On July 24th, the General Office of the Central Committee and the General Office of the State Council jointly issued the Opinions on Further Reducing Students' Homework Burden and Off-campus Training Burden, which put forward requirements for off-campus training institutions, such as strict examination and approval of discipline training institutions, prohibition of capitalized operation and strict control of class opening time, which brought great impact and changes to the off-campus training industry and affected the normal performance of relevant housing lease contracts. Based on the nature of the policy and the possible impact on the performance of the lease contract, the author makes a brief analysis and puts forward some suggestions for readers' reference.
I. Opinions of China Private Education Association
On August 9th, 20021year, China Private Education Association (hereinafter referred to as the China People's Association) publicly released the "Industry Opinions on the Rent of Off-campus Training Institutions", arguing that the announcement of the "Double Drop Policy" constituted a change of situation. Therefore, before the release of the Opinions on Double Reduction, if an off-campus training institution has signed a contract to rent a house for preschool children's online training or preschool children's offline discipline (including foreign languages) training, students in compulsory education stage and ordinary high school students, it can advocate a change of situation according to the relevant provisions of the above-mentioned Civil Code, and renegotiate with the lessor to change the rent standard and lease term. , or negotiate with the lessor to terminate the house lease contract in advance. The lessor should not regard this as a breach of contract, should not collect liquidated damages, and should return the deposit and part of the prepaid rent.
China Association for Democracy and People's Livelihood (ADPL) is a national first-class legal entity, and its industry opinions have certain influence, but they have no legal effect. Whether the lessee can advocate changing the contents of the contract or even withdrawing the lease on the grounds of the release of the "double reduction" policy should also be discussed from the nature of the policy.
Second, the nature of the "double drop" policy?
1, Force Majeure, change of circumstances, or commercial risk?
Does (1) constitute force majeure?
Force majeure refers to unforeseeable, inevitable and insurmountable objective risks. Where the termination of the contract is advocated on the grounds of force majeure, the force majeure factors have reached such an extent that the purpose of the contract cannot be achieved, and the contract cannot be continued to be performed, so it shall be terminated.
Case 0 1 A joint stock company in Pudong, Shanghai v. A supermarket (group) Co., Ltd., judgment of second instance, Shanghai No.1 Intermediate People's Court, (20 17) No.013383.
The court ruled that the court of first instance held that the lease contract signed between a supermarket and a joint-stock company had come into effect, and the judgment was found to be legal and valid, and both parties should abide by it. 20 16, 16 On June 7, a joint-stock company sent a letter to terminate the lease contract between the two parties, on the grounds that the national tax policy had changed significantly and it was force majeure. Force majeure in contract law refers to an objective situation that cannot be foreseen, avoided and overcome. Whether the tax policy changes or not does not belong to the category of force majeure mentioned above. Moreover, the collection of land value-added tax referred to by the joint-stock company does not affect the continued performance of the lease contract between the two parties. Therefore, the joint-stock company does not have the right of rescission as stipulated in Articles 93 and 94 of the Contract Law, and the notice of rescission of the lease contract sent to the supermarket does not have the effect of rescission.
We believe that the Provisional Regulations on Land Value-added Tax in People's Republic of China (PRC) has been implemented since 1994, earlier than the time when the appellant and the appellee signed the lease contract and supplementary agreement. During the performance of both parties, the Appellant never raised any objection to the Appellee as to whether the land value-added tax that the Appellant should bear has changed, and judging from the land value-added tax payment certificate submitted by the Appellant in the first instance, even if there is the fact that the Appellant needs to pay new land value-added tax, the facts in this section are not enough to make the purpose of the lease contract impossible, so the Appellant has no right to terminate the lease contract and supplementary agreement signed by both parties on this ground.
In the house lease contract, the lessor's contract purpose is to collect rent, and the lessee's contract purpose is to use the house in accordance with the agreed purpose and method. As for whether the lessee's purpose can be realized, it is necessary to further analyze the specific agreement on the use of the house lease contract. If you just agree to be a shop or an office, the purpose is not limited to education and training. From the logical point of view of performance, it seems difficult to conclude that the introduction of the "double reduction" policy has caused the lessee to use the house according to the purpose of "shops and offices", so it is difficult to conclude that the purpose of the contract cannot be achieved. However, if the purpose of the house is clearly agreed as "off-campus training" or even the brand of the training institution is restricted, it seems that the purpose of the contract cannot be achieved because of the implementation of the policy.
(2) Does it constitute a change of circumstances or only commercial risks during the performance of the contract?
In terms of constitutive requirements, force majeure needs to have three elements: unforeseeable, inevitable and insurmountable, while the change of circumstances is unforeseeable and unbearable (one party will continue to perform obviously unfair). It can be seen that the two concepts of force majeure and situation change overlap, but the scope of situation change is wider than force majeure, and both of them need the element of "unforeseeable".
The most significant difference between situation change and commercial risk mainly lies in whether the parties can "foresee" when concluding the contract, and whether the changes brought about by the implementation of the "double reduction" policy exceed the reasonable expectation when signing the contract.
On July 7, 2009, the Supreme People's Court issued the Guiding Opinions on Several Issues Concerning the Trial of Civil and Commercial Contract Disputes under the Current Situation (Fa Fa [2009] No.40), which pointed out: "3. The people's court shall reasonably distinguish between changed circumstances and commercial risks. Commercial risks are inherent risks in commercial activities, such as changes in supply and demand, price fluctuations, etc. The change of circumstances is the inherent risk of non-market system that the parties cannot foresee when signing the contract. When judging whether a major objective change belongs to a change of circumstances, the people's court should pay attention to measuring whether the type of risk is unpredictable in advance in the general concept of society, whether the degree of risk far exceeds the reasonable expectation of normal people, whether the risk can be prevented and controlled, and whether the nature of the transaction belongs to the usual range of' high risk and high return', and determine the change of circumstances and commercial risk in a case. "
For example, in the field of housing sales, the Minutes of Meeting of Beijing Higher People's Court on Properly Handling Disputes over Housing Sales Contracts involving Housing Purchase Restriction Policy (2011.12.13) pointed out that the purchase restriction policy "should not be considered as force majeure as stipulated in Article 117 of the Contract Law in judicial practice. The reason is that "the state's macro-control of the real estate market is not a sudden change process that makes all market players unprepared, but a development process that is gradually strengthened and improved from loan restriction to purchase restriction. As a contract with a relatively large amount of subject matter and closely related to the immediate interests of both buyers and sellers, the parties should have a certain degree of foresight and judgment on the real estate market risks and various performance obstacles that may occur after the conclusion of the contract. "
If the state's macro-control over a certain field is long-standing and gradually strengthened and improved, it is difficult to draw the conclusion that the parties are completely unpredictable about the policy, or even further draw the conclusion that the parties should expect and judge it, so the policy should belong to the category of "commercial risk".
In the field of education burden reduction, the state has successively issued a number of policies and opinions. 2065438+March 2007, the official website, the Ministry of Education published the article "Nine Orders for Reducing the Burden Issued by the State in More than 60 Years", in which it was pointed out that the state has issued many documents to reduce the burden of compulsory education, and it is strictly forbidden to make up classes in violation of regulations or study in off-campus cultural classes. On August 20 18, the General Office of the State Council issued the Opinions of the General Office of the State Council on Standardizing the Development of Off-campus Training Institutions (Guo Ban Fa [2065438+08] No.80), which also strictly regulated off-campus training. On July 20 19, the Ministry of Education and other six departments issued the "Implementation Opinions on Standardizing Off-campus Online Training" (Ji Jiao Letter [2065438+09] No.8) to strictly regulate and rectify online education. On June 5438+0 this year, Chen Baosheng, Party Secretary and Minister of the Ministry of Education, delivered a speech at the 20021National Education Work Conference, in which he also proposed to "vigorously rectify off-campus training institutions".
It can be seen that the state's strict supervision over the field of off-campus training and education has always existed, and it cannot be said that it is completely unpredictable. Of course, the strength of this "double reduction" policy and its impact on the off-campus training market may far exceed the previous policies and the reasonable expectations of the parties. This "double reduction" policy requires a significant reduction in off-campus training and a strict reduction in training duration. Under this policy, even if the training institutions can continue to operate, they may be greatly limited by the teaching content and teaching duration, and the operating costs will rise sharply, and the income will also drop sharply, resulting in the loss of income. Continuing to fulfill the lease obligation will lead to serious unfairness.
Based on the above analysis, the author believes that when defining the "double reduction" policy, it is appropriate to focus on the specific impact of this policy on the performance of the housing lease contract and identify it by case analysis.
2. Of course, it is worth noting that only the policies implemented after the signing of the lease contract can affect the continued performance or termination of the lease contract.
Whether it is force majeure or change of circumstances, one of its constituent elements is that the objective facts occurred after the conclusion of the contract and before the completion of the contractual obligations. If this policy is implemented before the conclusion of the contract, it shall be deemed that the parties have considered the risks brought by this policy factor and should not support the idea of dissolving or changing the agreement.
Case 02 The second-instance civil judgment of the Intermediate People's Court of Lanzhou City, Gansu Province, concerning the dispute over the house lease contract between Jingmou Education Technology Company and a real estate development company in Lanzhou, (202 1) Gan 0 1 1883.
The court ruled that the appellant's policy of turning Qilihe government kindergarten into an inclusive kindergarten was a "major situation change". After investigation, governments at all levels have issued policies on inclusive kindergartens, and when the appellant signed this contract, all localities including Qilihe were implementing them. The appellant is a professional organization, which should be clear. The appellant should predict the "major situation change", and the resulting consequences are commercial risks and should be borne by the appellant. The appellant's grounds for appeal cannot be established.
Third, the author's suggestion.
1. For the lessor:
(1) Carefully sign contracts with discipline training institutions. Since new discipline training institutions are no longer approved by local governments, the lessor can sort out whether there are discipline training institutions among the intended tenants and further negotiate with such tenants about the specific lease contents.
(2) Analyze the reasons why the policy cannot be operated after implementation. If a training institution is banned due to its own serious non-compliance problems such as unqualified qualifications, chaotic management, false propaganda, and profit-making links with schools, it should bear the consequences of corresponding illegal operations on its own, and it is more difficult to claim exemption on this ground.
(3) Guide the lessee to carry out other training business. If it is really difficult for discipline training institutions to operate due to policy reasons, the lessor may guide and assist the lessee to carry out non-discipline training business or other business contents, maintain basic operations, and avoid terminating the contract because it is obviously unfair to the lessee to continue to perform the contract.
(4) Strictly manage discipline training institutions. For institutions that can continue to carry out discipline training business, it is suggested to explicitly require training institutions to carry out business according to policy requirements, and adjust training time, training content, charging standards, hiring personnel, etc. In accordance with the law, and require the lessee to issue a letter of commitment for legal operation.
(5) Pay attention to the refund of prepayment. Because the state has regulations that restrict rest days, legal holidays and make-up classes in winter and summer vacations, if the lessee has sold the corresponding training courses and paid in advance, it should ask him to return the prepaid fees or transfer them to other training fees with the consent of the consumers. Especially for the lessee who can't continue to operate, we should pay close attention to the refund of advance payment to avoid the situation that the lessee withdraws the lease without authorization and the consumer directly asks the mall for a refund.
(6) Introduce new formats such as non-discipline training. For non-disciplinary training institutions, it is also advisable to pay more attention to the detailed rules for the division of disciplinary and non-disciplinary categories, and make predictions and responses to specific regulations. In view of the country's vigorous promotion of enriching students' study and spare time life, the following formats can be properly considered to introduce non-disciplinary classes and spare time venues for young people.
(7) Pay active attention to new policy trends. The "double reduction" policy is piloted in nine cities including Shanghai. Previously, Shanghai has published the article "Taking Multiple Measures to Reduce the Burden of Students' Homework and Off-campus Training", suggesting that Shanghai will formulate rules and regulations such as the Implementation Measures for the Establishment and Management of Private Training Institutions in Shanghai, the Regulations on the Management of Training Funds of Training Institutions in Shanghai, the Measures for the Credit Management of Private Training Market in Shanghai, and the Classification Standard of Training Institutions. It is suggested to pay more attention to the relevant regulations and the detailed rules for the implementation of the double-drop policy in Shanghai.
2. For the lessee:
(1) actively negotiate with the lessor to change or terminate the contract. After the implementation of the policy, all localities, especially pilot cities, have carried out rectification activities. If the training institution does have operational difficulties, it may organize relevant materials to actively negotiate with the lessor to adjust the rent and lease term.
(2) Actively cooperate with policy adjustment and promote business transformation in a timely manner. Discipline training institutions can also respond to the policy, broaden the scope of non-discipline training business, gradually transform, minimize losses and maintain operations.
(3) Properly handle refund disputes. If the course fees have been received in advance, the lessee should negotiate with the consumers in time and properly handle them by carrying forward the fee types, so as to avoid the situation that the institution can not continue to operate due to large-scale refund as much as possible.