Top Ten Measures of Shandong Higher People's Court to Serve and Ensure High Quality Development of Private Economy
On April 23rd, the Shandong Provincial Court held a press conference to ensure the high-quality development of the private economy through service guarantees. Wu Jinbiao, member of the Party Group and Vice President of the Provincial Court, introduced the background, main contents, and next steps of the formulation of the Ten Measures for Ensuring the High quality Development of the Private Economy through Service guarantees. Yang Qingshan, a second level researcher of the Provincial Federation of Industry and Commerce, reported on the cooperation between the Provincial Federation of Industry and Commerce and the Provincial Court. Lu Tongmin, Deputy Director of the Research Office of the Provincial Court, released the top ten typical cases of ensuring the high-quality development of the private economy through service guarantees.
1. Strengthen the concept of equal protection of the judiciary. Provide equal judicial protection for all types of market entities, ensuring equal litigation status, equal litigation rights, and equal application of the law. Avoid neglecting the legitimate demands of private enterprises under the pretext of protecting state-owned assets and safeguarding public interests, and effectively protect the property and personal rights of private enterprises and entrepreneurs.
Interpretation: The key to ensuring the development of private enterprises through service lies in implementing the concept of "equal protection". Many small and micro private enterprise operators have reported that they often receive unequal treatment when they have disputes with state-owned and large enterprises. Therefore, the opening of the "Ten Articles" emphasizes the need to protect private enterprises equally in accordance with the law, rectify judicial concepts, and eliminate doubts about private enterprises.
2. Adhere to the principle of modesty and prudence in judicial proceedings. Adhere to the principle of legality and presumption of innocence, strictly distinguish the boundary between economic disputes and economic crimes, accurately grasp the constituent elements of illegal business operations, contract fraud, tax evasion, bribery and other crimes, prudently adopt criminal punishment measures, and handle leniently in accordance with the law if it meets the conditions for leniency in pleading guilty and accepting punishment. Timely review appeal cases involving private enterprises and entrepreneurs in accordance with the law, and resolutely correct wrongful cases.
Interpretation: The exercise of judicial power by the people's courts is related to the survival of private enterprises. It is necessary to strictly grasp the boundary between economic disputes and economic crimes, carefully adopt punishment measures, and prevent easy conviction. Even if convicted, it is necessary to accurately grasp the constituent elements of different crimes and avoid heavy sentencing for minor offenses. At the same time, it is stipulated to correct wrongful cases involving private enterprises in accordance with the law, boost the confidence of private entrepreneurs in development, and facilitate relief channels.
3. Standardize the application of compulsory measures in accordance with the law. Be cautious in applying criminal coercive measures, adept at using non custodial measures, and promptly change coercive measures for those who have been detained but meet the conditions for release on bail and residential surveillance. It is strictly prohibited to seal, seize, or freeze enterprise assets beyond the scope or standards. Except for enterprises that need to be ordered to close according to law, necessary working capital and current accounts may be reserved for enterprises where conditions permit.
Interpretation: In practice, whether it is the sealing, seizure, freezing of corporate property or the adoption of compulsory measures against corporate family members, there are varying degrees of non-standard issues. Therefore, this article aims to regulate the application of compulsory measures in various judicial fields, in order to minimize the impact on the production and operation of enterprises.
4. Encourage and support market trading activities in accordance with the law. Accurately assess the contractual validity of various transaction modes and innovative transaction structures, and strictly limit the scope of determining the invalidity of contracts. For contracts that are required by laws and administrative regulations to go through approval, registration, and other procedures to become effective, parties are allowed to complete the procedures before the judgment, in order to promote the legality and validity of the contract as much as possible.
Interpretation: In judicial practice, some judges have not yet emerged from the "regulatory" thinking of economic transactions. Only when as many transactions as possible are reached and successfully completed, can the market be dynamic. This article aims to emphasize the fundamental position of the principle of private law autonomy of will, and to determine the effectiveness of contracts from the perspective of encouraging market transactions, in order to minimize transaction risks for private enterprises.
5. Relieve the problem of difficult and expensive financing for private enterprises in accordance with the law. Review the behaviors of financial institutions such as loan suspension, loan pressure, and loan withdrawal in accordance with the law, actively use mediation and other dispute resolution methods, and promote banks and enterprises to overcome difficulties together. Review the business activities of small loan and leasing companies in accordance with the law, and ensure the supplementary role of private financing in formal finance. Review the legal effectiveness of loans between enterprises in accordance with the law, and protect temporary fund lending activities conducted by enterprises for production and operation needs. Any behavior in private lending that violates or indirectly violates the statutory interest rate red line through unreasonable fees shall not be supported by law.
Interpretation: This is the most frequently reported and headache inducing issue for private enterprises. This article focuses on financing difficulties and high financing costs, and stipulates four aspects, namely, regulating the behavior of financial institutions such as loan withdrawals in accordance with the law; Encourage the complementary role of private finance; Protecting temporary fund lending between enterprises in accordance with the law; Restrict the unreasonable collection of high interest rates such as high interest loans and routine loans.
6. Handle cases involving enterprise mutual insurance in accordance with the law. In a guarantee case, if the guarantor provides general guarantee and the creditor only sues the guarantor, the debtor should be added as a joint defendant; If the guarantor provides joint and several liability guarantee and the creditor only sues the guarantor, the debtor may be added as a joint defendant. In the execution of a case, if the debtor has assets available for execution, priority shall be given to executing the debtor.
Interpretation: In practice, private enterprises have a high incidence of mutual insurance cases, especially in our province. Many high-quality enterprises have fallen into business difficulties or even closed down due to joint guarantees. This provision aims to avoid the phenomenon of "handling one guarantee case and bankrupting several high-quality enterprises". In a guarantee case, if the debtor has assets available for execution, they should become the first person responsible for repayment. The guarantor should not be considered for execution just because the debtor's assets are difficult to realize and the guarantor's assets are easy to execute. This article provides for both general guarantee and joint guarantee cases, making a breakthrough in joint guarantee. For joint guarantee cases, if only the guarantor is sued, the debtor can be added to participate in the lawsuit, aiming to avoid the debtor not participating in the lawsuit, which makes it difficult to clarify the facts, and also to prevent the debtor and creditors from colluding to harm the interests of the guarantor.
7. Strengthen the protection of enterprise intellectual property rights in accordance with the law. Intensify the punishment for various acts of intellectual property infringement, improve the litigation evidence rules that are in line with the characteristics of intellectual property cases, and focus on solving the problem of "difficulty in providing evidence" for rights holders. Establish a judicial determination mechanism for infringement damages guided by the market value of intellectual property rights, improve the compensation standards for intellectual property infringement, and focus on solving the problems of low cost of intellectual property infringement and high cost of rights protection.
Interpretation: Many private entrepreneurs have a high demand for increasing judicial protection of intellectual property rights and encouraging independent technological innovation. They generally reflect that intellectual property cases have problems such as difficulty in providing evidence, low cost of illegal activities, and high cost of safeguarding rights. This article has made targeted provisions around the issues strongly reflected by private enterprises.
8. Protect the legitimate rights and interests of private enterprises in government enterprise disputes in accordance with the law. For administrative agencies that violate agreements, commitments, or breach contracts, they shall support the reasonable demands of private enterprises in accordance with the law. Properly handle various cases arising from government planning adjustments and policy changes, and if contracts involving private enterprises cannot be fulfilled due to the above reasons, support the request of private enterprises to return investment rights or compensate for losses in accordance with the law.
Interpretation: There are many instances of the government violating commitments and agreements after attracting investment, which seriously affects the optimization of the business environment. This article not only explicitly provides support for the reasonable demands of private enterprises, but also stipulates that if they are unable to fulfill their obligations due to objective reasons, they shall be legally supported in their requests to return investment rights or compensate for losses.
9. Strengthen the enforcement of debt cases involving private enterprises. Give full play to the role of the execution linkage mechanism and increase the enforcement efforts against those who maliciously evade debt. Enterprises that have fulfilled their obligations under effective legal documents shall promptly block the information on the list of dishonest persons subject to enforcement. Enterprise operators who are truly unable to repay debts and have not engaged in illegal activities such as evading or resisting enforcement shall not be released as dishonest persons subject to enforcement.
Interpretation: This article focuses on three aspects: fully safeguarding the legitimate rights and interests of the winning enterprise, enabling the fulfilling obligation enterprise to restore credit as soon as possible, and accurately grasping the criteria for identifying dishonest persons subject to enforcement.
10.畅通民营企业纠纷解决渠道。提高诉讼服务水平，推行诉讼服务网上办理，实现立案、交费、送达、保全等诉讼服务网上办理、一次办好。加强人民法院与非诉解纷机构的协调配合，加强与工商联的沟通联络，建立共建协作机制，充分发挥商会、行业协会等组织的作用，促进民营企业纠纷的多元高效化解。
解读：解决民营企业的纠纷，司法不能包揽一切，也要充分发挥其他纠纷解决途径的优势。因此，本条一方面规定了优化诉讼服务的内容，另一方面规定了诉调对接的内容，要求加强人民法院与非诉解纷机构的协调配合，尤其是强调和工商联的共建协作问题。
服务保障民营经济高质量发展十大典型案例是：周某、黄某挪用资金宣告无罪案，烟台某制针公司、张某、申某虚开增值税专用发票罪案，威海某投资公司与某数控公司“对赌协议”案，许某诉钟氏公司房屋租赁合同纠纷案，某重工物资公司与某贸易公司企业借贷纠纷案，某中国银行支行与某食品公司保证合同纠纷案，济南某食品有限公司合并破产和解案，山东某建工股份有限公司破产重整案，某开发公司诉某县人民政府、某县国土资源局行政补偿案，某生物科技公司诉某市国土局土地挂牌出让纠纷案。
Information source: China Business Times
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