Publications

Company A and Company B have long-term business relations. To secure debt recovery and simplify procedures, Company A requires the guarantor to issue a general guarantee undertaking, covering all debts between the two companies. Although this practice is similar to the “maximum amount guarantee” stipulated in the “Civil Code”, the differences are obvious: the latter requires a definite term and generally sets a maximum limit on the creditor’s claim. Then whether Company A’s requirement is valid? In judicial practice, the key to determining the validity lies in whether there is an identifiable main contract or fundamental principal claim. Firstly, if…

Article 40, Item 3 of the “Labor Contract Law” stipulates: “If the objective circumstances on which the labor contract was concluded have undergone material changes, rendering the labor contract unperformable, and the employer and the employee fail to reach an agreement on amending the labor contract through negotiation, the employer may rescind the labor contract by notifying the employee in writing 30 days in advance or by paying the employee an additional month’s salary.” However, how to define the “material changes in objective circumstances” has long been a difficult issue in practice, and employers are often anxious about rescinding labor…

In commercial activities, parties often record their phased opinions in the form of meeting minutes or memorandums before entering into a formal agreement. To avoid being deemed to have concluded a contract, some parties may add a clause to the memorandum stating that it “shall not be binding on either party”. However, in most cases, the memorandum is without such clause. In such circumstances, is a memorandum legally binding? From the perspective of judicial practice rules, a memorandum is generally deemed legally binding if it has the following characteristics: Firstly, it contains the essential terms of a contract. Some parties…

In practice, some companies may provide additional benefits to employees, such as additional annual leave, enterprise annuities, and so on. Many people believe that such additional benefits are not statutory obligations of companies, so companies could grant, adjust or revoke those benefits at their own discretion without any legal risks. This perception is incorrect. If handling additional benefits improperly, companies may encounter troubles and burdens. Then how to handle additional benefits properly? Firstly, it is recommended to formulate clear rules for additional benefits. These rules should cover the eligible recipients or eligibility criteria, specific content, payment methods and timelines of…

With the development of AI technology and related industries, its high efficiency and low cost have won the favor of many enterprises. Using AI to generate advertisements has become increasingly common. However, if enterprises ignore the compliance of the content of advertising promotions, they may encounter the legal risks such as administrative penalties, and damages to their brand and reputation. This article summarizes the risks of using AI to generate advertisements and the corresponding countermeasures. Risk 1: It is Difficult for enterprises to protect AI-Generated Advertisements on the ground of copyright. Compared with advertisements created by humans, AI-generated advertisements are…

Labor disputes shall be submitted to labor arbitration as a pre-litigation procedure. If any party is dissatisfied with the arbitration award, it may file a lawsuit. Therefore, the time limits for labor dispute cases are different from those for civil litigation. According to Paragraph 1 of Article 27 of the “Labor Dispute Mediation and Arbitration Law”, the time limit for applying for arbitration of a labor dispute is 1 year, calculated from the date when the party knows or should know that its rights have been infringed. In judicial practice, there are different opinions on the starting date for calculating…

Case 1: In April 2023, the company notified Zhu that due to its poor operating performance, it would arrange for him to take a leave of absence. It would pay him labor remuneration in accordance with legal provisions, and the resumption date would be announced separately. The company paid him full salary in the first month and then paid him at the minimum wage standard thereafter. During the leave, Zhu repeatedly asked about the resumption date, but the company only replied, “Wait for further notice”. Half a year later, Zhu filed an application for labor arbitration on the grounds that…

With the development of electronic information technology, electronic contracts are increasingly widely used in commercial activities. Some electronic contracts stipulate that “the court at the contract signing location shall have jurisdiction”. However, due to the paperless and cross-regional nature of electronic contracts, how to determine the “contract signing location” of electronic contracts? The agreement with a specific location which shall have the actual connection with the agreement. According to Article 35 of the “Civil Procedure Law”, parties to a contract may, by written agreement, choose a court with jurisdiction over a dispute that has an actual connection to the dispute,…

Case 1: In August 2023, a property management company proposed converting the employment form of labor contract to labor dispatch, Miao and several other employees refused such proposal. In early September 2023, the company arranged a training for employees, but Miao and several other employees refused to participate. Instead, they gathered at the residential community where their posts were located for several consecutive days, marched in a line, and chanted slogans. ((2024) Hu 0115 Min Chu No. 34302) Case 2: From October 25 to 28, 2016, employees of an energy company gathered on the green space at the entrance of…

In recent years, debt disputes have occurred frequently. Many companies are short of cash flow, and choose to repay debts with real estate, vehicles, goods, and other items. Many creditors are unwilling to accept debt repayment in kind. Compared with cash, debt repayment in kind involves many risks. However, under the current economic situation, if the risks of debt repayment in kind are fully considered in advance, it can still be a second-best option. Generally speaking, debt repayment in kind mainly involves risks in four aspects: Ownership of the Item Before accepting debt repayment in kind, the creditor should carefully…