax interaction"work.The Notice emphasizes that third-party cooperative institutions shall not charge any fees in any form from enterprises applying for loans under the name of"Bank Tax Interaction".If a bank requests the assistance of a third party cooperative institution in handling tax related information related to"bank tax interaction",it should stipulate in the cooperation agreement that the third party cooperative institution shall not charge or transfer any fees to the enterprise.If it is found that the third party cooperative institution has charged fees to the enterprise or has in disguised form raised financing costs,the bank should stop cooperating with it.The Notice proposes that the tax and banking and insurance regulatory departments should establish a"banking tax interaction"effect evaluation system,enhance the exemplary effect of trustworthy incentives,and promote the continuous optimization of the business environment.

(9)"Guiding Opinions on Strengthening the System and Mechanism Construction of Consumer Rights Protection in Banking and Insurance Institutions"

On November 8,2019,the China Banking and Insurance Regulatory Commission issued the"Guiding Opinions on Strengthening the Construction of Consumer Rights Protection System and Mechanism for Banking and Insurance Institutions"(Yin Bao Jian Fa[2019]No.38).It includes eight parts,mainly including four aspects:"system","mechanism","supervision",and"industry self-discipline":

Main content:

In terms of system,banking and insurance institutions are required to integrate consumer rights protection into all aspects of corporate governance.The board of directors assumes ultimate responsibility for consumer rights protection.The board of directors establishes a consumer rights protection committee.The senior management ensures that strategic goals and policies for consumer rights protection are effectively implemented,and specifies that departments perform their responsibilities for consumer rights protection.From the board of directors,committees,senior management to clear executive departments,the responsibility for consumer rights protection is delegated and implemented level by level.

In terms of mechanism,banking and insurance institutions should strengthen the implementation and supervision mechanism for consumer rights protection decisions,effectively strengthen business operation behavior management,give play to the corrective role of internal audit on consumer rights protection work,and the supervisory role of the board of supervisors on the performance of relevant duties of the governance layer.Establish a consumer rights protection review mechanism,conduct consumer protection reviews on products and services provided to consumers in the design and development,pricing management,agreement formulation,and other aspects.Incorporate consumer protection reviews into the risk management and internal control system of banking and insurance institutions,placing equal emphasis on both online and offline,and moving forward the risk control threshold.Improve the internal evaluation mechanism for consumer protection,and the internal evaluation of consumer protection should comprehensively cover relevant departments and personnel,and be incorporated into the comprehensive performance evaluation system,accountability system,and human resource management system of the institution.Strengthen and improve the information disclosure mechanism for consumer protection,including significant information on consumer protection work,products and services,complaint management,and other relevant information.Disclosure needs to fully consider consumer needs,which is conducive to consumers fully understanding their characteristics and risks before accepting products and services,and making more rational decisions.

In terms of supervision,regulatory authorities should strengthen guidance and supervision on the construction of institutional mechanisms for the protection of consumer rights and interests of banking and insurance institutions within their jurisdiction,incorporate the construction of institutional mechanisms into the assessment and evaluation of consumer rights and interests protection supervision,and use the assessment and evaluation results of consumer protection supervision as an important reference content for conducting comprehensive regulatory ratings,allocating regulatory resources,and taking regulatory measures.

In terms of industry self-discipline,it is required that the China Banking Association,the China Insurance Industry Association,and the China Trust Industry Association establish a consumer rights protection committee,combining their own positioning,giving play to their professional advantages,and improving the self governance level of consumer rights protection in the industry.

Criminal Department

(1)"Opinions on Properly Hearing Cases of Throwing Objects and Falling Objects from High Altitude in accordance with the Law"

It's set!Intentionally throwing objects from high altitude will be punished as intentional homicide

https://mp.weixin.qq.com/s/F-ITRb_fY2aGeo_gi1LMn

A few days ago,the Supreme People's Court issued the Opinions on the Proper Trial of Cases of Throwing Objects and Falling Objects from High Altitude in accordance with the Law.The Opinions provide specific provisions on how to accurately identify the crime of throwing objects from high altitudes and the crime of falling objects from high altitudes.Those who throw objects from high altitudes in densely populated areas shall be given heavier punishment according to law,and generally shall not be subject to probation.

Throwing objects at high altitude in densely populated places shall be given a heavier punishment according to law.

The Opinion clearly states that for high-altitude parabolic behavior,it is necessary to comprehensively consider the degree of social harm of the behavior,accurately determine the nature of the behavior,correctly apply the charges,and accurately determine the punishment based on factors such as the actor's motivation,the location of the parabolic object,the situation of the throwing object,and the consequences.

"Whoever intentionally discards objects from a high altitude,but has not yet caused serious consequences,but is sufficient to endanger public safety,shall be convicted and punished in accordance with the crime of endangering public safety by dangerous methods prescribed in Article 114 of the Criminal Law;";"Whoever causes serious injury or death to a person or causes significant losses to public or private property shall be punished in accordance with the provisions of the first paragraph of Article 115 of the Criminal Law.".Whoever commits the above-mentioned acts for the purpose of harming or killing a specific person shall be convicted and punished in accordance with the crime of intentional injury or intentional homicide.

In the course of committing a crime of throwing objects from high altitude,if one of the following circumstances occurs,a heavier punishment shall be imposed,and generally no suspension of sentence shall be applied:

(1)Implemented multiple times;

(2)Those who continue to implement after being dissuaded;

(3)Those who have been subjected to criminal or administrative punishment and then implement it;

(4)Implemented in densely populated places;

(5)Other serious circumstances.

The Opinions also clarify the accurate determination of the crime of falling objects from high altitude.According to the Opinions,if an article falls from a height due to negligence,causing death or serious injury to a person,and if it meets the provisions of Articles 233 and 235 of the Criminal Law,it shall be convicted and punished according to the crime of causing death through negligence or the crime of causing serious injury through negligence."Whoever,in violation of relevant safety management regulations in production or operation,falls objects from a height,causing a major casualty accident or causing other serious consequences,shall be convicted and punished for the crime of a major liability accident in accordance with the provisions of the first paragraph of Article 134 of the Criminal Law.".

(2)"Guiding Opinions on the Application of the System of Confession of Crime,Recognition of Punishment,and Leniency"

12 Issues in the Application of the System of Confessing a Crime,Confessing a Punishment,and Being lenient(Understanding and Application)

https://mp.weixin.qq.com/s/MFHQw5zVfPgZlvuozxNd2A

On October 24,2019,the Supreme People's Court,the Supreme People's Procuratorate,the Ministry of Public Security,the Ministry of National Security,and the Ministry of Justice jointly issued the Guiding Opinions on the Application of the System of Condemnation,Confession,Punishment,and Leniency.In order to facilitate the accurate understanding and application of this opinion in practice,the Chinese Journal of Criminal Law specially invited Miao Shengming,Director of the First Procuratorial Office of the Supreme People's Procuratorate,and Zhou Ying,the head of the Office,to write an article entitled"Basic Issues in the Application of the System of Condemnation,Confession,Punishment,and Leniency",which provides a theoretical explanation and application explanation of the background,process,and main content of the opinion.The full text is approximately 30000 words long,and notes are omitted for ease of reading.For the full text,please refer to the Chinese Journal of Criminal Law,Issue 6,2019.

Highlights:

The leniency system of pleading guilty and punishment can be applied to all crimes and all criminal cases.

"Confession of guilt and punishment,voluntary surrender,and confession are not subject to repeated evaluations.".

"Legal aid institutions may assign lawyers on duty to people's courts,people's procuratorates,and detention centers."."People's courts,people's procuratorates,and detention centers shall provide necessary office space and facilities for lawyers stationed on duty.".

4.If the victim and his/her agent ad litem disagree to grant leniency to the suspect or defendant who pleads guilty and accepts punishment,this will not affect the application of the leniency system.If the suspect or defendant voluntarily pleads guilty and is willing to actively compensate for losses,but the victim's compensation request is obviously unreasonable,and no mediation or reconciliation agreement can be reached,it generally does not affect the leniency of the suspect or defendant.

5.The People's Procuratorate may,according to the specific circumstances of the case,explore the evidence disclosure system to ensure the suspect's right to know and the authenticity and voluntariness of pleading guilty and accepting punishment.

"The People's Procuratorate may,in accordance with the law,make a decision not to initiate a prosecution in a minor criminal case where there is no dispute after pleading guilty to a crime and the punishment is not required."."For cases where the facts of the case are unclear and the evidence is insufficient after pleading guilty to punishment,a decision not to prosecute shall be made according to law.".

In handling cases of confession and punishment,the People's Procuratorate should generally put forward suggestions for determining the punishment and sentencing.For new types and uncommon criminal cases,as well as serious crime cases with complex sentencing circumstances,it is also possible to propose margin sentencing recommendations.

"If,after trial,the people's court considers that the sentencing proposal is obviously inappropriate,or if the defendant or defender has objections to the sentencing proposal and there are reasonable grounds,the people's court shall notify the people's procuratorate,which may adjust the sentencing proposal.".If the people's court considers the adjusted sentencing recommendation appropriate,it shall adopt it;"If the People's Procuratorate does not adjust the sentencing recommendation or if the adjustment is still manifestly inappropriate,the People's Court shall make a judgment according to law.".

(3)"Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Smuggling,Illegal Operation,and Illegal Use of Stimulants"

2020.1.1 Implementation!Supreme Law:Judicial Interpretation of Criminal Cases Involving Doping(Full text attached)

https://mp.weixin.qq.com/s/HdT41n9q2BoHhlCn2k9NAg

On November 18,the Supreme People's Court issued the"Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Smuggling,Illegal Operation,and Illegal Use of Stimulants"(hereinafter referred to as the"Interpretation").The Interpretation was deliberated and adopted by the Judicial Committee of the Supreme People's Court at its 1781st meeting on November 12,2019,and will enter into force on January 1,2020.

Litigation Department

(1)The Supreme People's Court has issued the Opinions on the Proper Trial of Cases of Throwing Objects and Falling Objects from High Altitude in accordance with the Law

In recent years,incidents of throwing objects and falling objects from high altitude have continuously occurred,seriously endangering public safety,infringing on the legitimate rights and interests of the people,and affecting social harmony and stability.In order to give full play to the punishment,regulation,and prevention functions of judicial adjudication,properly handle cases of throwing objects or falling objects from high places in accordance with the law,effectively safeguard the"safety above the head"of the people,ensure the people's well-being,and maintain social fairness and justice.On November 14th,the Supreme Law promulgated the Opinions on the Proper Trial of Cases of Throwing Objects and Falling Objects from High Altitude in accordance with the Law,proposing 16 specific measures to effectively prevent and punish acts of throwing objects and falling objects from high altitude in accordance with the law,and effectively safeguard the"safety above the head"of the people.The Opinion points out that there are significant differences between throwing objects from high altitude and falling objects in terms of the subjective aspects of the responsible person and the social harmfulness,and a distinction should be made between criminal conviction and civil accountability.

The Opinions emphasize that in civil trial work,it is necessary to maximize the search and determination of direct infringers and judge them to bear tort liability according to law;"When applying Article 87 of the Tort Liability Law to adjudicate a case,the people's court shall,in accordance with the law,exempt the"potentially injurious building user"who can prove that he is not the infringer.".Different legal applicable rules for distinguishing falling objects and throwing objects."If a building,its shelved objects,or suspended objects fall off or cause damage to others,and the owner,manager,or user cannot prove that they are not at fault,the people's court shall apply the provisions of Article 85 of the Tort Liability Law and adjudge them to bear tort liability according to law.";"If there are other responsible persons,and the owner,manager,or user claims the right of recourse against the other responsible persons after making compensation,the people's court shall support them."."If throwing objects from a building causes damage to others,the direct infringer shall be identified as much as possible and judged to bear the liability for infringement according to law.".If a property service enterprise fails to fulfill its statutory or agreed obligations and causes the buildings,their shelved objects,and suspended objects to fall,causing damage to others,it shall also be investigated for tort liability;If a property service enterprise conceals,destroys,tampers with,or refuses to provide corresponding evidence,which makes it difficult to identify the facts of the case,it shall bear corresponding adverse consequences.

(The sections related to the intersection of criminal and legal relationships have been briefly described in the briefing of the Ministry of Criminal Affairs.)

(2)"Guiding Opinions on Several Issues Concerning the Trial of Disputes over Paid Annual Leave"

On August 9,2019,the Higher People's Court of Jiangsu Province issued the Guiding Opinions on Several Issues Concerning the Trial of Disputes over Paid Annual Leave,which combines the actual situation of Jiangsu Province and comprehensively implements the system of paid annual leave(hereinafter referred to as annual leave)from multiple perspectives.It is conducive to protecting workers'rights to rest and vacation,promoting the long-term development of enterprises,and providing a basis for the court to correctly handle annual leave dispute cases.

Main content:

"If a dispute arises between a worker and an employer over the payment of unpaid annual leave wages,the people's court shall accept it.".

2.The employer has not arranged annual leave,and the employee claims to pay 300%of their daily wage income for the unused annual leave

Rewards should be supported.

If the employer has arranged annual leave and can provide evidence to prove that it is due to the employee's own reasons,and the employee requests to pay the difference in annual leave wages,it will not be supported.

3.The daily wage income of unpaid annual leave shall be calculated by dividing the monthly wage of the worker by the number of days of monthly salary calculation.The monthly wage refers to the average monthly wage of the year the worker should take leave,including salary income such as bonuses and allowances,but excluding overtime wages.

"If there is an agreement between the employer and the employee on the calculation standard of wages and remuneration for unpaid annual leave,the agreement shall prevail,but the agreement shall not be lower than the standard specified in the preceding paragraph.".

The wage difference that a worker requests from the employer for payment due to not taking annual leave is a legal compensation liability that the employer should bear in accordance with the law.The arbitration limitation period for this claim shall be determined in accordance with Article 27,Paragraph 1,of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China,starting from January 1 of the following year in which the employee should take the leave.Before that,if the labor relationship is dissolved or terminated,it shall be counted from the next day after the labor relationship is dissolved or terminated.

liquidating group

"Implementation Opinions on Centralized Clearing of Personal Debt(Trial)"

In order to implement the spirit of the opinion of the Supreme People's Court on"carrying out pilot work equivalent to the function of the personal bankruptcy system",the Wenzhou Intermediate People's Court issued the"Implementation Opinions on Centralized Personal Debt Liquidation(Trial)"on August 13,2019,marking the official launch of the pilot work of centralized personal debt liquidation by the Wenzhou Court.The Implementation Opinions have a total of 44 articles,which are arranged in accordance with the overall framework of conceptual definitions,basic principles,scope of application,acceptance mechanisms,and liquidation procedures.The liquidation procedures focus on activating the bank's debt relief system through concerted action on financial claims,resolving the"guarantee chain"crisis through debt relief,improving the exit mechanism for"enforcement failure"cases by ending enforcement,and enhancing creditors'sense of gain through four rights The six distinctive functions are to prevent debt evasion and abandonment through the transfer of debtors'rights and the expansion of obligations,to promote social fairness and the construction of a credit system through the loss and restoration of rights,and to promote publicity and supervision.

2、Industry Highlights

Finance and Insurance Department

(1)Gu Xiaojun,founder of Greencool and former chairman of Kelon Electric,won the CSRC

In October 2019,Gu Xiaojun received an administrative judgment from the Beijing Higher People's Court.He won an administrative lawsuit with the Securities Regulatory Commission in the second instance of the Beijing Higher People's Court.The final judgment of the Beijing Higher People's Court rejected the appeal of the CSRC,upheld the judgment of the court of first instance,and ordered the CSRC to respond again to Gu Xiaojun's application for government information disclosure within the statutory time limit,including the disclosure of the"Securities and Futures Case Investigation Rules"and the seven items of information that the CSRC initiated the filing and investigation process against Kelon Company in 2005.On November 4,2019,the CSRC informed Gu Xiaojun of the absence of a chairman's office meeting and the absence of corresponding information in the"Government Information Notification"(ZJXJP[2019]No.270).

(2)Jiangsu Province verified the status of bonds and trust products of some local government financing platforms

The Jiangsu General Administration Bureau of the Ministry of Finance issued the Notice on Verifying the Issuance of Corporate Credit Bonds and Trust Products by Some Local Financing Platform Companies.The objects of the inspection were local financing platform companies in Changzhou,Zhenjiang,Taizhou,Xuzhou,Huai'an,and Yancheng,and the inspection period was from November 12 to November 30.Industry insiders said that the first station inspection found the packaging of accounts receivable between platforms.

Litigation Department(Labor Law)

Jiangsu stops entrusting judicial expertise to 54 institutions

Recently,the Jiangsu Provincial High People's Court issued a notice to the public through the electronic information platform of appraisal institutions entrusted by the Jiangsu Provincial People's Court,suspending the entrustment of 54 appraisal institutions involved in accounting audit,project cost,asset evaluation,product quality,construction project quality testing,forensic clinic,and other aspects.These appraisal institutions have seriously exceeded the deadline in 215 cases involving appraisal entrusted by courts at all levels in the province.

It is understood that for a long time,the situation of prolonged delays in judicial authentication by judicial authentication institutions has occasionally occurred,which has become a bottleneck impeding courts at all levels in improving trial efficiency.In response,the judicial technology department of the court often adopts methods such as interviews and correspondence with appraisers to supervise and urge the handling of cases.Although to some extent,it can clear up some cases that have been delayed for a long time,it cannot fundamentally curb the phenomenon of overdue appraisal.

The head of the judicial technology department of the Jiangsu High Court introduced to the reporter that in 2014,the Jiangsu High Court established an electronic information platform for entrusted appraisal institutions uniformly used by courts throughout the province.The platform implements dynamic management,accepts network applications from authentication institutions at any time,updates authentication institution information in a timely manner,and stops entrusting institutions that violate laws and regulations and fail to authenticate for a long time,realizing standardized use management for authentication institutions.Currently,67 appraisal projects from 1615 institutions have entered the platform,involving more than 50 professional fields.

In April of this year,the Jiangsu High Court issued a special notice in accordance with the General Rules for Judicial Authentication Procedures and other relevant regulations,requiring courts at all levels in the province to inform various authentication institutions that they will not continue to entrust authentication cases within the province's courts for various authentication institutions that have not completed the authentication within 90 days,in order to establish a long-term mechanism to solve the problem of unreasonable delay by the appraisers of authentication institutions.

3、Case Analysis

Finance and Insurance Department

Supreme Court:The creditor of the main contract who is not agreed in the guarantee contract has no right to require the guarantor in the guarantee contract to assume guarantee responsibility for the debts involved in the case

In November 2013,Anhui Baoxiang Construction Group Co.,Ltd.and China Construction Bank Wuhu Branch signed the Maximum Amount Guarantee Contract(2013002)to provide guarantee for the bank loan of Anhui Fenglida Construction Co.,Ltd.In November 2014,China Construction Bank Wanchun Sub-branch signed the"RMB Working Capital Loan Contract"with Anhui Fenglida Construction Co.,Ltd.Upon expiration of the loan term,Anhui Fenglida Construction Co.,Ltd.failed to repay the bank loan of China Construction Bank Wanchun Sub-branch.China Construction Bank Wanchun Sub-branch sued and required Anhui Baoxiang Construction Group Co.,Ltd.to assume the guarantee responsibility for repaying the principal and interest of the loan in accordance with the Maximum Amount Guarantee Contract(2013002).The final judgment of the Anhui Provincial High Court revoked the judgment of the Wuhu Intermediate Court that Anhui Baoxiang Construction Group Co.,Ltd.should bear joint and several liability for repayment of the principal and interest of the bank loan of Anhui Fenglida Construction Co.,Ltd.at the Wanchun Branch of the Construction Bank.China Construction Bank Wanchun Sub-branch applied to the Supreme Court for retrial of the judgment.

[Decision Result]The Supreme Court rejected the retrial application.

"The contract is signed by specific parties and has legal effect between specific parties.If there are no legal provisions or special agreements,only the parties to the contract can claim rights from the opposite party based on the contract agreement,and cannot claim rights from a third party who has no contractual relationship with it,nor can they arbitrarily set contractual obligations for the third party.".In this case,China Construction Bank Wanchun Sub-branch is not the main contract creditor stipulated in the Maximum Guarantee Contract(No.2013002).In the loan contract signed with Anhui Fenglida Construction Co.,Ltd.,China Construction Bank Wanchun Sub-branch agreed that the debt was within the guarantee scope of the Maximum Guarantee Contract(No.2013002),but the agreement was neither confirmed by Anhui Baoxiang Construction Group Co.,Ltd.nor did China Construction Bank Wanchun Sub-branch provide evidence to prove that Anhui Baoxiang Construction Group Co.,Ltd.knew and recognized the agreement,Therefore,this agreement has no legal effect on Anhui Baoxiang Construction Group Co.,Ltd.Therefore,in accordance with the provisions of Article 144,Article 168,Article 170,Paragraph 1,Item 2,and Article 174 of the Civil Procedure Law of the People's Republic of China,the Anhui Provincial High Court has ruled to revoke the judgment that Anhui Baoxiang Construction Group Co.,Ltd.bears joint and several liability for repayment of the principal and interest of the bank loan of Anhui Fenglida Construction Co.,Ltd.at the Wanchun Branch of the Construction Bank.

In this case,the guarantee contract was established before the loan contract was established,and the creditor agreed in the guarantee contract was the branch,while the creditor agreed in the loan contract was the branch.The special feature of this case is that the subordinate contract is established before the main contract,and the creditor in the subordinate contract and the main contract are not the same subject.The existence of a guarantee contract before it is established does not necessarily lead to the invalidity of the guarantee contract.If the guarantee contract can clearly indicate the type and amount of the principal creditor's rights of the guaranteed person,the loan contract is valid,the principal creditor's rights truly exist,and the guarantee contract has no other invalidity circumstances,then the guarantee contract is valid.According to the principle of contract relativity,a guarantee contract only binds the parties signing the guarantee contract,namely,the branch and the guarantor.After signing a loan contract with the borrower,the branch should negotiate with the branch and guarantor to change the creditor of the guarantee contract,or obtain confirmation from the guarantor,otherwise the guarantee contract will not have any effect on the branch.Although branches and sub branches are both branches of the head office,they operate independently,without any confusion in business,property,personnel,and other aspects.They are independent civil subjects,so the relativity of contracts cannot be broken through by the branches of the same head office.Before filing a lawsuit,unifying the creditor subjects of the guarantee contract and the loan contract is the key to obtaining court support for this case.

Criminal Department

Casualty caused by negligence after drinking

Case description:

On a winter night in 2017,Duan and several of his friends had dinner together,and after three rounds of drinking,several of them chatted happily.They planned to go to a lobster restaurant for a"second scene".After several people drove to the lobster restaurant,they met Tian and others who were passing by after a dinner with their company colleagues.The two sides had some communication due to parking space issues.Originally,this was a beautiful evening,and both parties came back from a dinner with their friends or colleagues,"Both of them should be in a good mood,but it may be because both of them were a bit drunk and spoke freely.First,there was some argument,which escalated into a push.During this period,Duan was pushed to the ground by Tian,and Duan was very angry.After getting up,he used his strength to brandish a punch in Tian's face.Unexpectedly,this punch made Tian hit a hard object on the head,causing brain injury,and later died after being rescued.".After the incident,Duan did not escape,waiting for the police to arrive and following the police to the public security organ for investigation.The public security organ detained Duan for intentional injury leading to death.

Due to Duan's detention,his family did not know the specific circumstances involved in the case and was very anxious.After accepting the entrustment,our lawyers met with the suspect to understand the process involved in the case and the situation of the case,analyze the evidence held by the investigation organ,explain the relevant charges,criminal procedures,sentencing rules,and put forward a defense plan.According to the behavior of the suspect,actively communicate with the case handling authority and assist the suspect's family to actively negotiate compensation for the victim's family,and obtain the understanding of the victim's family to Duan.During the review and arrest process,the defense lawyer fully communicated with the prosecutor,and ultimately the procuratorate approved Duan's arrest for causing death through negligence.After receiving the arrest notice,the lawyer promptly submitted an application to the procuratorate for review of the necessity of detention,and successfully changed the mandatory measures for Duan to obtain a guarantor pending trial.At the trial stage,the lawyer issued defense opinions from aspects such as the accidental nature of the case,the victim's responsibility for the initiation of the case,the defendant's defensive ability to punch the victim after being pushed down,the defendant's voluntary surrender,meritorious performance,and the defendant's active compensation and understanding from the victim's relatives after the case.Finally,the court sentenced the defendant Duan Mou to commit the crime of causing death due to negligence and sentenced him to two years'imprisonment below the statutory sentencing range.

Legal analysis:

The crime of causing death through negligence refers to the act of causing death through ordinary negligence.The object of this crime is the right to life of others,which is objectively manifested as the act of causing others to die due to negligence,and subjectively manifested as negligence,that is,the psychological state in which the perpetrator is negligent about the outcome of his act,including negligence and overconfidence.

In this case,Duan had a dispute with the victim due to parking issues after drinking.During the dispute,Duan was pushed to the ground by the victim.Duan got up and hit the victim in the face with a fist,causing the victim to fall unconscious.After being rescued,he died,and the forensic expert identified the victim as having been hit on the head by a blunt external force,resulting in a fall that caused brain injury and died.Duan subjectively believes that the death of the victim is a negligent psychological state,and objectively implements the act of causing death through negligence,which conforms to the criminal constitution of the crime of causing death through negligence.

In this case,someone and the victim originally met by chance,but they broke up with each other due to a small parking problem,which ultimately destroyed the two families,leaving people deeply moved.In the process of interpersonal communication,multiple understanding and tolerance are what a good life should look like.

Legal provisions:

Article 233 of the Criminal Law:Whoever causes death through negligence shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years;If the circumstances are relatively minor,he shall be sentenced to fixed-term imprisonment of not more than three years."If there are other provisions in this Law,those provisions shall prevail.".

Litigation Department

Brief description of the case:

Xiao Zhao,Lao Wang's neighbor,is a salesperson at an insurance company.Once,he came to Lao Wang to promote a company's innovative product,"XX Lifetime Life Insurance",which is also a universal type,with additional insurance,early payment of major disease insurance,and other financial functions.He paid 6000 yuan and received 40000 yuan.With the strong recommendation of Xiao Zhao and a strong guarantee,Lao Wang signed the insurance contract with more than 100 pages.A few years later,Lao Wang became seriously ill and spent more than 200000 yuan on treatment.I thought that because I bought insurance,these expenses would be paid by the insurance company.Unexpectedly,the insurance company refused to settle the claim on the grounds of"any of the 32 major diseases that do not comply with the insurance terms of the case".Lao Wang was extremely angry and took the insurance company to court after communication failed.

Justification:

The court held that the insurance contract was unilaterally produced by the insurer,which is a standard clause and has a strong professional nature.Before signing the contract,the insurer not only did not fulfill the obligation to explain the content of the standard clause,but instead made misleading publicity about the coverage,causing misunderstanding by the policyholder.As an ordinary consumer,it failed to accurately understand the true meaning of the insurance clause,and subjectively did not have any fault.This case conforms to the application of the principle of reasonable expectation.

Judgment result:

The insurance company shall reimburse the cost of the treatment.

Case analysis:

No one can guarantee which comes first,whether in an accident or tomorrow.The safety and health of oneself and family have become the most simple and sincere expectations and aspirations of many modern people.In today's world where safety hazards are everywhere,more and more people are willing to spend money to buy reassurance,buy an insurance for their families,protect their health,buy an insurance for themselves,and escort their own tomorrow.As more and more people agree on the value of insurance,the variety of insurance products is dazzling,and people do not know how to choose.Under the promotion of an insurance salesperson,I was confused and bought various types of insurance,only to discover afterwards that the insurance was not what I understood.Therefore,generally speaking,due to the large content and strong professionalism of insurance contracts,it is difficult for consumers to understand the specific meaning of the insurance contract.Therefore,according to the principle of reasonable expectations,since it is not possible to expect ordinary consumers to fully understand the content of insurance contracts when signing contracts,if insurance companies do not have evidence to prove that they have performed the necessary explanation and interpretation obligations when promoting or signing contracts,they should bear adverse consequences.It is also reminded that when applying for insurance,the applicant must clearly read the terms of the contract,promptly request the insurance company to explain the parts he cannot understand,and if necessary,sign a supplementary explanation attached to the insurance contract.

liquidating group

"The first personal bankruptcy case in China"

Brief description of the case:

Cai Mou,a native of Wenzhou,Zhejiang,owed over 2.14 million yuan in debt,requiring only over 32000 yuan to be repaid.After three years,his personal credit can be restored,and after six years,he can unload his heavy debt burden.

Case analysis:

In an interview,the relevant person in charge of the Wenzhou Intermediate People's Court said that the case was"the first centralized personal debt liquidation case with substantive functions and equivalent procedures for personal bankruptcy in China".In the absence of a personal bankruptcy system in China,the statement of"the first personal bankruptcy case"was inaccurate.

Lawyers from our firm believe that this"first case"in Wenzhou can only be regarded as the act of individual creditors and debtors reaching a consensus to reduce debts,which is significantly different from institutionalized individual bankruptcy.The"Implementation Opinions on Centralized Clearing of Personal Debt(Trial)"issued by the Wenzhou Intermediate People's Court is a gap period before the legislation on personal bankruptcy.Within the existing legal framework,pilot work on centralized clearing of personal debt can be carried out in accordance with the law.Through mechanism construction,measures such as improving personal property reporting and property investigation and audit systems can be taken to prevent debt evasion and abandonment The construction of credit systems such as centralized liquidation of personal debts and conditional debt relief and credit repair based on bankruptcy principles,as well as a more reasonable debt collection and relief system for commercial banks,provide more judicial practical basis for promoting the establishment of a personal bankruptcy system in China.Solve the effective exit mechanism for"execution failure"cases,substantively resolve the"guarantee chain"issue of financial debt,loosen the bonds for entrepreneurs with entrepreneurial and innovative capabilities,and create opportunities for"honest and unfortunate"debtors to obtain rebirth.It can be said that the centralized liquidation procedure of personal debts by the Wenzhou Intermediate People's Court has made a good start for China's future personal bankruptcy legislation.

Litigation Department(Labor Law)

Brief description of the case:

Wang is an employee of Wuxi Zhaoshun Stainless Medium Plate Co.,Ltd.(hereinafter referred to as Zhaoshun Company),and Zhaoshun Company has not paid social insurance for Wang.

On January 8,2014,Mr.Wang issued a letter of commitment,which stated,"Due to my own reasons,I am not willing to pay social insurance.I promise to bear the economic losses and legal consequences arising therefrom,and will not have any labor disputes with Zhaoshun Company."

On September 28,2014,Mr.Wang proposed in writing to terminate the labor relationship with Zhaoshun Company on the grounds that Zhaoshun Company had"failed to pay my salary in full and in time for a long time and failed to pay social insurance in time".

Wang filed an arbitration application with the Jiangyin Labor and Personnel Dispute Arbitration Commission on the grounds of requiring Zhaoshun Company to pay economic compensation,which ruled that Wang's arbitration request was not supported.Wang was not satisfied,so he filed a lawsuit with the People's Court of Jiangyin City,Jiangsu Province.After two trials,Wang failed to support Wang's claim,and Wang applied to the Jiangsu Higher People's Court for a retrial.

Justification:

The court held that Mr.Wang issued a letter of commitment on January 8,2014,which stated:"I,Mr.Wang,ID No.:××。The company has paid social insurance for its employees since January 2007.Due to my own reasons,I am still unwilling to pay social insurance.I promise to bear the economic losses and legal consequences arising therefrom,and will not have any labor disputes with Wuxi Zhaoshun Stainless Medium Plate Co.,Ltd."We hereby undertake."Mr.Wang did not provide evidence to prove that the signing of the letter of commitment was fraudulent,intimidating,or taking advantage of others,so the letter of commitment indicates his true intention.

Wang's unwillingness to pay social insurance premiums due to his own reasons is a legitimate punishment of his own rights and should bear the corresponding consequences.Currently,Wang claims economic compensation on the ground that Zhaoshun Company did not pay social insurance for him,which violates the principle of good faith.The court of first instance did not support his claim,and there was no improper.

Judgment result:

In summary,judgment:Wang's retrial application was rejected.

Case analysis:

According to the relevant regulations of the Jiangsu Provincial High Court,if an employer fails to establish a social security account for the employee due to subjective malice,or fails to fulfill the obligation to pay social insurance premiums,or the employee proposes to terminate the labor contract and claim economic compensation based on the employer's failure to pay social insurance premiums in accordance with the law,support should be provided.Other reasons not attributable to the employer's unilateral reasons,such as insufficient social insurance payment period,insufficient payment,or failure to participate in a single insurance type,are generally not supported if the worker terminates the labor contract and claims to pay economic compensation on this ground.

However,Lawyer Gao Peng hereby reminds the employer that,on the surface of this case,the employee's request for economic compensation has not been supported by the people's court.However,if the employee"voluntarily waives"social security,resulting in losses,the employer still has a huge legal risk that needs to be compensated.Participating in social insurance for employees is a legal obligation of employers and is a mandatory provision of law.No individual or unit may exempt this obligation in any form.By way of agreement between the employer and the employee,the employee"voluntarily applies"for not participating in social insurance,and the social insurance expenses are included in the salary payment.This violates the mandatory provisions of social insurance,and is inconsistent with the security function of social insurance.It is an invalid act,and the losses caused to the employee should be borne by the company.

(This article is translated by software translator for reference only.)