Corporate legal advisors, also known as corporate lawyers, are professional corporate legal managers hired by companies. They are mainly engaged in corporate legal consultation, legal counsel, contract review and signing, corporate litigation and non-litigation and other legal affairs. Corporate legal counsel originally refers to professionals who have passed the unified examination, obtained the "Corporate Legal Counsel Qualification Certificate" and been registered, employed by the company, and engaged in corporate legal affairs full-time.
The "Measures for the Management of Legal Advisors of State-owned Enterprises" were reviewed and approved by the 18th Director's Office Meeting of the State-owned Assets Supervision and Administration Commission of the State Council on May 11, 2004, and will come into effect on June 1, 2004.
1. Corporate legal advisor
Corporate legal advisor refers to an in-house professional who has obtained the qualification of corporate legal advisor and is hired by the enterprise to specialize in corporate legal affairs. The Corporate Legal Counsel Qualification Certificate must pass the National Corporate Legal Counsel Qualification Unified Examination and be obtained after passing the examination.
Corporate legal advisors should abide by the following working principles:
(1) Practice in accordance with national laws, regulations and relevant regulations;
(2) Maintain the legality of the enterprise in accordance with the law Rights and interests;
(3) Protect the legitimate rights and interests of owners of state-owned assets and other investors in accordance with the law;
(4) Focus on preventing legal risks beforehand and legal control during the matter, Subsequent legal remedies will be supplemented.
Enterprise legal advisors enjoy the following rights:
(1) Responsible for handling legal affairs in enterprise operation, management and decision-making;
(2) Responsible for any damage to the enterprise Legal rights and interests, damages to the legitimate rights and interests of investors and violations of laws and regulations, and provide opinions and suggestions;
(3) Check relevant documents and information of the enterprise according to work needs, and inquire relevant personnel of the enterprise;
< p> If an enterprise fails to adopt the opinions and suggestions put forward by the enterprise's legal adviser on item (2) of the preceding paragraph, causing significant 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 If an enterprise reports, the legal counsel of the invested enterprise can report it to the state-owned assets supervision and administration agency.Corporate legal advisors shall perform the following obligations:
(1) Comply with national laws, regulations and relevant provisions as well as corporate rules and regulations, and abide by professional ethics and professional disciplines;
(2) Perform the duties of corporate legal advisor in accordance with the law;
(3) Be responsible for the legality of the legal opinions proposed, legal documents drafted and other legal matters handled;
(4) Keeping state secrets and corporate business secrets;
(5) Other obligations that must be fulfilled by laws, regulations, rules and the enterprise.
2. General legal counsel of the enterprise
The general legal counsel of the enterprise refers to a senior manager who has the qualification of corporate legal counsel and is appointed by the enterprise to be fully responsible for the legal affairs of the enterprise. The general legal counsel of an enterprise is responsible to the legal representative or general manager of the enterprise. Large enterprises set up corporate general counsel.
The general legal counsel of an enterprise shall simultaneously meet the following conditions:
(1) Support and implement the basic line, principles and policies of the party and the country, be impartial and responsible, and strictly abide by the law;
(2) Familiar with business management, with a high policy level and strong organizational and coordination capabilities;
(3) Proficient in legal business, with experience in handling complex or difficult legal affairs and ability;
(4) Having the qualification to practice as a corporate legal advisor and serving as the main person in charge of the enterprise’s middle-level or above management departments for three years or more; or being appointed as a first-level legal advisor to the enterprise and having served as a corporate legal advisor The person in charge of the affairs agency.
The general legal counsel of the enterprise performs the following duties:
(1) Be fully responsible for the legal affairs of the enterprise, and coordinate and handle legal affairs in the decision-making, operation and management of the enterprise;
(2) Participate in the company’s major business decisions, ensure the legitimacy of the decisions, and provide preventive opinions on relevant legal risks;
(3) Participate in the formulation and implementation of the company’s important rules and regulations, and establish and improve the company Legal affairs agency;
(4) Responsible for the legal publicity, education and training of enterprises, and organize the establishment of a corporate legal advisor business training system;
(5) Responsible for violations of laws by enterprises and subordinate units
(6) Guide the legal affairs work of subordinate units and make suggestions on the appointment and removal of the persons in charge of legal affairs of subordinate units;
< p> 3. Corporate legal affairs agencyCorporate legal affairs agency refers to the functional department set up by the enterprise to specifically undertake corporate legal affairs work. It is the practice agency of corporate legal advisors. Large enterprises set up specialized legal affairs agencies, and other enterprises can set up legal affairs agencies as needed. Enterprises should assign corporate legal advisors to legal affairs agencies based on work needs.
Corporate legal affairs agencies perform the following responsibilities:
(1) Correctly implement national laws and regulations, and provide legal opinions on major corporate business decisions;
(2) ) Draft or participate in the drafting and review of important enterprise rules and regulations;
(3) Manage and review enterprise contracts, and participate in the negotiation and drafting of major contracts;
(4) Participate in the enterprise’s Handle relevant legal affairs such as division, merger, bankruptcy, dissolution, investment and financing, guarantee, leasing, property rights transfer, bidding and restructuring, reorganization, company listing and other major economic activities;
(5) Handling corporate industrial and commercial affairs Registration, trademark, patent, trade secret protection, notarization, authentication and other related legal affairs, and do a good job in protecting corporate trademarks, patents, trade secrets and other intellectual property rights;
(6) Responsible for or cooperating with relevant departments of the company to Conduct legal publicity and education for employees;
(7) Provide legal consultation related to the enterprise’s production and operation;
(8) Participate in the enterprise’s litigation and arbitration as entrusted by the enterprise’s legal representative , administrative reconsideration and hearings and other activities;
(9) Responsible for selecting and hiring lawyers, and supervising and evaluating their work;
(10) Handling other legal matters assigned by the person in charge of the enterprise affairs.
IV. Supervision and Inspection
The invested enterprises shall submit to the state-owned assets supervision and administration agency for approval in accordance with relevant regulations regarding major matters such as division, merger, bankruptcy, dissolution, capital increase or decrease, major investment and financing, etc. For any matter, the enterprise's legal advisor should issue a legal opinion to analyze the relevant legal risks and clarify legal responsibilities.
If a legal dispute involving the investor’s major rights and interests occurs in the invested enterprise, it shall file a record with the state-owned assets supervision and administration agency within one month from the date of the legal dispute, and accept relevant legal guidance and supervision.
Lecture 2: Non-competition and trade secret protection
1. Non-competition
[Case] ??Zhuang and Shang are both shareholders of an electronics company in City A Directors of Ltd. On October 6, 1995, Zhuang and Shang jointly opened a radio factory with Chen, a person outside the company, to engage in the production of micro radio recorders. Their products were the same as those of an electronics company in City A. On February 7, 1996, an electronics company in City A discovered this behavior of director Zhuang and Shang. After voting at the shareholders' meeting, the company decided to remove Zhuang and Shang from his position as director and required Zhuang and Shang to remove him from the post. A total of 320,000 yuan of income earned from operating a radio factory in partnership with others was handed over to the company, but the two refused on the spot. An electronics company in City A sued the court in the name of the company, requiring two directors to hand over their income of 320,000 yuan to the company.
[Question] Are the company’s requirements correct? Why?
[Legal Link]
(1) Classification and scope of application of non-competition
That is, they are not allowed to engage in the same occupation. Based on time, they are divided into:
1. Non-compete during the employee’s employment:
(1) Statutory prohibition: " Article 61 of the Company Law stipulates that directors and managers shall not operate their own business or for others to operate similar businesses to the company they work for, or engage in activities that harm the interests of the company. The Partnership Enterprise Law also stipulates that this is the case in the above example. .
(2) Non-competition stipulated in the contract: applies to employees other than senior managers and partners.
2. Non-competition after employees leave the company: it can only be stipulated in the contract and applies to all employees.
(2) Treatment of violations of non-competition
1. The provisions of the "Company Law" and "Partnership Law": ① Confiscation of illegal gains; ② Compensation for losses; ③ Disciplinary sanctions.
2. Handle according to the contract.
2. Protection of trade secrets
(1) Definition and value of trade secrets
Refers to technical information and information that have commercial value and for which the right holder has taken confidentiality measures Business information. Technical information includes proprietary technology, formulas, etc., and operating information includes business strategies, sales channels, customer list information, price strategies, etc.
Trade secrets were first proposed by the Civil Procedure Law in 1991, and were later specifically defined by the Anti-Unfair Competition Law in 1993. Trade secrets fall within the scope of intellectual property protection and have intellectual value.
(2) Infringement and handling of trade secrets
1. The ways of infringement include: (1) unauthorized use and disclosure; (2) unauthorized use by others; (3) )theft.
2. Treatment: (1) Civil liability: stop the infringement, apologize, and compensate for losses.
(2) Administrative liability: fine of 10,000-200,000 yuan.
[Projection] East China Shipyard Factory v. Cheng Jincai and Changzhou Changtong Internal Combustion Engine Co., Ltd. for infringement of trade secrets.
Lecture 3: Contract Legal Practice
1. Formation of Contract
(1) Main Terms: (Article 12 of the Contract Law)
(1) Name or address of the party; (2) Subject matter; (3) Quantity; (4) Quality; (5) Price or remuneration; (6) Time, place and manner of performance; (7) Liability for breach of contract; ( 8) Methods to resolve disputes
(2) Enterprise credit (contract) management system
Become a contract-honoring and trustworthy enterprise, bring economic benefits to the enterprise, and promote economic activities Occupying a place in the industry has become the common sense of more and more enterprises. However, this year our province has adopted a new evaluation system (this newspaper has done a series of reports), and many companies do not know how to start with the formulation and implementation of 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 this system.
1. Legal person’s power of attorney and management system.
(1) The credit (contract) management agency is responsible for the application review, certificate processing, change, deregistration, loss statement, supervision and inspection of the "legal person power of attorney", and is the centralized management department of the company.
(2) Anyone who does not hold a legal person power of attorney and needs to sign an external contract due to special circumstances shall submit an application to the credit (contract) management agency. ) The management agency specifically handles the temporary "certificate of legal person entrustment" for one entrustment; other personnel who have not obtained the "letter of legal person entrustment" and "certificate of legal person entrustment" are not allowed to sign contracts with external parties.
2. Functions of the credit (contract) management agency
(1) Organize the publicity and implementation of contract laws and regulations, train credit (contract) managers and business personnel, and protect the enterprise in accordance with the law legitimate rights and interests.
(2) Formulate and revise the company’s credit policies, credit management systems and methods, and organize and implement the assessment of credit management work.
(3) Conduct credit investigation on customers, establish customer credit files, and conduct dynamic management.
(4) Customer credit management: Carry out customer credit approval, track customers, and conduct statistical analysis of customer credit status on a regular basis.
(5) Accounts receivable management: Control the average holding level of accounts receivable, monitor the aging of accounts receivable on a daily basis, and conduct technical processing of potential bad accounts at any time to prevent receivables. The occurrence of overdue accounts.
(6) Business account processing: Establish standard debt collection procedures and an efficient debt collection team, formulate timely plans for handling overdue accounts receivable, and organize effective debt collection.
(3) Notes
1. Before signing a contract, the qualifications of the other party must be strictly examined.
For unincorporated economic organizations, it should be examined whether they are registered in accordance with legal provisions and obtain a business license. For business units established by branches or public institutions and social groups, in addition to reviewing their business scope, the qualifications of the legal entities to which they are affiliated should also be reviewed at the same time.
For the qualification review of foreign parties, the status and nature of the foreign party, the legal existence of the company or organization, the legal name, address, name of the legal representative, nationality and the place of registration of the company or organization should be investigated clearly.
2. Before signing a contract, the agent’s identity and qualifications need to be reviewed.
3. Before signing a contract, the other party’s ability to perform must be carefully examined. When the other party has the obligation to provide highly professional labor services, engineering projects or restricted business projects in the contract, it shall require the other party to provide proof such as a business license or qualification certificate issued by a government statutory agency.
4. The following materials cannot be used as proof of the subject’s qualifications and ability to perform the contract, but can be included in the contract archives for examination: business cards; various advertising and promotional materials; manufacturer introductions, product introductions and other materials ; Numbers of various telephones, BP machines and other communication tools; Copied materials provided by the other party that have been copied without being witnessed by our contract contractor or that have not been verified to be indistinguishable from the originals.
5. Time and place: working days, offices and other formal occasions; prohibited: rest days, nights, resting places.
6. Pen and ink: Use your own pen to sign. Private seals, ballpoint pens, pencils, and pure blue ink are prohibited.
7. Drafting: Draft it yourself. If someone else writes it for you, be sure to write "The situation is true" before signing.
8. Format: There should be no blank space between the signature and the text to prevent the creation of new debt documents.
9. Words: Wrong words, words with similar shapes, and polyphonic words are prohibited.
[Case 1] (Wrong word, completely different) A building materials sales company signed a sales contract with a steel manufacturer. The original order was "cash on delivery". The steel manufacturer delivered the goods worth 3.2 million yuan to the building materials sales company on time, and then required the sales company to pay in time. Unexpectedly, the sales company not only refused to pay, but instead took out the contract and accused the steel manufacturer of breach of trust. It turned out that what was written in the contract was "payment upon loan". The sales company said: As long as the loan is in place, timely payment is guaranteed. Only then did the steel manufacturer realize that it had been deceived. It turned out that the word "loan" had been mistaken for the word "goods". Later, the lawsuit was brought to the court. The court found that the contract was valid, and the steel manufacturer had no choice but to remain silent and eat Coptis chinensis, unable to express its suffering.
[Case 2] (Polyphonetic words, difficult to tell right from wrong) An agent sells beer on behalf of a beer manufacturer, and owes the manufacturer a beer worth 120,000 yuan on credit, and set up an IOU, which states that he owes payment amount and date. At the agreed time, the factory came to press for payment. After the agent paid off part of the money, he wrote on the IOU: "The amount owed will be 80,000 yuan and it will be returned in two months." Two months later, the manufacturer came to press for payment again. The agent paid 40,000 yuan, but the manufacturer asked for 80,000 yuan.
A dispute arose between the two parties and they went to court, where the manufacturer presented an IOU. Both parties have their own explanations for the statement on the IOU that "80,000 yuan is still owed": the agent said it has repaid "80,000 yuan"; while the manufacturer said it has repaid the arrears of 80,000 yuan. Whether it was "hai" or "huan", neither party could provide sufficient evidence, so the court had no choice but to mediate. Both parties agreed, and the agent returned another 60,000 yuan to the manufacturer. Although the lawsuit was settled, both parties felt that they had paid an unjust amount of money.
10. Punctuation marks
[Case] ??(Small punctuation marks, as heavy as a thousand stones) A ??certain county had a big harvest of apples, and they were hoarding them like mountains for a while, looking for buyers. After a few days, all the best apples were sold, but no one cared about the ordinary apples. One day a customer came to place an order. After having a good meal and a meal, he signed a contract. The contract stated that the price of apples was about 3 per pound, but those with insect spots were not allowed. However, the author wrote: Apple supply requirements: about 3 apples per catty, and those with insect spots are not allowed. ?Not long ago, the county sent apples to sales places, but at this time the markets in these places were saturated with apples. Not to mention such small apples, even big apples had no sales. The customer immediately started playing a word game and not only refused to accept the apples, but also asked for compensation. He took out the contract and pointed at the sign, reinterpreting the meaning as "about 3 per catty and don't want any with insect spots". A certain county had no choice but to ask for legal help. Faced with this paper contract, the court was helpless. A certain county could only admit that it was unlucky and gave a cart of apples to this customer as compensation.
2. Performance of the contract
[Case] ??In the spring of 2001, the lumber factory signed a purchase and sales contract with the distribution department, stipulating that the distribution department would supply the lumber factory with a crane and deliver it to the lumber factory. The delivery deadline is June 5, 2001. The two parties also signed a crane installation and commissioning contract, stipulating that the distribution department would be responsible for the installation and commissioning. On October 22 of the same year, the sales department completed the installation and commissioning of the overhead crane, and the lumber mill was put into use. Within the stipulated quality objection period, the lumber factory raised quality issues with the overhead crane over the phone, but did not submit a written objection to the distribution department, and paid a purchase price of 100,000 yuan and an installation fee of 30,000 yuan. Later, the lumber mill filed a lawsuit with the court on the grounds that the crane was of unqualified quality, requiring the crane to be returned and the distribution department to compensate for economic losses.
[Question] Can the request of the lumber mill be supported by the court? Why?
[Legal link] Quality objection operation:
1. Objection time: According to Article 14 of the "Regulations on Purchase and Sales Contracts of Industrial and Mining Products" stipulates: 1. If the appearance, variety, model, specification, and color of the product do not comply with the contract provisions and the supplier delivers or transports the goods on behalf of the buyer, the demander shall notify the buyer within 10 days after the arrival of the goods. (Except as agreed) If a written objection is raised by the buyer, the objection shall be raised at the time of delivery or within the time limit agreed by both parties after the buyer picks up the goods; 2. If the inherent quality of the product does not comply with the provisions of the contract, regardless of whether the supplier delivers the goods, transports it on behalf of the buyer or the buyer himself If required, the purchaser shall submit written objections within the quality objection period stipulated in the contract or the inspection and testing period stipulated by the state. For certain products whose inherent quality defects can only be discovered after installation and operation, unless otherwise provided or the parties agree otherwise on the time limit for raising objections, written objections should generally be submitted within 6 months from the date of operation.
2. Objection method: According to Article 15 of the "Regulations on Purchase and Sale Contracts for Industrial and Mining Products": The supplier of the purchase and sale contract for industrial and mining products shall be responsible for the quality of the products provided. During the acceptance inspection, if the demander finds that the variety, model, specification, design, color and quality of the product do not comply with the contract provisions, the demander shall keep it in a safe place and submit a written objection to the supplier.
Consequences of overdue: If the buyer fails to submit a written objection within the prescribed time limit, the delivered product will be deemed to be in compliance with the contract.
[Trial Result] After the trial, the court held that the lumber factory had not raised any written objection to the inherent quality issues of the crane within the statutory period, and the products delivered should be deemed to be in compliance with the contract provisions, so it rejected the lumber factory. factory's lawsuit.
Lecture 4: The Legal Practice of Guarantee
1. Guarantee
Guarantee is the employer’s credit guarantee debt. [Projection]
(1) Prohibited scope of the guarantor:
1. Schools and their functional departments; 2. Branches and functional departments of corporate legal persons.
Consequences of violation: the guarantee is invalid and you will be held responsible.
[Note] (1) Individuals and functional departments of subordinate units may not act as guarantors without the consent of the corporate legal person;
(2) The school or corporate legal person shall not ratify the invalid guarantee orally or in writing .
[Projection] Guarantee case of East China Shipyard v. Zhenjiang Construction Bank Runjiang Branch and Runzhou Dairy Factory
(2) Guarantee time:
1. Contract stipulations:
2. Legal provisions: Within six months from the expiration of the main debt performance period.
Consequences of overdue guarantee: the guarantor is exempted from guarantee liability.
[Note] (1) The guarantor shall not perform any performance beyond the guarantee period.
(2) The creditor cannot claim guarantee liability after the due date.
[Case] ??Southern Supply and Marketing Cooperative signed a loan contract with Chengxin Credit Union on September 6, 1998, stipulating that the supply and marketing cooperative would loan 1 million yuan to the credit union for a period of 6 months, from Baiyun Garment The factory provides a joint liability guarantee, but no guarantee period has been agreed upon. Due to poor management of the Southern Supply and Marketing Cooperative, it failed to repay the due loan, but the company's official seal was stamped on the reminder notice sent by Chengxin Credit Cooperative on March 8, 2001. At the same time, the credit union also sent people to Baiyun Garment Factory to ask it to fulfill its guarantee obligations. Baiyun Garment Factory stamped the company's special financial seal on the guarantor column of the loan collection notice sent by the credit union on March 28, 2001. On September 8, 2001, Chengxin Credit Cooperative filed a lawsuit in court, requiring the Southern Supply and Marketing Cooperative to repay the loan and the Baiyun Garment Factory to fulfill its guarantee obligations.
[Question] Is the plaintiff’s request correct? Why?
[Trial Result] The court ruled that the Southern Supply and Marketing Cooperative should return the principal and interest of the Chengxin Credit Cooperative loan; rejected the plaintiff’s request that Baiyun Garment Factory perform its guarantee obligations Litigation claim.
[Legal Analysis] In this case, the loan from Chengxin Credit Cooperative to Southern Supply and Marketing Cooperative was dated September 6, 1998, with a term of 6 months, that is, March 7, 1999, and the loan period starts from 2 years. The statute of limitations has expired after March 7, 2001, and the obligee has lost the right to win the lawsuit, but the substantive rights of the obligee itself have not been extinguished. According to the Supreme People's Court's "Reply on the Legal Effectiveness of the Borrower's Signature or Seal on the Collection Notice During the Period of Exceeding the Limitation of Litigation", if the statute of limitations has expired, the credit union shall issue a notice of due loan to the borrower. If the debtor, Southern Supply and Marketing Cooperative, signs or seals the notice, it shall be regarded as a re-confirmation of the original debt, and the creditor-debtor relationship shall be protected by law. Therefore, the court ruled in accordance with the law that Southern Supply and Marketing Cooperative should return the principal and interest of the loan to Chengxin Credit Cooperative. Since the approval is for the specific situation of the credit union issuing a notice to the borrower to collect the overdue loan, it only involves the loan and not other people. Therefore, the legal effect of the approval does not apply to the guarantor.
2. Deposit
Refers to a certain amount of money paid in advance to the other party when signing a contract in order to ensure the conclusion and performance of the contract.
The conditions for its formation are: 1. It must have actually been paid; 2. The amount shall not exceed 20% of the subject amount of the main contract.
[Case] ??Two companies, A and B, signed a steel sales contract. The contract stipulates that Party B will provide Party A with 1,000 tons of rebar within one month at a price of 6 million yuan, and Party A must pay a deposit of 2 million yuan. Later, Party A paid a deposit of 2 million yuan as agreed. Party B failed to supply Party A with steel within one month due to unreasonable supply prices, so Party A required Party B to return double the deposit. A dispute arose between the two parties, and Party A took it to court.