Minimize the impact to make the enterprise "live better"
Hubei court implements an investigation into the economic impact assessment system of enterprise-related cases
Small, medium and micro enterprises are a new force in national economic and social development, and an important force in expanding employment, improving people's livelihood, and promoting entrepreneurship and innovation.
Since the 18th National Congress of the Communist Party of China, the CPC Central Committee with Comrade Xi Jinping at the core has attached great importance to the development of small, medium and micro enterprises, and has issued a series of policies and measures to support the development of small, medium and micro enterprises.
Exploring the personal bankruptcy system and making major breakthroughs in personal bankruptcy practice; implementing the economic impact assessment system for enterprise-related cases, and striving to minimize the adverse impact of judicial activities on the production and operation of enterprises; innovating the intelligent review of sales contracts, speeding up the handling of cases and reducing the burden on enterprises ... In recent years, courts at all levels have continued to deepen reforms around the prominent problem of "urgency and hope" for small, medium and micro enterprises, and introduced a series of service guarantee measures.
In order to fully demonstrate the effectiveness of the court in assisting the development of small, medium and micro enterprises, and summarizing experience and practices, the Jingwei version of the rule of law will launch a series of reports on "Judicial Reform, Helping the Development of Small, Medium and Micro Enterprises" from today, so stay tuned.
□ Our reporter Liu Zhiyue
□ Liu Huan, a trainee reporter of this newspaper
On March 3, in Dongxihu District, Wuhan City, Hubei Province, in Huili (pseudonym) Industrial Park, workers were busy, and vehicles carrying goods came in and out.
A few months ago, Huili Co., which specializes in purchasing and processing cotton, was insolvent and faced bankruptcy.
"The huge amount of loans and taxes in arrears over the years weighed on me like a mountain, and I often woke up at night." said Xiao Hanqiao, the former head of Huili Company.
The Dongxihu District People's Court of Wuhan City, after obtaining the consent of the person subject to execution, will transfer the execution case to bankruptcy review according to law.
During this period, the court comprehensively researched and judged the impact of the enforcement case on Huili Company and inspected the company's asset status, and believed that the value and possibility of corporate reorganization were high.
In order to save the enterprise as much as possible, the court innovated its work ideas in accordance with the law and decisively introduced the pre-reorganization procedure.
Seeing the pre-reorganization and other information released by the Dongxihu District Court, Mr. Song, who was looking for an expansion project in his hometown, decided to invest.
In the end, the Dongxihu District Court introduced Mr. Song's investment to revitalize the assets of Huili Company.
"If the bankruptcy procedure is not transferred in time, after the assets of Huili Company are disposed of, ordinary creditors will not be able to obtain benefits, and employees will not be able to relocate, which will leave many social problems." Song Weihua, a magistrate of Dongxihu District Court, said.
How to avoid the situation of "handling a case, destroying a company, and running a group of entrepreneurs"?
In order to optimize the legalized business environment and minimize the negative impact of judicial activities on the production and operation of enterprises, from 2020, Hubei courts will explore the establishment and implementation of the "Economic Impact Assessment System for Enterprise-related Cases".
How to use the economic impact assessment system for enterprise-related cases?
What impact has it had on the companies involved?
With these questions in mind, a reporter from the "Rules of Law Daily" recently went deep into the front line to conduct investigations and interviews.
Case handling concept change
Avoid mechanical case handling
"I will firmly establish the belief in law-abiding and compliant operation in the future, so that enterprises can develop long-term on the road of the rule of law, and I will definitely repay the society better..." Received the second instance from the judge of Wuhan Intermediate People's Court to be exempted from criminal punishment When the verdict was issued, Chen Mou said tearfully.
In 2010, in order to seek illegitimate interests, a municipal company in Daye, Hubei Province, the actual person in charge of the unit, Chen Mou, offered 2 million yuan in bribes to state staff.
The court of first instance sentenced the unit to a fine of 200,000 yuan and Chen to a suspended sentence because both the municipal company and Chen constituted the crime of offering bribes.
After the verdict, Chen and the company refused to accept and appealed to the Wuhan Intermediate Court.
During the appeal, Chen mentioned that in addition to the company involved, he was actually responsible for managing a mining company, and had close supply and demand cooperation with domestic and foreign mining companies and non-ferrous metal dealers. influence.
In view of this, the judges of the second-instance collegial panel of the case broke the mindset of stipulating the law, following the procedure, and handling the case, and decided after research that the first-instance court conducted an economic impact assessment of the company involved in the case, and made a decision on Chen. The actually responsible mining company and related companies with which it invests and cooperates will conduct a comprehensive survey on the economic impact of enterprises.
The collegial panel not only sent a working letter to the local market supervision department to understand the situation of the mining company, but also visited the company to conduct a detailed and detailed assessment of the economic impact of the company.
As the judge of the case, Chen Xiaoping, judge of the Criminal Division I of Wuhan Intermediate Court, participated in the field visit and investigation throughout the whole process.
After on-the-spot investigation, visits to relevant enterprises and employees, combined with the factual evidence of the whole case, the social harm of the behavior and the circumstances of Chen's confession and punishment, in order to minimize the negative impact of judicial activities on the production and operation of enterprises, the review committee of Wuhan Intermediate Court discussed , the second-instance judgment upheld the first-instance court's conviction and sentencing of the unit and Chen's conviction, and commuted Chen's sentence to be exempted from criminal punishment.
In order to effectively convey judicial warmth, the judges of Wuhan Intermediate Court also attached a message from the judge to the text of the judgment, and went to the enterprise again to pronounce the judgment and interpret the law, guiding the enterprise to believe in the law in future operations, and cultivate the ability to find the law and act according to the law in the future. , good behavior and habits to solve problems by the law.
At the scene of the sentencing, Chen not only made his remarks as mentioned above, but also paid a fine of 200,000 yuan on the same day.
The case-handling philosophy of Chen Xiaopings is exactly the original intention of Hubei courts to implement the economic impact assessment system for enterprise-related cases.
In January 2020, the Higher People's Court of Hubei Province issued the "Interim Provisions on Economic Impact Assessment of Enterprise-related Cases" (hereinafter referred to as the "Regulations"), which clearly stipulates that when one or both parties involved in the case handled by the people's court are an enterprise, In the process of case filing, preservation, trial, enforcement, judicial disclosure and trial limit management, analyze and evaluate the possible impact on the production and operation of the enterprise involved in the case, and make effective prevention and disposal, so as to reduce the negative impact of judicial activities on the production and operation of the enterprise. At a minimum, the political effect, legal effect and social effect of case handling should be organically unified.
"This system, externally, is a good starting point and entry point for the judicial service economy; internally, it is also of great help in changing judges' trial concepts and working methods." Drafter of the "Regulations", Hubei High School Xia Yong, deputy chief of the second division of the Civil Division of the Court, said.
Tong Dehua, deputy dean of the Institute of Integrity and Integrity of Zhongnan University of Economics and Law and professor of the School of Criminal Justice, has long been concerned about the construction of a legalized business environment.
"It is very necessary to establish an economic impact assessment system for enterprise-related cases." Tong Dehua believes that in modern enterprise management, there are many unpredictable risks, and the judicial organs should properly respect the facts of enterprise operation. Timely change the concept of handling cases, and strive to create a more relaxed environment for the development of private enterprises.
Under the framework of the economic impact assessment system for enterprise-related cases, the Hubei Higher Court has also formulated working guidelines for serving the legalized business environment in the fields of criminal, civil, administrative trial and enforcement to comprehensively protect and serve market players.
In the opinion of the person in charge of the Second Civil Tribunal of Hubei Higher Court, the economic impact assessment system for enterprise-related cases has put forward higher requirements for judges to handle cases.
"On the one hand, we must protect the legitimate rights and interests of creditors, and on the other hand, we must uphold the concept of good faith and civilized justice. If we cannot handle a single case, we will bring down the enterprise." The person in charge said.
case-by-case assessment
Effectively avoid risks
The lawsuit is won, but the business collapses.
Many years ago, the head of a real estate development company in Wuhan burst into tears when faced with a judge because he was involved in several economic disputes.
He said that the first-instance and second-instance judges tried cases fairly and were conscientious and dedicated to their work. He was very grateful, but because the plaintiff applied for preservation many times, the company "couldn't bear it" over time, and eventually "won the lawsuit and lost the market."
"Pre-litigation property preservation can be fatal to the company involved. Once property is seized, especially the capital account, it will have a huge impact on the production and operation of the company." Yang Qingjiuyan, president of the case filing division of the Hongshan District People's Court in Wuhan Among them, the assessment of property preservation is the best way to reflect the economic impact assessment of enterprise-related cases at the stage of filing a case.
How to realize the equal protection between the property preservation application and the applicant?
The Hongshan District Court has explored providing guarantees through financial institutions and pre-set property preservation counter-guarantees in advance.
Since the operation of the mechanism in May 2021, the Hongshan District Court has issued a total of 26 rights registration certificates for property preservation cases, with a total guarantee amount of 165 million yuan, successfully resolving dozens of cases involving property preservation brought by the parties to the production and operation of market players. Negative impact.
The pre-work mechanism for property preservation and counter-guarantee is one of the innovations made by Hubei courts to implement the economic impact assessment system for enterprise-related cases.
Hubei courts also insisted on putting the non-litigation dispute resolution mechanism at the front, and actively introduced enterprise-related cases into the pre-litigation mediation process.
In April 2020, a real estate company in Jiangxi sued a financial company in Wuhan to the Wuhan Intermediate Court due to a mortgage loan dispute, demanding repayment of principal and interest totaling about 250 million yuan.
After conducting the economic impact assessment of the enterprise-related case at the filing stage, Wang Liling, a judge of the first court filing court in Wuhan, found that the facts of the case were clear, the evidence was sufficient, and both parties had the will to mediate. He Lei, mediator of Wuhan East Lake Financial Civil and Commercial Mediation Center in Wuhan Intermediate Court.
He Lei preached the policy to the two companies in terms of timeliness, costs, etc., which eventually led to a consensus between the two parties, and the plaintiff withdrew the lawsuit.
A week later, the defendant repaid 250 million yuan to the plaintiff as agreed, and the mortgage was released.
At present, the two-level courts in Wuhan adhere to the principle of "one case, one evaluation, and key links must be evaluated" for all enterprise-related cases, and carry out regular random inspections.
"Strictly implementing the economic impact assessment system for enterprise-related cases is the key to successfully handling enterprise-related cases and turning them into iron cases," said Liu Taiping, president of the Wuhan Intermediate People's Court.
Liu Xinrong, a judge of the Civil Court of Wuhan Intermediate People's Court, has a deep understanding of this.
He has undertaken a dispute involving two companies.
In 2021, a private real estate company participated in a major renovation project of a village within a city in Wuhan, and had a dispute with its partner over compensation for demolition and relocation. The amount of the lawsuit was huge.
Liu Xinrong actively convened all parties to communicate and negotiate through the economic impact assessment of enterprise-related cases, and finally prompted the two parties to reach a mediation agreement.
"With the escort of the rule of law, enterprises will move more steadily and faster, and entrepreneurs will feel more at ease." In the opinion of Bian Tao, general manager of this private real estate company in Wuhan, how a local court handles cases often depends on It can reflect the quality of a local business environment.
Having been engaged in civil trials for many years, Liu Xinrong has his own set of economic impact assessment methods for enterprise-related cases.
For enterprises with great development potential and good reputation, increase mediation efforts, strive to resolve disputes through mediation, and achieve a win-win situation; for enterprise-related cases with large disputes between the parties that cannot be mediated, fast trial and quick conclusion under the premise of fair trial in accordance with the law, Efforts are made to minimize the impact of litigation on the production and operation of enterprises.
In the implementation stage, the economic impact assessment of enterprise-related cases is also emphasized.
Yu Yinghui, director of the Enforcement and Implementation Division of the Wuhan Intermediate Court, introduced that the implementation of the economic impact assessment system for enterprise-related cases should run through the entire process of implementation: after receiving an application for enforcement, call or send an urging notice to companies that clearly have the ability to perform to promote enforcement. Reconciliation before the execution; for the person subject to execution who automatically performs their obligations, immediately verify the lifting of the untrustworthy height limit measures and restore credit; for enterprises or individuals in need, timely issue a "good faith certificate", and comprehensively reduce the possible impact of the execution measures on the business development of the enterprise. negative impact.
The economic dispute between two natural persons involved a partial shareholding in an auto parts company in Wuhan Economic and Technological Development Zone.
According to the application of the executor, the Wuhan Intermediate Court froze part of the company's equity.
At the end of 2021, the company reported to the Wuhan Intermediate Court that due to the freezing of shares, its undistributed profits would be converted into registered capital, which would affect the company's expansion of production.
After receiving the enterprise's application, Li Shuhong, deputy director of the Executive Implementation Division of Wuhan Intermediate Court, led the team to conduct a comprehensive evaluation of the economic impact of enterprise-related cases, and it was clarified that the increase in the enterprise's capital would not necessarily affect the impairment of equity value.
In order to minimize the impact of the implementation measures on the operation of the enterprise, the Wuhan Intermediate People's Court replied to the relevant market supervision and management departments, agreeing that the enterprise should increase the capital in the same proportion as all shareholders.
In just 3 days, the company successfully helped the company to go through the capital increase procedures and realize the expansion of production.
"This is a typical example of the application of the enterprise-related economic impact assessment system to the specific details of case handling and taking specific measures to help the enterprise. The implementation work is closely related to the development of the enterprise, and accurate and appropriate implementation measures are of great help to the sound development of the enterprise." Li Shuhong Say.
Strictly guard against formalism
Introduce evaluation mechanism
"The implementation of the economic impact assessment system for enterprise-related cases and the operation of the 'green channel' for enterprise-related cases are mere formalities and superficial. It seems to be bustling but ineffective." On February 23, members of the Organization Institute of Hubei High Court The person in charge of the relevant department carried out a training inspection at the Huanggang Intermediate People's Court.
When expressing his opinion, the person in charge of the Second Civil Division of the Provincial Higher Court bluntly stated that the courts at both levels in Huanggang have been hot and cold in the construction of a rule-of-law business environment, and some grassroots courts have not even conducted special research and deployment on this issue.
In the process of implementing the economic impact assessment system for enterprise-related cases, how to prevent formalism?
Wuhan Intermediate People's Court embedded the economic impact assessment form of enterprise-related cases into the trial management platform, realizing the one-click generation of enterprise-related case assessment forms and approval step by step; developed the economic impact assessment function module of enterprise-related cases, and realized the evaluation index of "assessment rate of enterprise-related cases" Automatic statistics, analysis functions, and monthly reports.
The Wuhan Intermediate Court also regularly conducts random checks and reports on the completion of the electronic assessment form for the economic impact of enterprise-related cases, and incorporates the assessment results into the special assessment of trial performance.
In 2021, the Wuhan Intermediate People's Court will inspect the completion of the electronic assessment forms for the economic impact of more than 130,000 enterprise-related cases concluded by the city's courts 10 times, and issue 11 letters of supervision.
The Xiangyang Intermediate People's Court refined the economic impact assessment system for enterprise-related cases, and selected the "Economic Impact Assessment Form for Enterprise-related Cases" for civil, administrative, criminal, and enforcement categories according to the type of cases, and pioneered the business environment supervision card for handling enterprise-related cases.
"The people's court's economic impact assessment of enterprise-related cases does not mean that the judiciary has variability in the enforcement of laws, but shows that through the economic impact assessment, measures that are in line with the survival status and development needs of enterprises, especially small and medium-sized enterprises, with minimal social shock and Judicial measures with the lowest social loss and fairness and rationality are more necessary." Li Qunxing, vice president of Hubei Higher People's Court, believes.
How to further improve the economic impact assessment system for enterprise-related cases?
Tong Dehua suggested that while urging judges to do a good job of evaluation, we should further improve the economic impact evaluation system of enterprise-related cases. We can learn from the corporate compliance reform of procuratorial organs and introduce a third-party evaluation mechanism to evaluate enterprises, so as to promote more scientific and standardized evaluation and reduce the number of judges. of worries.
At present, Hubei Higher People's Court has made the full implementation of the economic impact assessment system of enterprise-related cases as a key content of the "Year of Continued Deepening of Legalized Business Environment Construction".
This year, the Hubei Higher Court will further promote the standardization, proceduralization and informatization of the economic impact assessment system for enterprise-related cases; it will keep a comprehensive record of the economic impact assessment of enterprise-related cases and attach a supplementary volume, and conduct random inspections, comments and reports.
"We will also improve the embedding of the economic impact assessment form of enterprise-related cases into the trial management process, to ensure that every link of case filing, trial, and enforcement must be evaluated before entering the corresponding case-handling procedures, so that the application of the system can be marked, reverse-checked, and counted. "Li Qunxing said.