The Supreme People's Court held a press conference on the Guiding Opinions of the Supreme People's Court on Giving Full Play to the Role of Judicial Functions and Helping the Development of Small and Medium-sized Enterprises. The "Opinions" pointed out: Resolutely prevent the use of criminal means to interfere in the economic disputes of small and medium-sized enterprises. Strictly implement the legal principles of criminalization of crimes and never suspected crimes, strictly distinguish between legitimate financing of small and medium-sized enterprises and illegal fund-raising, contract disputes and contract fraud, participation in mergers and reorganizations and malicious misappropriation of state-owned assets, and resolutely prevent economic disputes from being identified as criminal crimes and civil liability as criminal liability. Implement the provisions of the Criminal Law and relevant judicial interpretations, where small and medium-sized enterprises illegally absorb or covertly absorb deposits from the public, mainly for normal production and business activities, and can promptly clear the absorbed funds, they may be exempted from criminal punishment; where the circumstances are obviously minor and the harm is not large, they are not treated as crimes.
The picture shows the scene of the press conference. Photo by Hou Yusheng
Fa Fa [2022] No. 2
Supreme People's Court
Issued the "On Giving Full Play to the Role of Judicial Functions" and issued
Notice of the Guiding Opinions on Helping the Development of Small and Medium-sized Enterprises
The Higher People's Courts of all provinces, autonomous regions, and municipalities directly under the Central Government, the Military Courts of the People's Liberation Army, and the Production and Construction Corps Branches of the Higher People's Courts of the Xinjiang Uygur Autonomous Region:
The "Guiding Opinions of the Supreme People's Court on Giving Full Play to the Role of Judicial Functions and Helping the Development of Small and Medium-sized Enterprises" is hereby issued to you, please conscientiously implement it.
Supreme People's Court
January 13, 2022
The Supreme People's Court is concerned with giving full play to the role of judicial functions
Guidance to help the development of small and medium-sized enterprises
Small and medium-sized enterprises are a new force in national economic and social development, and an important force for expanding employment, improving people's livelihood, and promoting entrepreneurship and innovation. Further increasing support for small and medium-sized enterprises and stimulating the vitality and development momentum of enterprises is of great significance for continuing to do a good job in the "six stability" and "six guarantees" work, stabilizing the macroeconomic market, accelerating the construction of a new development pattern, and promoting high-quality development. In order to completely, accurately and comprehensively implement the new development concept, further give play to the judicial function of the people's courts, and help the development of small and medium-sized and micro enterprises, the following opinions are proposed.
First, actively create a market environment of fair competition and honest management
1. Protect the living and development space of small and medium-sized enterprises in accordance with the law. Fairly and efficiently try anti-monopoly and anti-unfair competition cases in accordance with the law, and severely punish illegal acts such as compulsory "two choices", low-price dumping, forced tying, shielding and blocking, and single speculation. 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.
2. Deepen the reform of "decentralization service" in services. Strengthen administrative adjudication, support administrative organs in rectifying illegal operations, and standardize market order. Supervise and promote administrative organs to supervise in strict accordance with legally prescribed authority and procedures in accordance with law, and protect the operational autonomy of small and medium-sized enterprises. Promote the elimination of regional divisions and local protection, and promote the implementation of a unified national negative list system for market access. Strengthen the sharing and integration of market entities' litigation-related information and relevant departments' information sharing, providing strong judicial support for the construction of a new credit-based regulatory mechanism.
3. Support the protection of market entities' independent trading. In the trial of contract dispute cases, adhere to the principle of voluntariness and the principle of encouraging transactions, accurately grasp the statutory reasons for determining the invalidity of contracts, reasonably judge the contract validity of various transaction models and transaction structure innovations, give full play to the initiative of small and medium-sized enterprises, and promote the vitality of the market economy. Carry forward the spirit of the contract, market entities with a dominant position take advantage of the fact that small and medium-sized enterprises are in a state of distress or lack of judgment ability to judge contracts with complex contents, resulting in the formation of the contract is obviously unfair, and small and medium-sized enterprises should be supported if they request to revoke the contract; market entities with advantageous positions use standard terms to conclude contracts with small and medium-sized enterprises, and fail to perform the obligation of prompting or explaining in accordance with the provisions of the second paragraph of Article 496 of the Civil Code on terms with which there is a major interest in small and medium-sized enterprises. If the micro, small and medium-sized enterprises do not pay attention to or understand the clause, and the small and medium-sized enterprises claim that the clause does not become the content of the contract, it should be supported; for those who are directly affected by the epidemic and other factors that directly cause the performance of the contract of the small and medium-sized enterprise to be unable to perform or continue to perform the contract, it is obviously unfair to it, and the force majeure or change of circumstances rule is applied in accordance with the provisions of Article 590 or Article 533 of the Civil Code.
4. Support and guide market entities to operate in good faith in accordance with law. In the trial of contract dispute cases, strengthen the use of systems such as liability for breach of contract breach and liability for contractual negligence of appointment contracts for conduct that violates the principle of good faith, such as the parties' violation of their obligations under the reservation contract, or malicious consultation under the pretext of concluding a contract, so as to enhance the market entities' awareness of creditworthiness, rules, and responsibility. After lawfully determining that a contract is not established, invalid, or revoked, the legal liabilities of both parties shall be reasonably determined on the basis of specific circumstances, so as to prevent the dishonest parties from benefiting from the non-establishment, invalidity or revocation of the contract. Promote the establishment of litigation creditworthiness, severely punishing illegal acts that hinder the normal operation and development of small and medium-sized enterprises through false lawsuits and malicious lawsuits. Increase the intensity of enforcement, severely cracking down on untrustworthy enterprises' evasion of debts by circumventing enforcement through methods such as multi-head account opening, related party transactions, and changing legal representatives.
Ii. Earnestly strengthen the judicial protection of property rights of small and medium-sized enterprises
5. Fairly and justly protect the legitimate rights and interests of small and medium-sized enterprises. Adhere to the equal rights, equal opportunities and equal rules of all types of market entities, and treat large enterprises and small and medium-sized and micro enterprises equally in the process of 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. Continue to improve the one-stop diversified dispute resolution mechanism, promote the online litigation model, strengthen the application of simple and small litigation procedures, improve the convenience of litigation, and effectively reduce the litigation costs of small and medium-sized enterprises. Through reasonable determination of the amount of preservation guarantees, the introduction of preservation liability insurance guarantees, etc., reduce the cost of preservation for small and medium-sized enterprises, and ensure the realization of winning claims. For small and medium-sized micro and medium-sized enterprises with serious difficulties in production and operation, judicial assistance such as reducing payment and deferring litigation fees is provided in accordance with law.
6. Strengthen the protection of intellectual property rights of small and medium-sized enterprises. Implement the punitive compensation system for intellectual property infringement, increase the protection of the key core technologies and original innovation achievements of "specialized and specialized" small and medium-sized enterprises, and support and guide enterprises to enhance their core competitiveness through technological progress and scientific and technological innovation. In the process of concluding technology transfer contracts or technology licensing contracts to acquire specific technologies, if the counterparty to the contract uses its dominant position to attach conditions that unreasonably restrict technological competition and technological improvement, or unreasonably requires the repurchase of new technologies or new products developed by small and medium-sized enterprises without compensation or at low prices, and upon review it is found to violate the mandatory provisions of the Anti-Monopoly Law and other laws, the relevant terms or contracts shall be found to be invalid in principle. Properly handle the relationship between the protection of trade secrets and the rational flow of talents, and protect the trade secrets of small and medium-sized enterprises in accordance with the law while safeguarding the legitimate rights and interests of workers in legitimate employment and entrepreneurship. Sanction dishonest litigation and malicious litigation in accordance with the law, and regulate illegal acts that abuse intellectual property rights to hinder the innovation of small and medium-sized enterprises.
7. Resolutely prevent the use of criminal means to interfere in the economic disputes of small and medium-sized enterprises. Strictly implement the legal principles of criminalization of crimes and never suspected crimes, strictly distinguish between legitimate financing of small and medium-sized enterprises and illegal fund-raising, contract disputes and contract fraud, participation in mergers and reorganizations and malicious misappropriation of state-owned assets, and resolutely prevent economic disputes from being identified as criminal crimes and civil liability as criminal liability. Implement the provisions of the Criminal Law and relevant judicial interpretations, where small and medium-sized enterprises illegally absorb or covertly absorb deposits from the public, mainly for normal production and business activities, and can promptly clear the absorbed funds, they may be exempted from criminal punishment; where the circumstances are obviously minor and the harm is not large, they are not treated as crimes.
8. Lawfully protect the lawful rights and interests of market entities such as small and medium-sized enterprises in civil, administrative, and criminal intersectional cases. Effectively implement the provisions of Article 187 of the Civil Code, if the debtor shall bear civil, administrative and criminal liability for the same act, and his property is insufficient to pay, the civil claims of market entities such as small and medium-sized enterprises shall be guaranteed in accordance with law to be reimbursed for administrative and criminal penalties such as fines, fines, and confiscation of property. In the course of partial enforcement of property involved in criminal judgments, where market entities such as small and medium-sized enterprises, as outsiders, raise objections to the subject matter of enforcement, they are to be properly handled in strict accordance with relevant provisions and their lawful property rights and interests are protected in accordance with law. Except as otherwise provided in laws and judicial interpretations, for civil disputes arising between market entities such as small and medium-sized enterprises and criminal suspects or defendants in criminal cases, if the civil cases do not have to be based on the outcome of the trial of the criminal case, the civil case must not be accepted or suspended on the grounds that the criminal case is under investigation or has not yet been concluded, and it is truly avoided that the impact of the criminal case on the market entities such as small and medium-sized enterprises will promptly safeguard their legitimate rights and interests through civil litigation. In the course of the trial of criminal cases in which small and medium-sized micro and micro enterprises and other market entities are defendants, a strict distinction shall be made between illegal gains and lawful property, the property of enterprise legal persons and personal property, and measures for sealing, seizing, and freezing shall be promptly lifted for property that is truly unrelated to the case.
Third, help alleviate the problem of financing difficulties and expensive financing for small and medium-sized enterprises
9. Properly try financial loan dispute cases in accordance with law. Litigation claims such as early maturity of loans and unilateral termination of contracts raised by financial institutions in violation of the policy of inclusive small and micro loan support tools will not be supported; the excess part will not be supported for interest charged by financial institutions and disguised interest collected in the name of consulting fees, guarantee fees and other fees, in strict accordance with the provisions of the preferential interest rate policy for refinancing credits for supporting agriculture and small loans.
10. Help broaden the financing channels for small and medium-sized enterprises. In strict accordance with the provisions of the Civil Code and relevant judicial interpretations, determine the priority of repayment of movable property guarantees such as production equipment, as well as atypical secured claims such as retention of title, financial lease, and factoring, and support small and medium-sized enterprises to broaden financing channels according to their actual conditions. For warehouse receipts, bills of lading, bills of exchange, accounts receivable, intellectual property rights and other rights pledges that comply with the law, as well as confirmation warehouse transactions, they are deemed valid in accordance with law, and financial institutions are supported to innovate and serve credit products for small and medium-sized enterprises. Promote supply chain finance to better serve the development of the real economy in accordance with the law, and in view of the costs incurred in supply chain financial transactions, explore the principle of necessity and appropriateness according to the type of fees, reasonably limit transaction costs, and effectively reduce the financing costs of small and medium-sized enterprises. Actively share information on enterprise litigation with the national comprehensive credit service platform for financing small and medium-sized enterprises, promote the realization of accurate "portraits" of credit evaluations of small and medium-sized enterprises, and improve the availability of enterprise loans.
11. Regulate the order of the private lending market in accordance with laws and regulations. Illegal lending behaviors such as "usurious refinancing" and "professional lending" shall be found to be invalid in accordance with law. Promote the establishment of a "professional moneylender" directory system in local people's courts on the basis of actual conditions in their respective regions. The clauses of the contract for circumventing the upper limit of judicial protection of interest rates are negated in accordance with the law, and the part of the interest that exceeds the provisions of laws and judicial interpretations such as disguised high interest rates is not supported. Where, in the course of trial enforcement, it is discovered that there are suspicions of illegal fund-raising, "routine loans," collection of illegal debts, or so forth, the relevant materials shall be promptly transferred to the relevant departments.
IV. Efficiently handle cases of arrears of accounts owed to small and medium-sized enterprises in accordance with the law
12. Establish and complete long-term mechanisms for handling cases of arrears of accounts owed to small and medium-sized enterprises. The arrears of accounts of small and medium-sized enterprises will be included in the "green channel" for handling cases of arrears of migrant workers' wages, ensuring that small and medium-sized micro and medium-sized enterprises with relatively concentrated employment of migrant workers will promptly return their accounts and pay migrant workers' wages in a timely manner. Work closely with the regulatory authorities for arrears of accounts owed to small and medium-sized enterprises to promote collaborative governance. Increase the applicability of Ping An construction evaluation (comprehensive management of implementation difficulties and source governance) in cases of arrears of accounts owed by organs and public institutions to small and medium-sized enterprises. Promote the work of clearing arrears of accounts owed to small and medium-sized enterprises into the business environment indicator system. Carry out special enforcement actions in cases of arrears of accounts owed to small and medium-sized enterprises, increase the applicability of measures such as punishing untrustworthiness and restricting consumption in accordance with law, and promptly honor the rights and interests of small and medium-sized enterprises in winning lawsuits.
13. Effectively prevent relevant market entities from harming the legitimate rights and interests of small and medium-sized enterprises. Where organs, public institutions and large enterprises refuse or delay the payment of accounts to small and medium-sized enterprises on the grounds that the legal representative or the principal responsible person changes or performs the internal payment process, or refuses or delays the payment of accounts to the small and medium-sized enterprises on the grounds that they are obviously unreasonable such as waiting for the approval of the completion of the project or the audit of the final accounts without the provision of the contract, and the small and medium-sized enterprises file a lawsuit to demand payment, the people's court shall support it. Where government organs, public institutions 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 clearly deviates from the market price, or stipulate 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.
14. Lawfully protect the lawful rights and interests of small and medium-sized enterprises and migrant workers in the field of construction projects. Prudently adopt preservation and enforcement measures for the funds in the pre-sale fund supervision account for commercial housing, the special account for migrant workers' wages and the wage deposit account in accordance with the law, support and ensure that relevant departments prevent and respond to the risk of late delivery of real estate projects, safeguard the legitimate rights and interests of home buyers, and ensure that migrant workers' wages are paid in place. Where the pre-sale fund supervision account for commercial housing is frozen, the local competent department of housing and urban-rural construction shall be promptly notified; except in cases in which the parties apply for the enforcement of creditor's rights such as construction progress funds, material payments, and equipment funds arising from the construction of the commercial housing project, before the first registration of the ownership of the commercial housing project, no deduction measures shall be taken for the funds within the supervision quota in the supervision account, and the use of the funds in the account in accordance with laws and regulations shall not be affected. Except as otherwise otherwise provided by law, funds from the special account for migrant workers' wages and the wage deposit account may not be frozen or transferred for reasons other than the payment of the wages of migrant workers who provide labor for this project; for the purpose of handling cases, the people's courts may adopt pre-freezing measures for the above two types of accounts.
V. Effectively give play to the judicial rescue function for small and medium-sized enterprises
15. Actively promote the parties to reach an enforcement settlement. In the process of enforcement, if small and medium-sized micro and medium-sized enterprises are unable to pay off their enforcement debts due to difficulties in capital liquidity, they actively guide the parties to reach an enforcement settlement agreement for debt relief or deferral of payment; where multiple cases are under the jurisdiction of different people's courts, they may be centrally handled through methods such as promotion of enforcement or designated enforcement, actively promoting the parties to reach a "package" agreement for the performance of debts, and creating conditions for enterprises to alleviate debt pressure and resume production and operation in accordance with the law.
16. Scientifically identify and protect small and medium-sized micro and medium-sized enterprises with salvage value in accordance with law. For small and medium-sized micro and medium-sized enterprises that are unable to pay off all their debts but have rescue value due to the impact of the epidemic and other factors, if the creditors apply for bankruptcy, actively guide the parties to conduct out-of-court settlement through debt restructuring, asset restructuring, etc., to help the enterprise tide over the difficulties. For small and medium-sized micro and medium-sized enterprises that have entered bankruptcy procedures but have rescue value, actively guide enterprises to comprehensively resolve the debt crisis of enterprises through bankruptcy reorganization, reconciliation and other procedures, and repay the corresponding creditors' rights in a fair and orderly manner, so that enterprises can be regenerated.
Sixth, minimize the adverse impact of preservation and enforcement measures on market entities such as small and medium-sized enterprises
17. Comprehensively investigate the problems of seizures and arbitrary seizures that exceed standards. Carry out special investigation operations, and promptly correct the problems of seizures and arbitrary seizures that exceed standards in accordance with law. All levels of people's court shall rely on the 12368 judicial service hotline, enforcement channels for petitioning, and other issues to establish a rapid response mechanism to resolve problems of seizures or seizures that exceed the standard, promptly accepting and promptly handling problems reflected by the parties; where enforcement personnel are at fault for the problems of seizure or seizure in excess of the standard, they are to be seriously pursued for responsibility in accordance with law.
18. Prudently employ property preservation measures in accordance with law. When adopting preservation measures against market entities such as small and medium-sized enterprises, the people's courts shall strictly review them in accordance with the standards and procedures prescribed by law. Where, upon preliminary review, it is found that a party's litigation claim is clearly untenable, the application for preservation submitted by the party shall be rejected in accordance with law. Where a party clearly applies for preservation beyond the scope of the litigation claim, its application for the excess part will not be supported. In a case of monetary claims, if a market entity such as a small and medium-sized micro enterprise that has been subject to preservation measures provides a guarantee requesting the lifting of the preservation measure, and upon review finds that the guarantee is sufficiently effective, it shall be ruled to approve it, and the consent of the applicant for preservation shall not be a necessary condition. Strengthen the review of cases of damages for wrongful preservation, and severely punish illegal acts that maliciously apply for preservation and obstruct the normal business development of market entities such as small and medium-sized enterprises.
19. Flexibly employ measures for sealing and conversion in accordance with law. Where small and medium-sized enterprises and other market entities are seized of factories, machinery and equipment and other productive materials, priority shall be given to the adoption of "live sealing" measures, and where the interests of creditors can be protected, they shall be allowed to continue to use or use the property for financing. Where the overall value of the immovable property that needs to be sealed clearly exceeds the amount of the claim, measures shall be taken to seal the corresponding value part of the immovable property; after the immovable property has not been registered for division, it shall promptly coordinate with the relevant departments to handle the division registration and lift the seizure of the part exceeding the standard. Actively guide the parties to determine the reference price for property disposal through bargaining, inquiry, etc., and effectively save assessment costs for market entities such as small and medium-sized micro and medium-sized enterprises that are enforced. Give play to the advantages of high premium rates and low costs in online judicial auctions, giving priority to the application of online judicial auction methods to dispose of property. Where a market entity such as a small, medium-sized micro, or other market entity that is subject to enforcement believes that the reference price determined by the entrusted assessment is too low for property with a relatively large amount or complicated circumstances, and applies for self-disposal within a certain period of time, the people's court may approve it if the interests of creditors can be protected.
20. Accurately apply punishments for untrustworthiness and consumption restriction measures in accordance with law. Strictly distinguish between the applicable conditions for punishment for untrustworthiness and measures to restrict consumption, and where market entities such as small and medium-sized micro and micro enterprises that are enforced only meet the circumstances of restricting consumption but do not meet the circumstances of untrustworthiness, they must not be included in the list of untrustworthiness. Where there is a strict distinction between untrustworthiness and loss of ability to perform, where market entities such as small and medium-sized micro enterprises lose their ability to perform due to business failures and do not have illegal circumstances such as circumvention or resistance to enforcement provided for in laws or judicial interpretations, they must not be included in the list of untrustworthiness on the grounds that they have the ability to perform and refuse to perform their obligations. Complete mechanisms for credit restoration, where small and medium-sized micro,eds. market entities' untrustworthy information meets the legally prescribed requirements for shielding, blocking measures shall be promptly employed; after the information on untrustworthiness is blocked, where they need to request proof of credit restoration due to financing, bidding, bidding, or so forth, the people's courts may issue relevant supporting materials.
(Source: Supreme People's Court)