"Tailor-made" judicial service solutions for various types of small and medium-sized enterprises

General Secretary Xi Jinping stressed that it is necessary to strengthen support for small and medium-sized enterprises, individual industrial and commercial households, manufacturing, risk mitigation, etc. Since the Eighteenth National Congress of the Communist Party of China, the Party Central Committee with Comrade Xi Jinping as the core has attached great importance to the development of small and medium-sized enterprises, introduced a series of policies and measures in terms of finance, taxation, business environment, public services, etc., played a "combination fist" to support the development of small and medium-sized enterprises, and forcefully alleviated the worries and relief for the development of small and medium-sized enterprises.

On January 14, the Supreme People's Court issued the Guiding Opinions on Giving Full Play to the Role of Judicial Functions and Helping the Development of Small and Medium-sized Enterprises (hereinafter referred to as the Opinions), which is a powerful measure to completely, accurately and comprehensively implement the new development concept, effectively implement the spirit of the Central Economic Work Conference, further give play to the judicial function of the people's courts, and help the development of small and medium-sized enterprises. The "Opinions" adhere to the party's leadership, adhere to serving the overall situation, adhere to the people-centered, in-depth implementation of Xi Jinping rule of law thinking, adhere to the rule of law thinking, benchmark the party and the state to promote the development of small and medium-sized enterprises and policies, around the prominent problems of small and medium-sized enterprises "urgent difficulties and expectations", put forward corresponding judicial service safeguard measures and targeted judicial measures, easy to practice and application.

For developing small and medium-sized enterprises, in order to create a market environment of fair competition and honest operation, and protect the living and development space of small and medium-sized enterprises. "The socialist market economy is essentially an economy based on the rule of law. To create a market environment of fair competition and honest operation, the people's courts must do a great deal. Liu Guixiang, a full-time member of the Adjudication Committee of the Supreme People's Court, said that the people's courts will strengthen the trial of anti-monopoly and anti-unfair competition cases, and severely punish monopoly and unfair competition behaviors such as forced "two choices one", low-price dumping, forced tying, blocking and blocking, and single speculation in accordance with the law; Lawfully determine that business operators abuse data, algorithms, technology, capital advantages, and platform rules to eliminate or restrict competitive behavior, prevent disorderly expansion of capital, and protect the living and development space of small and medium-sized enterprises. Improve the linkage mechanism between judicial and law enforcement, support anti-monopoly administrative law enforcement organs in performing their duties in accordance with law, strengthen communication and coordination, and promote the formation of work synergy.

The "Opinions" support the protection of market entities' independent transactions and effectively carry forward the spirit of the contract; Strengthen the use of systems such as liability for breach of contract and liability for contractual negligence, raise market entities' awareness of rules and responsibilities, and support and guide market entities to operate in good faith in accordance with law; Severely crack down on untrustworthy enterprises' evasion of debts through methods such as multi-head account opening, related party transactions, and changes in legal representatives, prompting market entities to operate in good faith.

For small and medium-sized micro and small enterprises with property rights assets, we should protect intellectual property rights and legitimate rights and interests, prevent criminal intervention, and strengthen the protection of property rights of small and medium-sized enterprises. In view of the characteristics of small and medium-sized enterprises and the key issues in property rights protection, the "Opinions" make special provisions on the property rights protection of small and medium-sized enterprises. Guo Feng, deputy director of the Research Office of the Supreme People's Court, introduced that in view of the problems of insufficient internal governance mechanisms and insufficient standardization of business behavior of small and medium-sized enterprises, article 7 of the Opinions strictly implements the opinions on the protection of property rights, clearly requires judicial organs to strictly follow the legal principles of criminalization of crimes and suspicion of guilt, strictly distinguish between legitimate financing of small and medium-sized enterprises and illegal fund-raising, contract disputes and contract fraud, participation in mergers and acquisitions and malicious misappropriation of state-owned assets, etc., and resolutely prevent the use of criminal means to intervene in civil disputes. Resolutely prevent economic disputes from being treated as crimes, and resolutely prevent civil liability from becoming criminal liability.

The "Opinions" also pointed out that it is necessary to adhere to the unity of substantive justice and procedural justice, strengthen the procedural guarantee for small and medium-sized enterprises, emphasize the need to fully consider the actual situation of small and medium-sized enterprises, conduct litigation guidance and interpretation in accordance with the law, improve and promote one-stop diversified dispute resolution, online litigation and other mechanisms, make good use of judicial assistance and other measures, reduce the litigation costs of small and medium-sized enterprises, and prevent their weak position in market transactions from being transformed into an unfavorable position in litigation. In cases where civil, administrative and criminal overlap, the principle of giving priority to civil liability as provided for in Article 187 of the Civil Code should be truly implemented. It is required to implement the principle of comprehensive protection and highlight the protection of intellectual property rights for small and medium-sized enterprises.

For small and medium-sized enterprises with financing needs, in order to broaden financing channels, regulate the lending market, properly review financial loans, and help alleviate the financing difficulties and financing costs of small and medium-sized enterprises. The Central Economic Work Conference held on December 8, 2021, proposed to "increase financing support for the real economy and promote the increase, expansion and price reduction of financing for small and medium-sized enterprises". The people's courts should actively give play to the function of judicial services in ensuring economic and social development, and help alleviate the problem of difficult and expensive financing for small and medium-sized enterprises.

The "Opinions" require that financial loan dispute cases be properly tried in accordance with the law. Will not support litigation claims such as early maturity of loans and unilateral termination of contracts submitted by financial institutions in violation of the policy of inclusive small and micro loan support tools; The interest charged by financial institutions and the disguised interest collected in the name of consulting fees, guarantee fees and other fees shall be strictly in accordance with the provisions of the preferential interest rate policy for the refinancing of small loans to support agriculture and support, and the excess part will not be supported. Confirm the legal effect of atypical guarantees such as retention of title, financial leasing, and factoring in accordance with the law, support enterprises to broaden financing channels according to their actual conditions, support enterprises to pledge financing with rights such as warehouse receipts, bills of lading, bills of exchange, accounts receivable, intellectual property rights, etc., support financial institutions in innovating credit products to serve small and medium-sized and micro enterprises, share information on enterprise litigation with the national comprehensive credit service platform for financing of small and medium-sized enterprises, help financial institutions to more accurately "profile" enterprises, and make it easier for small and medium-sized enterprises with good credit to obtain loans. Lawfully negate the validity of contract clauses that circumvent the upper limit of judicial protection of private lending interest rates, such as withholding principal or interest or disguised high interest rates in private lending dispute cases, and deny the effectiveness of illegal lending behaviors such as "usurious re-lending" and "professional lending" in accordance with law. Promote the establishment of a "professional moneylender" directory system in the people's courts in all localities on the basis of the actual conditions in their respective regions, and increase the prevention and sanctions of false lawsuits such as "routine loans".

For small and medium-sized micro and small enterprises that have creditor's rights that cannot be repaid in a timely manner, in order to establish and improve a long-term mechanism, ensure the field of construction projects, and efficiently handle cases of arrears of accounts owed to small and medium-sized enterprises. The Supreme People's Court has always attached great importance to resolving the problem of arrears of accounts owed to small and medium-sized enterprises. In 2019, the special implementation action of "consolidating the results of the work of basically solving the difficulty of implementation" was carried out, and in 2020, the special implementation action of "giving play to the implementation function to do a good job in the 'six stability' work and implementing the 'six guarantees' task" was carried out, and the cases of arrears to small and medium-sized and micro enterprises were regarded as a key case, and the implementation efforts were continuously increased, and certain work results were achieved.

The "Opinions" institutionalized and condensed some previous work experience and put forward new and effective measures. Incorporate cases of arrears of accounts owed to small and medium-sized enterprises into the green channel, and strengthen equal protection for small and medium-sized enterprises in litigation. Fully consider the actual situation of small and medium-sized enterprises, guide and explain their litigation in accordance with the law, increase the intensity of obtaining evidence ex officio, effectively clarify the facts of the case, prevent the weak position of some small and medium-sized enterprises in market transactions from being transformed into an unfavorable position in litigation, and strive to achieve the unity of procedural justice and substantive justice. Where the impact of the epidemic and other factors directly leads to the inability of small and medium-sized enterprises to perform their contracts or the continued performance of contracts is obviously unfair to them, the rules of force majeure or change of circumstances shall be applied in accordance with law, responsibilities shall be reasonably divided, and the contract shall be changed or terminated. Where some units and large enterprises force small and medium-sized enterprises to accept unequal conditions on the issue of arrears of accounts, reach an agreement in kind that is clearly deviated from the market price, or agree on a payment period or term or condition that is obviously unreasonable, and the small and medium-sized enterprise requests to revoke the agreement or agreement on the grounds of obvious unfairness, the people's court shall support it. The "Opinions" also clearly prohibit the seizure of special accounts for migrant workers' wages and wage deposit accounts. Where measures are taken to seal the accounts of real estate pre-sale funds, the relevant regulatory departments shall be promptly notified, and the special funds of the account funds shall not be affected. The "Opinions" make it clear that it is necessary to promote close coordination and coordinated governance with regulatory departments, specifically, to sum up practical experience, further strengthen communication and coordination with relevant administrative departments in accordance with the "Regulations on Guaranteeing the Payment of Funds for Small and Medium-sized Enterprises" and other laws and regulations, take the initiative to strive to incorporate case enforcement into the overall work deployment of arrears, and work with relevant departments to study and refine work measures to form a strong synergy.

For small and medium-sized micro and medium-sized enterprises that cannot pay off their debts, we should actively promote the implementation of reconciliation, scientifically identify and protect small and medium-sized and micro enterprises with rescue value in accordance with the law, and effectively play the function of judicial rescue. Enforcement measures are directly related to the vital interests of the person subject to enforcement, directly affect the production and life of the person subject to enforcement, and some even have a bearing on the life and death of the enterprise. In order to implement the decision-making and deployment of the main body of the market to ensure employment and people's livelihood put forward by the Party Central Committee, the "Opinions" require courts at all levels to actively guide the parties to reach an enforcement settlement agreement on debt relief and deferral of payment for small and medium-sized and micro enterprises that cannot pay off their debts due to difficulties in capital liquidity in the process of enforcement, so as to create conditions for enterprises to alleviate debt pressure and resume production and operation in accordance with the law. Second, for small and medium-sized micro and medium-sized enterprises that have entered bankruptcy procedures but have rescue value, it is necessary to actively guide the comprehensive settlement of the enterprise debt crisis through bankruptcy reorganization, reconciliation and other procedures, and fairly and orderly repay the corresponding creditor's rights, so that the enterprise can be reborn.

The "Opinions" put forward that special investigation actions should be carried out, relying on the 12368 judicial service hotline, the implementation of letters and petitions and other issues of reflection channels, the establishment of a rapid response mechanism to solve the problem of excessive sealing and random seizure, and timely acceptance and rapid handling of the problems reflected by the parties; If enforcement personnel are at fault for the problem of seizure or arbitrary seizure that exceeds the standard, they shall be seriously investigated for responsibility in accordance with law and will never be tolerated.

For small and medium-sized micro and medium-sized enterprises that have become judgment debtors, measures to punish and restrict consumption are to be flexibly and accurately adopted to seal, change prices, punish untrustworthiness, and restrict consumption, so as to minimize the adverse impact of enforcement on small and medium-sized enterprises. In cases where market entities such as small and medium-sized micro and medium-sized enterprises are the person subject to enforcement, the people's court shall employ enforcement measures in accordance with law in order to protect the claims of the person applying for enforcement. However, at the same time, it is also necessary to consider the actual situation of small and medium-sized enterprises, especially small and micro enterprises, such as poor anti-risk ability and high pressure on liquidity funds, and minimize the adverse impact of implementation measures on it in the process of implementation. In this regard, the "Opinions" require that when the seizure measures are taken for the factories, machinery and equipment and other productive materials of market entities such as small and medium-sized enterprises, under the condition that the interests of creditors can be protected, the normal use of the seized property and production and operation will not be affected as much as possible. The seized property shall be allowed to repay the debt by means of the property's self-financing. In addition, if the overall value of the real estate of the seized market entities such as small and medium-sized enterprises clearly exceeds the amount of the creditor's rights, measures shall be taken to seize the corresponding value of the real estate; After the immovable property is sealed as a whole because it has not been registered for division, it shall promptly coordinate with the relevant departments to handle the registration of the division and lift the seizure of the part exceeding the standard.