Public Interest Law Popularization Bulletin, Issue 30, 2024
On April 17, the "Ask the Law in Hunan" column of the red network received a total of 107 replies from lawyers, and the main areas of consultation were marriage and family, consumer rights protection, labor security, etc.
Enthusiastic lawyers mainly include: Wang Zhuang of Hunan Tiandiren Law Firm, Huang Chunxiang of Beijing Jingshi (Changsha) Law Firm, and Tang Min of Hunan Changyan Law Firm.
Lawyer's Response Featured
directory
1
Which is the most cost-effective way to transfer the house to a minor child?
2
Who should provide evidence for buying pirated books online?
3
After the decoration, I found that the color difference of the floor tiles is too large, how to claim compensation from the merchant?
4
Is the letter of commitment signed during the marriage valid?
5
How to prove that the husband and wife are separated, and is it considered to be separated if they work outside the home and live in a dormitory?
6
How to apply for compensation if I am dismissed without any notice and there is no labor contract?
1
Xiangtan netizens asked: Is it okay to transfer the house to a minor child? Which transfer method is the most cost-effective?
Hunan Tiandiren Law Firm
Lawyer Wang Zhuang answers:
Hello, when parents want to transfer their real estate to their children, they can generally use three ways: inheritance, gift, and sale. In addition to the direct costs incurred in transferring the ownership to the child, if the child intends to sell again in the future, it is also necessary to consider the possible additional costs when selling again. If the house is only for your own use and there is no intention of selling the house, the main consideration at this time is the tax generated by the transfer, whether it is inheritance, or the gift of the property to spouse, parents, children, grandparents, grandchildren, grandchildren, siblings, are exempt from individual income tax. 1. The property is inherited by the children. Stamp duty is exempt from deed duty. When selling again, see whether the house has been acquired for the first time (that is, calculated from the time of acquisition by the deceased) for 5 years, and then see whether the current owner is the only residence in the family, and if these two conditions are met, the individual income tax can be reduced. The above situation also includes the registration fee, the transfer of the allocated above-ground residence and the land transfer fee. VAT is exempt after two years. 2. Gift and transfer. Compared with inheritance transfer, gift transfer is 3% more deed tax. There is no individual income tax, and when selling again, it depends on whether the first acquisition period of the house (that is, calculated from the time of acquisition by the original donor) is 5 years, and then whether the current property owner is the only residence in the family, and the individual income tax can be reduced if these two conditions are met. If the ancestral house, luxury house, new real estate and other items are not planned to be traded in the short term, or if there are multiple houses, people who do not have a place to buy a house, etc., cannot be transferred through the sale and purchase, the real estate gift may not be impossible. 3. Sold to adult children. To pay all kinds of taxes and fees, value-added tax and surcharge, individual income tax, deed tax, etc., are calculated in two situations: the first type: the real estate is five years old, unique, exempt from value-added tax and surcharge, individual income tax, only need to pay deed tax and property right transfer registration fees, etc.; In summary, the inheritance transfer fee is the lowest, and the deed tax for gift transfer is 3% more, while the transaction transfer depends on more conditions and has a larger range of changes.
2
Yiyang netizens asked: What should I do if I buy a pirated book online? Is it the consumer who proves that this is a pirated book, or the store that proves that this is not a pirated book?
Beijing Jingshi (Changsha) Law Firm
Lawyer Huang Chunxiang answers: Hello, according to the principle of "whoever asserts the claim shall provide evidence", if you find that it is pirated, you need to provide preliminary evidence to prove that it is a pirated book. If the bookstore claims to sell genuine books, it should provide purchase channels, invoices, and dealer authorizations to prove this. In addition, if you find that the book you purchased is pirated, you can also report it to your local news publisher. Link to legal provisions: Article 67 of the Civil Procedure Law of the People's Republic of China The parties have the responsibility to provide evidence for their own claims. The people's courts shall investigate and collect evidence that parties and their agents ad litem are unable to collect on their own for objective reasons, or evidence that the people's courts find necessary for the trial of the case. The people's courts shall follow legally-prescribed procedures to comprehensively and objectively review and verify evidence. Article 68: Parties shall promptly provide evidence for their own claims. On the basis of the parties' claims and the circumstances of the trial, the people's courts are to determine the evidence that the parties shall provide and the time limit thereof. Where the parties have real difficulties in providing evidence within the time limit, they may apply to the people's court for an extension of the time limit, and the people's court will appropriately extend it on the basis of the party's application. Where a party fails to provide evidence within the time limit, the people's court shall order it to explain the reasons; where the party refuses to explain the reasons or the reasons are not sustained, the people's court may, on the basis of different circumstances, not accept the evidence, or accept the evidence but give a reprimand or a fine.
3
Huaihua netizens asked: After the decoration, I found that the color difference of the floor tiles was too big, how to claim compensation from the merchant?
Beijing Jingshi (Changsha) Law Firm
Lawyer Huang Chunxiang answers: Hello, you can fix the evidence first, such as video, take pictures, etc., and then negotiate to make it clear that the renovated floor tiles do not meet the previous agreement between the two parties (confirmed according to the contract signed by both parties, communication records between the two parties, etc.), and suggest that the other party rework or compensate, if the negotiation fails, you can sue the court. Legal basis: Article 582 of the Civil Code of the People's Republic of China If the performance does not conform to the agreement, the liability for breach of contract shall be borne in accordance with the agreement of the parties. Where there is no agreement on liability for breach of contract or the agreement is not clear, and it cannot be determined in accordance with the provisions of Article 510 of this Law, the injured party may, based on the nature of the subject matter and the size of the loss, reasonably choose to request the other party to bear liability for breach of contract such as repair, rework, replacement, return, reduction of price or remuneration.
4
Loudi netizens asked: My husband signed a letter of commitment for me, once divorced, he left the house, had no custody of children, and paid 5,000 yuan for the living expenses of 2 children every month, is such a letter of commitment useful?
Hunan Tiandiren Law Firm
Lawyer Wang Zhuang answers:
Hello, if your letter of commitment is essentially an agreement on the disposition of property agreed in writing in the future for breach of the duty of fidelity between the husband and wife, it may fall under the category of "fidelity agreement". However, the essence of marital fidelity belongs to the category of emotional morality, and the loyalty agreement entered into between husband and wife should be consciously performed by the parties in accordance with the principle of good faith, and the law does not prohibit the husband and wife from signing such agreements, but it does not give such agreements enforceability, and cannot be used as a basis for dividing the joint property of the husband and wife or determining the ownership of child custody. You can sign a written marital property agreement with the other party, which stipulates that both parties will have pre-marital and marital assets in your favor. Link to the law: Article 1065 of the Civil Code of the People's Republic of China Article 1065 A man and a woman may agree that the property acquired during the marriage relationship and the property before the marriage shall be owned separately or jointly or partly separately and partly jointly. The agreement shall be in writing. Where there is no agreement or the agreement is not clear, the provisions of articles 1062 and 1063 of this Law apply. The agreement between the husband and wife on the property acquired during the marriage and the property before the marriage is legally binding on both parties. If the husband and wife agree that the property acquired during the existence of the marital relationship shall belong to each other, and the debts owed by the husband or wife to the outside world are known to the counterpart, the personal property of the husband or wife shall be repaid.
5
Zhuzhou netizens asked: If you work outside and have not lived together in a dormitory, can it be considered a separation when you apply for divorce?
Beijing Jingshi (Changsha) Law Firm
Lawyer Huang Chunxiang answers: Hello, when filing a divorce, the people's court will look at whether the relationship between the two parties has broken down when hearing the divorce case. One of the circumstances in which a husband and wife break down is due to a relationship that has been discordant for two years. Generally, one of the spouses will provide a rental contract, a declaration of separation, a separation agreement, and a residence certificate to prove that the parties are in a state of separation due to emotional discord. You ask the employer to issue a certificate of residence, which can be regarded as a certificate of separation, but you are separated for work reasons, and there is no way to show that the separation is due to discord between the husband and wife, and you need to collect other evidence of the breakdown of the relationship between the husband and wife. In the case of a second divorce lawsuit, only evidence is required to provide evidence that the divorce is not allowed to be separated for one year, regardless of whether it is due to work reasons or emotional discord. Link to legal provisions: Article 1079 of the Civil Code of the People's Republic of China Where one of the spouses requests a divorce, the relevant organization may conduct mediation or directly file a divorce lawsuit with the people's court. When hearing a divorce case, the people's court shall conduct mediation, and if the relationship has truly broken down and the mediation is ineffective, the divorce shall be granted. In any of the following circumstances, where mediation fails, a divorce shall be granted: (1) bigamy or cohabitation with another person; (2) committing domestic violence or abusing or abandoning a family member; (3) having bad habits such as gambling or drug abuse that has been repeatedly reprimanded; (4) having been separated for two years due to emotional discord; (5) other circumstances that have led to the breakdown of the relationship between the husband and wife. Where one party is declared missing and the other party initiates divorce proceedings, the divorce shall be granted. Where, after a people's court has ruled that divorce is not permitted, the parties have been separated for one year, and one party initiates divorce proceedings again, the divorce shall be granted.
6
Yongzhou netizens asked: I was kicked out of the company without any notice, and there is no labor contract, how to apply for compensation?
Hunan Changyan Law Firm
Lawyer Tang Min answers:
Hello, this situation is an illegal termination of the labor contract by the company, and it is necessary to pay compensation to the employee. The compensation is twice the amount of economic compensation. In addition, if the company has not signed a labor contract, and has not signed a written labor contract with the employee for more than one month but less than one year, it may claim to the company to pay twice the monthly wage. Legal basis: Article 10 of the Labor Contract Law establishes a written labor contract. If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. If the employer and the employee conclude a labor contract before employment, the employment relationship shall be established from the date of employment. Article 47 Economic compensation shall be paid to the worker according to the number of years he or she has worked in the unit and one month's salary for each full year. If it is more than six months but less than one year, it shall be counted as one year, and if it is less than six months, the worker shall be paid half a month's salary. If the monthly wage of a worker is three times higher than the average monthly wage of the employee in the previous year as announced by the people's government of the municipality directly under the Central Government or the city divided into districts where the employer is located, the standard of severance shall be paid to him at the rate of three times the average monthly wage of the worker, and the maximum period of payment of severance shall not exceed 12 years. The term "monthly wage" mentioned in this article refers to the average salary of an employee in the 12 months prior to the termination or dissolution of the labor contract. Article 82 Where an employer fails to conclude a written labor contract with a worker for more than one month but less than one year from the date of employment, it shall pay the worker twice the monthly wage. If an employer violates the provisions of this Law by failing to conclude an indefinite-term labor contract with an employee, it shall pay the employee twice the monthly salary from the date on which the indefinite-term labor contract should have been concluded. Article 87 Where an employer dissolves or terminates a labor contract in violation of the provisions of this Law, it shall pay compensation to the worker in accordance with twice the standard of economic compensation provided for in Article 47 of this Law. Source: Red Network "Ask Hunan" column Editor: He Luyan