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Original title: Protection of civil rights and improvement of legal protection
What are the exceptions to “the law is not retroactive”? What conditions can priority custody of the minor obtain? What should I do if the company empties itself by providing guarantees beyond its authority? Can I sue if my personal information is breached? These questions will be answered in the supporting judicial interpretation of the Civil Code published by the People’s Supreme Court.
As of January 1, 2021, the “Civil Code of the People’s Republic of China” will be implemented. In order to ensure the uniform and correct application of the Civil Code and to meet the needs of the people for a better life, the People’s Supreme Court held a press conference on December 30 to inform the comprehensive review of judicial interpretations and formulation of the first batch of judicial interpretations in support of the Civil Code.
According to He Rong, Executive Vice President of the Supreme People’s Court, the Supreme Law has thoroughly cleaned 591 judicial interpretations and related normative documents. A total of 364 cases that are consistent with the provisions of the Civil Code have not been modified and continue to apply; a total of 111 cases that need to be modified in terms of names and some clauses will be implemented on January 1, 2021 after the revision is promulgated; court interpretations and related decisions to abolish A total of 116 regulatory documents were invalidated on January 1, 2021.
At the same time, the Supreme Law has formulated 7 new judicial interpretations to complement the Civil Code, which will be implemented simultaneously with the Civil Code. These seven judicial interpretations deal respectively with the temporary validity of the application of the Civil Code, system of guarantees, property rights, marriage and family, successions, construction contracts, labor disputes, etc.
Decidedly “no” to domestic violence
Reporter: Civil Code marriage and family are closely related to each family and individual. The Marriage and Family Compilation contains the largest number of judicial interpretations. What are the considerations?
He Xiaorong, Vice Dean of the Supreme Court: The family is the cell of society. The main considerations in the formulation of this review: First, promote harmony and stability in marriage and family. Pay attention to guide the establishment of good family upbringing, family style and promoting family virtues. For example, on the basis of the Domestic Violence Act that clearly stipulates domestic violence, the identification of frequent and persistent domestic violence as abuse reflects the distinctive value orientation of resolutely saying “no” to domestic violence.
The second is to focus on protecting the legitimate rights and interests of women, minors, the elderly and the disabled. For example, it further refines the provision to change the guardian of a person without capacity for civil conduct in legal circumstances, and the new guardian initiates a divorce suit on their behalf; in the custody of minor children, the principle of favoring minors applies. Respect the true wishes of children over 8 years old and remove the original 10-year rule.
The third is to focus on coordinating the system. The return of marriage law to the civil law system is an important result of the compilation of the civil code. Consequently, the specific normative design of the judicial interpretation of the marriage and family compilation has been systematically integrated.
External guarantees of listed companies must be publicly disclosed in resolutions
Speaker: The company’s external guarantee requires a resolution from the company’s board of directors or the shareholders’ meeting. The company violates the provisions of the Public Limited Companies Law. Is the guarantee effective? In practice, the legal representatives of some listed companies have exceeded their authority to grant guarantees on behalf of the companies, which has led to the emptying of the assets of the listed companies What are the countermeasures in the judicial interpretation of the guarantee system ?
Liu Guixiang, Ministerial Deputy Commissioner of the Supreme Legal Review Committee: The legal representative of the company has not provided external guarantees without a resolution of the shareholders’ meeting or the board of directors, and constitutes an ultra vires representative. Whether the guarantee contract signed in the case of an ultra vires representative is effective for the company depends on the goodwill of the counterparty. If the counterpart is in good faith, the company will assume responsibility for the guarantee if it is effective for the company; If the counterparty is not in good faith, the guarantee contract will not be valid for the company and the company will not assume responsibility for the guarantee. Good faith refers to the fact that the counterpart does not know or should not know that the legal representative has exceeded his authority to sign the contract.
Listed companies are public companies and involve the interests of many small and medium investors. To protect the interests of investors, the law clearly stipulates that listed companies have an obligation to disclose information, including warranty issues.
The Judicial Interpretation of New Guarantee has provided special provisions on the external guarantee provided by listed companies. The external guarantee of a listed company must not only be resolved by the board of directors or the general meeting of shareholders in accordance with the company law, but also to make the resolution public. If the creditor enters into a security agreement with a listed company on the basis of publicly disclosed information, the security is valid and the listed company assumes responsibility for the security. If the creditor does not enter into a guarantee contract based on the externally guaranteed information publicly disclosed by the listed company, the guarantee contract will not be effective for the listed company and the company will not assume the guarantee liability or other liability for indemnification.
Improve the scope of personal injury compensation
Reporter: The edition of personality rights is the axis and axis of the Civil Code. What are the particularities in the review and formulation of the judicial interpretation of this edition?
He Xiaorong: The independent compilation of personality rights demonstrates the position of the people and the humanistic care of the Civil Code. The People’s Supreme Court met the urgent needs of people for the protection of personal dignity and personality rights in the new era, and reviewed judicial interpretations on compensation for personal injuries and other disputes related to personality rights. :
Increase the cause of civil cases such as voice protection, protection of personal information and court orders for infringement of the moral rights of the applicant.
The connotation and scope of compensation for personal injuries has been improved, that is, the material rights of the personality to life, body and health have been violated, and the scope of compensation includes material damage and mental damage.
It is added that the close relatives of a deceased natural person have the right to claim compensation for mental damage, the object of protection of compensation for mental damage is adjusted to “personal rights and interests” or “specific objects of personal importance”.
Summarize practical trial experience and increase the requirement that dependent living expenses be included in disability compensation or death compensation to better protect the rights and interests of victims.
The assisted worker’s liability for compensation in the event of damage caused by the worker’s unpaid care activities has been improved and the assisted worker’s right to compensation has been added.
Increase the cause of the “personal information protection dispute”
Journalist: What are the main amendments to the cause of this civil case?
Yang Wanming, Vice President of the Supreme Court: A systematic and comprehensive system of civil cases is of great importance in facilitating the litigation of litigants, regulating and guiding civil suits. This important revision is reflected in two aspects:
First, add the new Civil Code bright spot system to the cause of civil cases. For example, in order to strengthen the protection of personal information, the cause of “personal information protection disputes” has been added. In order to quickly stop illegal acts that seriously violate personality rights, the reason for the “court order on the violation of the plaintiff’s personality rights” has been added. To highlight the “green principle” of the Civil Code, some specific cases have been added that involve ecological and environmental protection. In order to fully protect the healthy growth of minors, the case of “Civil Litigation of Public Interest for the Protection of Minors” has been added. In addition, dozens of reasons have been added to the Civil Code for the protection of voice, the right of residence and factoring contracts.
Second, this amendment adds the first-level cause of “special procedural procedure”, and to it are added the corresponding “public interest litigation”, “third party revocation lawsuit” and “objection trial in the enforcement procedure” . And so on, further improve the civil case system.
Clear rules of inheritance distribution
Journalist: The review and formulation of the judicial interpretation of the inheritance edition of the Civil Code has attracted widespread attention. What are the highlights of the review and formulation of the judicial interpretation of the inheritance edition?
He Xiaorong: The inheritance system is the basic system for inheriting wealth after the death of a natural person. As individuals and families own more and more property, there are more and more disputes caused by inheritance. The main highlights of the judicial interpretation of this succession are:
One is to focus on promoting the core values of socialism. When it is evident that no one inherits the inheritance and no one is a legacy, if someone other than the heir supports the heir more or depends on the heir to support, the corresponding inheritance will be assigned.
The second is to meet the needs of diversified forms of care for the elderly. The Inheritance Edition of the Civil Code has broadened the main scope of the supporter in the legacy and support agreement, and judicial interpretation has revised the relevant provisions to properly handle related disputes in practice.
The third is to truly respect the true will of the testator. In order to protect the true will of the testator to dispose of his property, the Inheritance Edition of the Civil Code eliminated the provisions of the Succession Law on the priority of the validity of notarial wills. In this review and cleaning, the provisions of “If there is a notarized will, the last notarized will shall prevail.”
The fourth is to ensure the smooth division of the legacy. The inheritance edition of the Civil Code has recently added a legacy admin system. To allow the system to be connected effectively with practice, the relevant provisions of the judicial interpretation have added that heirs who renounce the inheritance can declare to the administrator of the inheritance in writing to ensure the proper functioning of the administration system of the Heritage.
(Our newspaper, Beijing, December 30, by our reporter Jin Hao)
