The Measures for the Administration of Legal Advisers of State-owned Enterprises was deliberated and adopted at the 1 8th Director's Office Meeting of the State Council State-owned Assets Supervision and Administration Commission in May 2004, and came into force on1June 2004.
I. Legal Advisor of the Company
Enterprise legal adviser refers to an internal professional who has obtained the qualification of enterprise legal adviser and is employed by an enterprise to specialize in enterprise legal affairs. The qualification certificate of enterprise legal adviser must pass the national unified examination of enterprise legal adviser qualification and be obtained after passing the examination.
The enterprise legal adviser shall follow the following working principles:
(1) Practicing in accordance with national laws, regulations and relevant provisions;
(two) to safeguard the legitimate rights and interests of enterprises according to law;
(three) to safeguard the legitimate rights and interests of the owners of state-owned assets and other investors;
(four) to prevent legal risks in advance, legal control in the event, supplemented by legal relief afterwards.
Enterprise legal counsel shall enjoy the following rights:
(1) To be responsible for handling legal affairs in enterprise management and decision-making;
(two) to put forward opinions and suggestions on acts that damage the legitimate rights and interests of enterprises, investors and violate laws and regulations;
(three) according to the needs of the work to consult the relevant documents and materials of the enterprise, and ask the relevant personnel of the enterprise;
If an enterprise refuses to adopt the opinions and suggestions put forward by the enterprise legal adviser in Item (2) of the preceding paragraph, causing great economic losses and seriously damaging the legitimate rights and interests of the investor, the legal adviser of the subsidiary enterprise of the invested enterprise may reflect to the invested enterprise, and the legal adviser of the invested enterprise may reflect to the state-owned assets supervision and administration institution.
The enterprise legal adviser shall perform the following obligations:
(1) Abide by national laws, regulations and relevant provisions, as well as enterprise rules and regulations, and abide by professional ethics and practice discipline;
(two) to perform the duties of enterprise legal adviser according to law;
(three) to be responsible for the legality of the legal opinions, legal documents and other legal affairs;
(4) Keeping state secrets and business secrets of enterprises;
(five) other obligations that should be fulfilled by laws, regulations, rules and enterprise regulations.
Second, the general counsel of the enterprise
The general counsel of an enterprise refers to a senior manager who has the qualification of enterprise legal counsel and is employed by an enterprise and is fully responsible for enterprise legal affairs. The general counsel of an enterprise shall be responsible to the legal representative or general manager of the enterprise. Large enterprises set up general counsel.
The general counsel of an enterprise shall meet the following conditions:
(a) support and implement the basic line, principles and policies of the party and the state, handle affairs impartially and strictly abide by the law and discipline;
(two) familiar with enterprise management, with a high level of policy and strong ability of organization and coordination;
(3) Proficient in legal business, with work experience and ability to deal with complex or difficult legal affairs;
(4) Having the qualification of enterprise legal adviser, and having served as the principal responsible person in the management department at or above the middle level of the enterprise for 3 years; Or be employed as an enterprise-level legal adviser and the head of an enterprise legal affairs agency.
The general counsel of an enterprise shall perform the following duties:
(a) to be fully responsible for the legal affairs of the enterprise, and to coordinate and handle the legal affairs in the decision-making, operation and management of the enterprise;
(two) to participate in major business decisions of the enterprise, to ensure the legitimacy of the decision, and to put forward opinions on the prevention of relevant legal risks;
(three) to participate in the formulation and implementation of important rules and regulations of enterprises, and to establish and improve the legal affairs institutions of enterprises;
(four) to be responsible for the legal publicity, education and training of enterprises, and to organize the establishment of the business training system for enterprise legal consultants;
(five) put forward rectification opinions on the illegal acts of enterprises and their subordinate units, and urge or assist the relevant departments to carry out rectification;
(six) to guide the legal affairs of the subordinate units, and put forward suggestions for the appointment and removal of the legal affairs leaders of the subordinate units;
Third, corporate legal affairs institutions.
Enterprise legal affairs agency refers to the functional department established by the enterprise to undertake enterprise legal affairs, and is the practice agency of enterprise legal adviser. Large enterprises shall set up specialized legal affairs institutions, and other enterprises may set up legal affairs institutions as needed. Enterprises shall, according to the needs of their work, provide legal affairs institutions with enterprise legal advisers.
The enterprise legal affairs institution shall perform the following duties:
(a) the correct implementation of national laws and regulations, put forward legal opinions on major business decisions of enterprises;
(2) Drafting or participating in drafting and reviewing important rules and regulations of the enterprise;
(3) Managing and examining enterprise contracts and participating in the negotiation and drafting of major contracts;
(4) Participating in major economic activities such as company division, merger, bankruptcy, dissolution, investment and financing, guarantee, lease, property right transfer, bidding, restructuring, reorganization and listing, and handling relevant legal affairs;
(five) to handle business registration, trademarks, patents, trade secrets protection, notarization, certification and other related legal affairs, and do a good job in the protection of intellectual property rights such as trademarks, patents and trade secrets of enterprises;
(six) responsible for or cooperate with the relevant departments of the enterprise to carry out legal publicity and education for employees;
(seven) to provide legal advice related to the production and operation of enterprises;
(eight) entrusted by the legal representative of the enterprise to participate in litigation, arbitration, administrative reconsideration and hearing activities of the enterprise;
(nine) responsible for the selection of lawyers, and supervise and evaluate their work;
(ten) to handle other legal affairs assigned by the person in charge of the enterprise.
Fourth, supervision and inspection.
For major issues such as division, merger, bankruptcy, dissolution, increase or decrease of capital, major investment and financing. If the invested enterprise is reported to the state-owned assets supervision and administration institution for approval in accordance with relevant regulations, the legal adviser of the enterprise shall issue a legal opinion, analyze relevant legal risks and clarify legal responsibilities.
Where a legal dispute involving the major rights and interests of the investor occurs in the invested enterprise, it shall be filed with the state-owned assets supervision and administration institution within one month from the date of the legal dispute, and accept the relevant legal guidance and supervision.
The second lecture on prohibition of business strife and protection of trade secrets
1. Prohibition of commercial competition
[Case] Zhuang and Shang Tong are directors of an electronics company in a city. 19951010.6, Zhuang and Shang set up a wireless power plant in partnership with Chen Mou, an employee outside the company, engaged in the production of miniature tape recorders, and the products were the same as those of an electronic company in a city. 1February 7, 996, an electronic company in a city discovered this behavior of directors Zhuang and Shang. After voting at the shareholders' meeting, the company decided to remove Zhuang and Shang from their positions as directors, and asked Zhuang and Shang to hand over the 320,000 yuan they earned during their partnership with others in operating the wireless power plant, but they refused on the spot. An electronics company in a city sued the court in the name of the company, demanding that two directors hand over the proceeds of 320,000 yuan to the company.
[Question] Is the company's requirement correct? Why?
[Legal Link]
(a) the classification and scope of application of non-competition
That is, they are not allowed to engage in the same occupation. According to time, they are divided into:
1. Prohibition of non-competition during employees' tenure:
(1) statutory prohibition: Article 6 1 of the Company Law? Directors and managers shall not engage in the same business as the company in which they work or engage in activities that harm the interests of the company? There are also provisions in the Partnership Enterprise Law, and this is the case in the previous example.
(2) Contracted non-competition restrictions: applicable to employees other than senior management and partners.
2. Non-competition restrictions after employees leave their jobs: they can only be stipulated in the contract and apply to all employees.
(2) Handling of violation of non-competition.
1. the provisions of the company law and the partnership enterprise law: ① confiscation of illegal income; (2) Compensation for losses; 3 disciplinary action.
2. Deal with it according to the contract.
Second, the protection of trade secrets.
(A) the definition and value of trade secrets
Refers to the technical information and commercial information that have commercial value and are kept confidential by the obligee. Technical information includes proprietary technology, formula, etc. Business information includes business strategy, sales channels, customer list information, price strategy, etc.
Trade secrets were first put forward by the Civil Procedure Law in 199 1, and later by 1993? Anti-unfair competition law? Specific definition. Trade secrets belong to the scope of intellectual property protection and have intellectual value.
(2) Infringement of trade secrets and its handling
1. Infringement methods include: (1) unauthorized use and disclosure; (2) unauthorized use to others; (3) theft.
2. Disposal: (1) Civil liability: stop the infringement, apologize and compensate for the losses.
(2) Administrative responsibility: fine1-200,000 yuan.
[Projection] East China Shipyard v. Cheng, Chang Tong Internal Combustion Engine Co., Ltd. for infringement of trade secrets.
The third lecture on the practical operation of contract law
I conclusion of the contract
(1) Main clauses: (Article 12 of the Contract Law)
(1) Name or domicile of the party concerned; (2) Subject matter; (3) quantity; (4) quality; (5) Price or remuneration; (6) Time and place of performance; (7) Liability for breach of contract; (8) Measures to settle disputes
(2) enterprise credit (contract) management system
Become? Valuing contracts and keeping promises? Enterprises that bring economic benefits to enterprises and occupy a place in economic activities have become the knowledge of more and more enterprises. But this year, our province has adopted a new evaluation system (this newspaper has done a series of reports), and many enterprises do not know how to formulate and implement the enterprise credit (contract) management system, which has become an important condition for evaluation. To this end, this edition will introduce the key contents of the reference sample of the system.
1.？ Power of attorney of legal person? Management system.
(1) Is the credit (contract) management institution responsible? Power of attorney of legal person? Apply for audit, certificate handling, change, cancellation of registration, loss reporting, supervision and inspection, and be the centralized management department of the company.
(2) Where is it not held? Power of attorney of legal person? If it is necessary to sign a contract with foreign countries due to special circumstances, the department to which it belongs shall apply to the credit (contract) management institution, and with the approval of the legal representative, the credit (contract) management institution shall specifically handle a temporary entrustment? Certificate of legal person entrustment? Matters; Did not get it? Power of attorney of legal person? And then what? Certificate of legal person entrustment? Other personnel may not sign contracts with foreign countries.
2. Functions of credit (contract) management institutions
(1) Organize the publicity and implementation of contract laws and regulations, train credit (contract) managers and business personnel, and protect the legitimate rights and interests of this enterprise according to law.
(2) Formulate and revise the company's credit policies, credit management systems and methods, and organize the implementation of credit management assessment.
(3) Conduct credit investigation on customers, establish customer credit files and conduct dynamic management.
(4) Customer credit management: conduct customer credit examination and approval, track customers, and make regular statistical analysis of customer credit status.
(5) Accounts receivable management: control the average holding level of accounts receivable, monitor the aging of accounts receivable daily, and handle potential bad accounts at any time to prevent accounts receivable from being overdue.
(6) Commercial accounts processing: Establish standardized accounts collection procedures and efficient accounts collection teams, make overdue accounts receivable plans in time, and organize effective accounts collection.
(3) Precautions
1. Before signing the contract, the subject qualification of the other party must be strictly examined.
For an unincorporated economic organization, it shall be examined whether it is registered according to law and obtains a business license. For business units established by branches, institutions and social organizations, in addition to reviewing their business scope, they should also review their qualifications as legal persons.
When examining the qualifications of a foreign party, it is necessary to find out its status and nature, whether the company or organization exists legally, its legal name, address, name and nationality of its legal representative, and its place of registration.
2. Before signing the contract, it is necessary to review the agent's identity and qualification.
Before signing the contract, the performance ability of the other party must be carefully examined. When the other party is obliged to provide professional services, engineering projects or restricted business projects in the contract, it shall require the other party to provide business licenses or certificates of qualification grades issued by government statutory agencies.
4. The following materials cannot be used as proof of the subject qualification and performance ability, but can be kept in the contract file for future reference: business card; Various advertisements and promotional materials; Manufacturer introduction, product introduction and other information; The number of communication tools such as telephones and pagers; Copy materials provided by the other party that have not been witnessed by our contract contractor or checked by the original.
5. Time and place: working days, offices and other formal occasions; Prohibition: rest days, nights and rest places.
6. Pen and ink: sign with your own pen. It is forbidden to carve seals privately. Ballpoint pens, pencils and pure blue ink are prohibited.
7. Drafting: Start drafting in person. If someone else wrote it, you must write it down? Is the situation true? Sign it again.
8. Form: There should be no space between the signature and the text to prevent the new creditor's rights document from being altered.
9. Text: typos, variant characters and polyphonic characters are prohibited.
[Case 1] (typo, quite different) A building materials sales company signed a sales contract with a steel production enterprise, which was originally ordered? Cash on delivery? . The steel plant delivered the goods of 3.2 million yuan to the building materials sales company on time, and immediately asked the sales company to pay in time. Who knows that the sales company not only does not pay, but instead takes out the contract and accuses the steel production enterprises of not keeping promises. It turns out that the contract actually says? Loan to payment? The sales company said that as long as the loan is in place, it will ensure timely payment. Steel manufacturers only know that they have been fooled, so they will? A loan? Is it a typo? Commodities? Words. Later, the court appealed to the court, and the court found that the contract was valid, so the steel mill had to eat Huanglian Yabakui, and he couldn't tell the pain.
[Case 2] (polysyllabic, it is difficult to tell right from wrong) An agent sells beer for a beer manufacturer, and owes the manufacturer 6,543.8+0.2 million yuan for the goods, and makes an iou, indicating the amount and date of the arrears. At the appointed time, the factory came to collect the money, and after the agent paid back part of the money, he wrote on the loan note? Pay off 80 thousand yuan in two months? . After two months, the factory came to urge money again. The agent gave 40,000 yuan, but the factory begged 80,000 yuan. There was a dispute between the two parties, so they appealed to the court, and the manufacturer showed the IOU. Yes, what's written on the iou? Still owe 80 thousand? Both sides have their own explanations: the intermediary said it had been returned? Huan? 80,000 yuan; The manufacturer said that the sea owed 80 thousand. What is this? Sea? Or? Huan? Both parties failed to provide sufficient evidence, so the court had to mediate, and both parties agreed that the agent would return 60,000 yuan to the manufacturer. Although the lawsuit was settled, both sides felt that they had paid a sum of money.
10. Punctuation
[Case] (Punctuation, as heavy as a thousand strokes) There was a bumper harvest of apples in a county, and there was a mountain of hoarding for a while, looking for a buyer urgently. In a few days, the best apples have a market, and only ordinary apples are left unattended. One day, a customer came to order food, finished eating and drank, and signed a contract. The contract says that there are about 3 apples per catty, not insects. But the author wrote it? Apple supply requirements: about 3 apples per catty, no insects. ? In a few days, the county sent the apples to the sales place, but at this time, the apple market in some places was saturated, not to mention such a small apple, and even the big apple had no market. The customer immediately played a word game, not only rejecting Apple, but also demanding compensation. He took out the contract, pointed to the pause and reinterpreted the meaning? About 3 per catty. Do you want anything with insect spots? . A county has no choice but to turn to the law. Faced with this paper contract, the court had no choice. A county can only admit that it is unlucky, and a car full of apples is given to this customer as compensation.
Second, the performance of the contract
[Case] In the spring of 2001year, the timber factory signed a purchase and sale contract with the distribution department, stipulating that the distribution department would supply a crown block to the timber factory, and the delivery period was June 5, 2006 54 38+0. The two sides also signed a contract for the installation and commissioning of the crown block, stipulating that the distribution department will be responsible for the installation and commissioning. In the same year1October 22nd 10, the distribution department completed the installation and commissioning of the crown block, and the timber factory was put into use. Within the stipulated quality objection period, the timber factory raised the quality problem of the crown block by telephone, but did not raise a written objection to the distribution department, and paid the payment of 654.38 million yuan and the installation fee of 30,000 yuan. Later, the timber factory brought a lawsuit to the court on the grounds that the quality of the crown block was unqualified, demanding the return of the crown block and demanding the distribution department to compensate for the economic losses.
[Question] Can the request of the timber factory be supported by the court? Why?
【 Legal Link 】 Quality Objection Operation:
1. Objection time: According to Article 14 of the Regulations on Contracts for the Purchase and Sale of Industrial and Mining Products: 1. If the appearance, variety, model, specification and color of the product are inconsistent with the contract and belong to the supplier's delivery or consignment, the buyer shall raise a written objection (unless otherwise agreed) within 10 days after the arrival of the goods. If the internal quality of the product does not meet the requirements of the contract, the buyer shall raise a written objection within the quality objection period stipulated in the contract or the inspection and test period stipulated by the state, regardless of the supplier's delivery or shipment or the buyer's own requirements. For some products, the inherent quality defects can only be found after installation and operation. Unless otherwise stipulated or the parties have agreed on the time limit for raising objections, they should generally raise written objections within 6 months from the date of operation.
2. Objection: According to Article 15 of the Regulations on the Purchase and Sale of Industrial and Mining Products, the supplier of the purchase and sale contract of industrial and mining products shall be responsible for the quality of the products it provides. If the buyer finds that the variety, model, specification, design and quality of the products are not in conformity with the contract during the acceptance, it shall keep them properly and raise a written objection to the supplier.
Consequences of overdue: If the buyer fails to raise written objections within the specified time limit, the delivered products shall be deemed as conforming to the contract.
[Trial Result] The court held through trial that the timber factory did not raise any written objection to the internal quality of the crown block within the statutory time limit, and should consider that the delivered products were in conformity with the contract, so it rejected the timber factory's claim.
The fourth lecture on the legal practice of guarantee
I. Guarantee
Guarantee is the employer's credit guarantee debt. [projection]
(a) The prohibited scope of the guarantor:
1. School and its functional departments; 2. Branches and functional departments of enterprises as legal persons.
Consequences of violation: the guarantee is invalid and the responsibility is assumed.
[Note] (1) Without the consent of the enterprise as a legal person, individuals and functional departments of subordinate units may not act as guarantors;
(2) The school or enterprise as a legal person shall not ratify the invalid guarantee orally or in writing.
[Projection] East China Shipyard v. Jiang Run Branch of Zhenjiang Construction Bank and Runzhou Dairy Factory.
(2) Guarantee time:
1. Contract:
2. The law stipulates that within six months after the principal debt expires.
Consequence of overdue: the guarantor is exempted from the guarantee responsibility.
[Note] (1) The guarantor shall not perform the guarantee beyond the guarantee period.
(2) After the expiration of the time limit, the creditor cannot claim the liability of guarantee.
[Case] 1 On September 6, 1998, Southern Supply and Marketing Cooperative signed a loan contract with Chengxin Credit Cooperative, stipulating that the supply and marketing cooperative would lend110,000 yuan to the credit cooperative for a period of six months, and Baiyun Garment Factory provided joint liability guarantee, but the guarantee period was not agreed. Due to the poor management of Southern Supply and Marketing Cooperative, it failed to repay the due loan, but the dunning notice issued by Tianxin Credit Cooperative was stamped with the official seal of the unit on March 8, 20001year. At the same time, the credit union also sent people to Baiyun Garment Factory to ask them to fulfill their guarantee obligations. On March 28th, 20001year, Baiyun Garment Factory stamped the special seal for corporate finance in the column of the loan collection notice from the credit union. On September 8, 20001year, Chengxin Credit Cooperative appealed to the court, demanding that Southern Supply and Marketing Cooperative repay the loan, and Baiyun Garment Factory fulfilled its guarantee obligation.
[Question] Is the plaintiff's request correct? Why?
[Trial result] The Southern Supply and Marketing Cooperative was judged to repay the loan principal and interest of Chengxin Credit Cooperative; Reject the plaintiff's claim for Baiyun Garment Factory to fulfill its guarantee obligation.
[Legal Analysis] In this case, Chengxin Credit Cooperative borrowed from Southern Supply and Marketing Cooperative on September 6th 1998, with a term of six months, that is, on March 7th 1999, and the statute of limitations began to calculate for two years. After March 7, 200 1 year, the limitation of action was exceeded, and the obligee had lost the right to win the case, but the substantive right of the obligee itself had not been eliminated. According to the Supreme People's Court's "Reply on the Legal Effect of Borrower's Signature or Seal on Dunning Notice during the Limitation of Action", during the limitation of action, if the credit union issues a notice to the borrower and the debtor's Southern Supply and Marketing Cooperative signs or seals the notice, it will be regarded as a reaffirmation of the original debt, and the creditor-debtor relationship will be protected by law. Therefore, the court ruled that the Southern Supply and Marketing Cooperative returned the loan principal and interest of Chengxin Credit Cooperative. Because the reply is aimed at the specific situation that the credit union sends the loan notice to the borrower, it only involves the loan and nothing else, so the legal effect of the reply is not applicable to the guarantor.
Second, deposits.
It refers to paying a certain amount of money to the other party in advance in order to ensure the conclusion and performance of the contract when concluding the contract.
Its composition condition is: 1. Must actually pay; 2. The amount shall not exceed 20% of the subject matter of the main contract.
Case: Company A and Company B signed a steel sales contract. According to the contract, Party B shall provide Party A with 1 000 tons of rebar within 1 month at a price of * * * 6 million yuan, and Party A shall pay a deposit of 2 million yuan. After that, Party A paid a deposit of 2 million yuan according to the contract, and Party B failed to supply the goods to Party A within 1 month due to the unreasonable supply price, and Party A asked Party B to double the deposit. In case of any dispute between the two parties, Party A will bring a lawsuit to the court.