Hello. A relative of me was criminally detained by the public security organs for suspected stolen cultural relics. I would like to ask, is a cultural relic and cultural relic value determined by the public security organs?
Answer: According to the provisions of the "Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the State Administration of Cultural Heritage on Several Issues Concerning the Handling of Criminal Cases such as Obstructing Cultural Relics Management" (Public Tongzi [2022] No. 18), for the specialized issues such as the level, category, value of cultural relics involved in the case, such as whether they belong to ancient cultural sites, ancient tombs, ancient buildings, grottoes, temples, stone carvings, murals, important historical sites and representative buildings in modern times, and whether they have immovable cultural relics such as ancient cultural sites, ancient tombs, ancient buildings, grottoes, cave temples, stone carvings, murals, important modern historical sites and representative buildings, and whether they have immovable cultural relics such as ancient cultural relics, such as ancient cultural sites, ancient tombs, ancient buildings, grottoes, cave temples, stone carvings, murals, important modern historical sites and representative buildings in modern times, and have Whether historical, artistic, and scientific values belong to cultural relics protection units at all levels, whether they are precious cultural relics, as well as the degree of damage caused to cultural relics and the impact on cultural relics value by relevant actions, etc., If the cultural relics administrative department has made a determination before the incident, it can directly determine the facts of the relevant case; if it has not been confirmed before the incident, it can be determined in combination with the "Assessment Report on Cultural Relics in question" issued by the agency designated by the Cultural Relics Administrative Department of the State Council. If necessary, the case handling agency may request the cultural relics administrative department to explain the relevant issues in accordance with the law. The "Accurate and Evaluation Report on Cultural Relics Involved Case" shall be issued in accordance with the procedures and format text stipulated in the "Accurate and Evaluation Measures for Cultural Relics Involved Case" (Cultural Relics Bofa [2018] No. 4).
Hello. I would like to ask, under , how will the court make a determination and judgment when there is a dispute over the expropriation right of the two parties to choose the specific compensation plan?
Answer: According to Article 21 of the "Regulations on the Acquisition and Compensation of Houses on State-owned Land", the expropriated person can choose to compensate for money or to choose to exchange the property rights of the house. If the expropriated person chooses to exchange the property rights of the house, the municipal and county-level people's governments shall provide the house for the property rights exchange and calculate and settle the difference between the value of the expropriated house and the value of the house used for the property rights exchange with the expropriated person. If the expropriated person chooses to exchange the property rights of the house in the reconstruction area due to the reconstruction area due to the reconstruction area, the municipal and county-level people's governments that make the housing expropriation decision shall provide the houses in the reconstruction area or nearby areas.
In judicial practice, the housing expropriation department shall provide different compensation plans such as monetary compensation, house property rights exchange, etc. for the expropriation person to choose. If the housing expropriation department does not provide it, the relevant housing expropriation compensation decision shall be revoked; if the housing expropriation department has provided it but the expropriated person does not make a choice (overdue) the corresponding consequences shall be borne by the expropriation person.
Hello. I would like to ask, how to divide the property rights houses purchased by couples after marriage and property registration does not involve others? How to determine the value of property that can be divided?
Answer: In judicial practice, the people's court may, based on the contributions and contributions of both parties, in combination with the principles of taking care of the woman, children, and the non-fault party, decide that the house belongs to one spouse, and the house discount shall be paid to the other party based on the contribution and contribution of both parties. When calculating the discount on a house, the base is calculated based on the existing property value of the house that is available for division rather than the market value of the house. Specifically, the market value of the house can be determined through consultation between the two parties or entrusted evaluation. In addition, the principal of the loan owed must be found. The value of the property that can be divided should be determined based on the market value of the house. The interest on the loan owed should not be deducted.
Hello. I would like to ask, if the mandatory closing conditions for has indeed met the conditions for forced closing, can the futures operating institutions forcefully close all traders' positions?
Answer: According to Article 39 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Futures Disputes Cases", the amount of forced closing of positions by futures exchanges or futures companies shall be basically equivalent to the amount of margin required by futures companies or customers. The losses caused by excessive closing of positions shall be borne by the person who forcibly closing the position.
In judicial practice, futures operating institutions should follow the "principle of moderation" forcibly closing positions and cannot arbitrarily punish traders' positions. This is because the purpose of forcibly closing the position is to make up for the trader's margin and control its risk within an acceptable range. The consequence of forcibly closing the position is that the balanced margin is sufficient to maintain the contract in the position, so the amount of closing the position is roughly equivalent to the amount of margin required to be supplemented, which is the proper meaning of a reasonable exercise of the right to close the position. If the futures business institution improperly disposes of other people's property, it constitutes infringement and should bear the corresponding civil liability for its own fault.
Hello. I would like to ask, if the contract of is only signed by the legal representative and the unit’s official seal is not stamped, should the unit bear the responsibility?
Answer: According to the provisions of Article 490, paragraph 1 of the Civil Code, if the parties enter into a contract in the form of a contract, the contract shall be established when all parties sign, stamp or fingerprint. Article 61 of the Civil Code shall, in accordance with the provisions of the law or the articles of association of the legal person, the person in charge of the legal person engaging in civil activities shall be the legal representative of the legal person. The legal consequences of civil activities engaged in by the legal representative in the name of the legal person shall be borne by the legal person. The restrictions on the legal representative's right to represent the legal representative by the articles of association or the legal person's authority shall not be opposed to the bona fide counterparty.
Therefore, the legal representative exercises his powers on behalf of the legal person, and the legal person shall bear the responsibility for civil activities engaged in the name of the legal person, and the seal of the official seal is not a necessary condition for the validity of the contract. However, there are exceptions. According to Article 504 of the Civil Code, if the legal representative of a legal person or the person in charge of a non-legal person organization enters into a contract that exceeds its authority, unless the counterparty knows or should know that it exceeds its authority, the representative act is valid, and the contract concluded is effective for the legal person or the non-legal person organization. Therefore, if one party to the contract knows or should know that the other party’s legal representative exceeds his authority and still signs a contract with him, a contract with only the legal representative signed without the official seal is not binding on the legal representative represented by the legal representative.
Online answers to lawyers in this issue:
Lawyer Jin Wei
Shanghai Hanhong Law Firm
