人身和财产权 Person and Property Rights
Land Dispute 1963
原作者：编辑： Yve -
Sun Dawu: If you want to be a clean person, you can't do it
Author: Edit: Yve -
Source: China Digital Age
December 7, 2020
1. The Great Catch of Terror
An anonymous person interviewed by Southern Weekend said that the "disruption of production and operation" in the police report originated from a land dispute between Langwuzhuang Village, where Sun Dawu is located, and Xushui State Farm. In 1963, Langwuzhuang Village once handed over 740 acres of land to Xushui State Farm for cultivation. In fact, the latter occupies more than 2,000 mu of land. In order to confirm the land rights, the two sides have been arguing for several years. Later, Langwuzhuang Village leased the land to Dawu Plantation Company. On June 21 and August 4 this year, Dawu Group personnel and Xushui State Farm personnel clashed twice. In the second conflict, the Xushui District Public Security Bureau intervened and had a physical conflict with Dawu Group employees. More than 20 employees of Dawu Group were injured and 39 employees were arrested.
According to a report by VOA, Sun Dawu said in an interview later that the police clearly favored the Xushui State-owned Farm, "it was deemed that they belonged to the state, but in fact they were a group for personal gain in the name of the state."
* Mou, Chinese unit of land measurement that varies with location but is commonly 806.65 square yards (0.165 acre, or 666.5 square metres).
The central issue between Xushui State Farm and Dawu Group is a land dispute. There are thousands of land disputes throughout China every year. In most cases, they result in confiscation of the land at some point. Social unrest is created in the process.
The fact is that this particular land dispute began in 1963 or 58 years ago. The issue is not so much what happened in two incidents referred to as “6.21事件”and 和“8.4事件” in 2020 at a village in Langwuzhuang leading to eight charges against only one side in the dispute. Two questions should be asked. Why has the government not developed a satisfactory mechanism in 58 years to resolve disputes like these? Why hasn't the law been adequately reformed to avoid disputes?
China grants some property rights
Newly assertive condo owners win concessions, but rural landholders are still at the mercy of corrupt officials.
Los Angeles Times
March 16, 2007|Mark Magnier | Times Staff Writer
By Chinese standards, the lawmaking process was relatively open. Most laws in China are written by officials or senior Communist Party cadres behind closed doors. But about 14,000 suggestions were considered during the drafting of the property measure, which took almost a decade, including a two-year delay after a prominent critic labeled it unconstitutional.
"With each debate, we saw progress," said Jiang Ping, head of the drafting team and a law professor at Beijing's China University of Political Science and Law. "At times, it's been hard to find common ground with all these viewpoints."
Several of the eight drafts were not made public, and much of the latter-stage maneuvering was done in secret. Furthermore, some critics say, a basic assumption behind the law is that an omniscient government grants privileges to its citizens, not that they have rights. Though the law extends and better defines use rights, land is still owned by the state or local cooperatives acting on its behalf.
Still, Sun Dawu, founder of a poultry and animal feed conglomerate south of Beijing in Hebei province, said passage of the law would be a step forward.
"Having a law that protects everyone's rights, rich and poor, is progress," Sun said at his complex of hatcheries, grain fields, vineyards, a school and a temple to Confucius, his hero.
"At the same time, we still can't put undue trust in any law until we get a healthy judiciary and more rigorous legal tradition," said the entrepreneur, who was jailed for eight months in 2003 for competing against state-owned banks.
Among the reasons it took so long to draft the law are popular concern about the gap between rich and poor and a widespread perception that wealth is closely linked with corruption.
2016-11-17 18:19 阅读(633)评论(0)
Sun Dawu: Talk about the protection of legal persons’ property rights
2016-11-17 18:19 Reading(633)Comment(0)
Press also: From November 14th to 15th, 2016, Dawu Group, located in Xushui District, Baoding City, Hebei Province, invited a group of domestic economists and jurists to participate in the meeting room of Dawu Group Business Center. A "Seminar on Inheritance and Governance of Private Enterprise Property Rights." During the meeting, Mr. Sun Dawu, Chairman of the Supervisory Committee of Dawu Group, gave a keynote speech on the issue of "Protection of Legal Person Property Rights", and responded to the questions and questions of some scholars in the field of economics and law who attended the meeting.
This speech by Mr. Sun Dawu is a transcript of the meeting, which was later reviewed and approved by Mr. Sun Dawu. The full text is now released for sharing by Kaidi netizens.
(Yichen at Baoding Dawu Group on November 15, 2016)
The following is the full text of Sun Dawu's keynote speech:
I think that when we talk about the protection of corporate property, we need to start from two aspects, one is government protection, and the other is our own protection.
It can be known from the general principles of civil law that a legal person is an organization that has civil rights and capacity for civil conduct, enjoys civil rights in accordance with the law, and undertakes civil obligations. Legal persons are divided into four types in our country, enterprise legal persons, agency legal persons, business legal persons and social organization legal persons. In terms of definition, the law says very clearly that these four types of legal persons are equal civil subjects.
In our legislation and judicial interpretation, legal persons are equal civil subjects. Although this is set, it is far from the case during the operation. For example, Wu Ying and Zeng Chengjie, after they were arrested, their legal persons were wiped out.
It stands to reason that both Zeng Chengjie and Wu Ying are legal representatives of corporate legal persons, and legal representatives can appoint legal representatives. For example, I am the legal representative of the Dawu Group enterprise. If I am arrested, then I can appoint my son as the legal representative to exercise authority on my behalf. In other words, the legal representative can be arrested, but the legal person organization cannot be eliminated. But in practice, corporate legal persons, especially private enterprise legal persons, hardly exist. As long as the legal representative catches it, this legal person organization is almost gone. The government will seal up the legal person’s property and bank account numbers, and the enterprise will be taken over, even demobilized and auctioned off. When dealing with such problems, the government or public security organs neither follow the procedures for the replacement of the legal representative nor the bankruptcy procedures, but directly eliminate the organization as a corporate legal person.
Is this also true for institutional legal persons, business legal persons, or social organization legal persons? It's not. For example, in Tianjin, the mayor, deputy mayor, and police chief of Tianjin were all arrested, but the Tianjin municipal government was not disbanded. After new officials arrived, the agency still operates as a legal person. State-owned hospitals and schools are all corporate legal persons. These legal persons will not destroy a hospital or school just because of problems with the hospital dean or school principal. Is this equal?
The legal person status of private enterprises cannot be guaranteed. It needs to be emphasized that a legal person crime is not a natural person crime. If it is a natural person crime, we can confiscate his personal property if he is caught; a legal person is a group and an organization, and the interests of a legal person are the concept of legal person property rights. It is very broad, so when dealing with legal person crimes, we must pay special attention to the protection of legal person’s property rights.
What kind of property is legal person property? What is the property right of a legal person? My point of view is: the original part of the legal person’s property is the capital contribution of the shareholders, which occupies a very small part of the legal person’s property, and may not reach one tenth. why? Because once an enterprise is registered as a limited liability company, the enterprise can obtain loans, obtain input from workers (workers are paid first), suppliers can also provide goods, and there will be government taxes and the interests of surrounding communities. and many more. All of these belong to the property of legal persons.
Legal person property is the property that is at the disposal of the legal representative or the legal representative, not the shareholder. This view is very important.
Why do you want to ask this question? As I just said, if the legal representative of an enterprise has a problem, the government doesn't care about the legal person status of the enterprise at all, so do we care about it? Often do not care. Because we often bring the power of shareholders to corporate property. In a legal person, whoever has more shares has a greater right to speak, and shareholders determine the right to speak and the right to control the legal person’s property according to the number of shares. This is a big misunderstanding.
for example. We cooperated with New Hope Group and invested in the construction of New Hope Dawu Company. When negotiating, we accounted for 49% and New Hope accounted for 51%, because New Hope is a listed company, and all joint venture companies have more shares in New Hope. I agreed. When the board of directors was formed, our people served as the chairman of the board, that is, the legal representative, and their people served as the general manager. In actual operation, New Hope will manage the new large company as a subsidiary, and the general manager can arbitrarily mobilize assets and receive millions of dollars in bonuses. We are the legal representatives, but we don't have any power, so there is a dispute. Their executives came to talk to me and said, "In joint ventures, as long as we hold a controlling stake, we will do it. Not only is the new hope doing this, but all companies in the world, as long as controlling stakes, have the final say." I said. "This is not right. It is clearly defined in the company law. The general meeting of shareholders is one share, one vote, and you speak according to money; the board of directors is one person, one vote, and you speak according to ability. What you do is actually inconsistent with the company law. "Before the general meeting of shareholders has formed a board of directors, representatives can be elected to preside, and the major shareholders can have the final say. But once the board of directors is produced, this power is transferred to the legal person, and the legal representative is the ruler of the legal person's property.
The provisions of the company law were originally very clear, but there are large shareholders all over the world where the property of a legal person is dominated, and the domestic situation is even more serious. There is no separation between the property of entrepreneurs and the property of enterprises. Personal property and legal person property are mixed together. Therefore, I said that many of our entrepreneurs themselves did not attach importance to the legal person status of their enterprises. This is very sad.
In reality, there are many situations in which the roles of shareholders and legal representatives are confused. For example, in banks, Dawu Group does not have loans now, but when we loaned out more than ten years ago, I was the legal representative and chairman of the board, but my signature was invalid when the loan was made. why? My wife and son are also required to sign because they are shareholders. Why does a legal person want to make a loan and need all shareholders to sign? Because we don't have the concept of legal person property and legal person property rights in practice. I estimate that all banks across the country are doing this, using this form to deprive the legal representative of the legal representative’s right to represent or control the legal person’s property.
Let's talk about our courts, this kind of problem is even more serious. Ten years ago, I once learned about the grievances between brothers Sun Yingui and Sun Chungui. Sun Yingui wanted to develop the ladder project in Zhangjiajie and hired his brother Sun Chungui to take charge. A few years later, the project was successful, very profitable, and became a money printing machine. At this time, Sun Yingui said, "I will give you three million, and you will go home for the elderly." Sun Chungui disagreed, thinking that this project was his own. Sun Yingui said, "You were hired by me, you worked for me, and I invested the original capital." Sun Chungui said, "I pay the tax, I am responsible for the loan, I hire the labor, and now I earn money. Now, how can you let me go?" The two brothers turned their faces and filed a lawsuit. The court supported Sun Yingui. The original funds belonged to him. Although Sun Chungui paid a lot, the project was not his. Sun Chungui approved the court's decision, and the two brothers signed an agreement. Sun Yingui gave Sun Chungui a retirement fee of 3 million. But after signing this agreement, Sun Chungui felt resentful and went to report Sun Yingui's tax evasion. Sun Yingui was very angry, entangled for a long time, and decided not to give the three million. Sun Chungui took the agreement to the court to sue, but the court still supported Sun Yingui. why? Sun Yingui’s reasoning was “I signed, but I did not hold a board of directors or a shareholder meeting.” Based on this, the court ruled that Sun Yingui won the lawsuit and held that the chairman’s signature was invalid. I think, the chairman is the legal representative, how can his signature be invalid?
Such examples abound. In practice, we ignore the status of legal persons and the status of legal persons' property rights. So I said that to protect the property rights of legal persons, two efforts are required. One is to improve this issue from the law, including legislation and justice; on the other hand, we ourselves should also pay attention to the property rights of legal persons and legal persons. Relatively speaking, our own efforts are easier to control.
How to protect the property rights of legal persons? First of all, from the perspective of the enterprise itself, we should clarify the concept and improve the system. For example, the family property and business property are clearly separated, and the property of the entrepreneur is separated from the property of the enterprise. Similarly, the power of the general meeting of shareholders and the power of the board of directors must be clearly separated, and it is necessary to straighten out which are private power and which are public power.
We need to know that shareholders or your shares are private rights, which are completely inheritable, and it is justified. Property can be inherited, there is no problem. But power, such as the power and position of the chairman, cannot be inherited because it is public power. Even if you are a 100% shareholder, your child may not be the chairman of the board. why? What you need to be a chairman is ability, not the number of shares. Can children fully inherit the abilities of the previous generation? Can a person in his 20s and 30s possess the wisdom and experience of a person in his 60s and 70s? impossible. The future generations have neither this kind of experience nor this kind of ability, how can they be chairman?
For example, Haixin Group in Shanxi, a very large enterprise. The entrepreneur Li Haicang died, and his son became chairman at the age of 22. Is this legal? What reason does he have to be chairman? Just because he is a major shareholder! But this company has nearly 10,000 employees. Can this kind of public power be passed on privately? In the end, the enterprise closed down and nearly 10,000 workers were dissolved, leaving behind tens of billions of debts. How can the local government solve it? The government has a headache. How to deal with more than 10,000 workers and tens of billions of debts?
Including Wang Yongqing of Taiwan, the king of plastics, but after his death, the company cannot pass on. So this is a universal problem, and it is also a worldwide problem. An enterprise should live by those with virtue and those with ability. This is the true meaning of the board of directors, and the board of directors should speak according to their ability. Let the virtuous and capable people control the enterprise. Rather than let the major shareholders take control, let alone the children of major shareholders. Therefore, property rights and legal person property rights are two different concepts. Property rights can be inherited, but legal person property rights should not be inherited. The property rights of legal persons should be public rights, and this issue must be cleared out.
Since the day our Dawu Group started our business, my wife and I have been very clear about the separation of personal property and corporate property. Our family lives on wages. Corporate property is corporate property, and family property is family property. Even when the business was just starting, I needed my wife's approval for spending money, and my approval for her spending money. Later, the company got bigger and established a private enterprise constitutional system. Our board of supervisors exercised the power of shareholders, cutting out 10% of profits to do good deeds, using subsidies to ensure the lives of family members, and other housing and medical services. Regulations. This kind of property is clearly cut, and we are benefiting.
In 2003, more than 20 people in the group were arrested. Our three brothers, plus a few key cadres, financial personnel, etc., but the public security checked so many accounts and there were no problems. Because the property of our family and business is very clear, we have neither paid dividends nor transferred property. It can be said that we earn cleanly and spend our money clearly. In the end, I was convicted of "illegal absorbing public deposits" and sentenced to three and four probationary sentences. My two brothers were originally charged with tax evasion, but in the end they got rid of it.
By the way, it is untenable to sentence me to "illegal absorption of public deposits". At that time, Dawu Group borrowed money, not my Sun Dawu borrowed money. The Dawu Group took deposits, and the IOU was stamped with the official seal of the Dawu Group, indicating that the Dawu Group borrowed money for the construction of the school, and the IOU was stamped. Therefore, neither my Sun Dawu borrowed the money nor my Sun Dawu spent it, but the Dawu Group borrowed the money and built the school. At the time of the verdict, the court found Dawu Group guilty of "illegal absorbing public deposits" and borrowed from 611 households. How to determine that these 611 households are illegal? The court held that these 611 households had no specific relationship with Sun Dawu himself, such as relatives, friends, classmates, or comrades-in-arms, and therefore constituted the crime of illegally absorbing public deposits. This logic is confusing. How can Dawu Group’s loan be convicted of a crime because it has nothing to do with me? These 611 households have no specific relationship with me, but they are all farmers, growers, or parents of Dawu school students, and they have a specific relationship with Dawu Group. Is it logical that the court uses the legal representative to assess Dawu Group’s borrowing facts?
I believe that the property rights of legal persons are a kind of public power, while the general meeting of shareholders is a kind of private power. Property cannot be named public, and public power cannot be named private. Property can be inherited, but the position of the manager cannot be inherited. The position of the chairman is a public power, because the chairman is not the power of the general meeting of shareholders, but the power of the legal person's property rights.
Why does Dawu Group implement a private enterprise constitutional system? In 2003, I was sentenced to three delays and four. According to the law, I could no longer be the legal representative of the company. At that time, my son Sun Meng was acting as the chairman of the company. He found it very difficult and couldn’t do it. He didn’t want to do it. Then Who will do it? The enterprise has no shares, and the shareholding system cannot continue. In the end, under the game of all parties, we finally formed such a system.
Private enterprise constitutional system. Property rights remain unchanged and private; public power belongs to everyone, and everyone is governed by the public. The chairman of the board is elected through democratic election; then the fruits of labor are shared by everyone, and the distribution power is given to the board of directors. In principle, our board of supervisors does not interfere with the distribution plan of the board of directors, but we have a system. For example, the salary of middle-level cadres is not more than 5 times the average salary of employees, and the salary of high-level cadres is not more than 10 to 15 times. In other words, if the annual salary of workers is 50,000, then middle-level cadres can get up to 250,000. This kind of distribution plan is basically fixed. Everyone knows how much bonus they can get this year, how much money they can get after retirement, and so on. Workers have to share the fruits of their labor, such as determining holidays, medical security, maternity leave, school and housing subsidies, etc., there are system regulations. I think this is differentiated common prosperity.
After the introduction of this system, it has been implemented in November 2004, and it has been 12 years now. The benefits are very good. The annual growth rate is 30%, which is very fast. Up to now, Dawu Group has basically no loans, and its development is very good. There is very little corporate corruption. Especially cadres, why? Because if it is embezzled, the loss will be too great. For example, if you have been a director for six terms, you can enjoy a pension that is twice the average worker’s salary after retirement. If the average monthly salary of a worker at that time was 5,000, then you could get a monthly retirement fee of 10,000. The number of directors is three times, eight times is four times, and the highest is six times. Therefore, our cadres have a low rate of attrition, and they will not be corrupted because they have long-term working ideas. So now the Dawu Group is operating very smoothly, and there is very little corruption. What about the workers? Because power is given to the head of the subsidiary, the workers
2018-07-29 09:28 阅读(35)评论(0)
Private enterprise legal person crime is a false problem!
Category: Thoughts on the Great Noon Trip
2018-07-29 09:28 Reading(35)Comment(0)
The only crime is corporate legal person, especially private enterprise legal person crime, this is the sword of Damocles hanging on the head of private enterprise. Our legal person subject status is equal, and this principle must be upheld.
Regarding the criminal involvement of enterprises, the jurist Mr. Jiang Ping came over last time and invited Professor Zhao Xudong, who drafted the "General Principles of Civil Law" at the Renmin University of Political Science and Law. There was a dialogue between the three of us. In terms of legislation, I think there is a problem.
The crime of private enterprise legal person is a false problem. We stipulate in the civil law that the subject status of legal persons is equal. There are four types of legal persons, one is an agency legal person, the other is an enterprise legal person, the other is a social organization legal person, and there is also an enterprise legal person. The agency legal person refers to the government. Does the government commit crimes? Even if the leadership team is corrupt, and a new group of people is replaced, the government will still operate, and there will be no crimes as a legal person. Business corporations, our industrial and young women and universities, are these criminals? There is no social organization legal person either. The only crime is corporate legal person, especially private enterprise legal person crime, this is the sword of Damocles hanging on the head of private enterprise. Our legal person subject status is equal, and this principle must be upheld.
The crime of legal representative does not mean that it is a crime of a legal person. Why is the crime of the chairman of a private enterprise equivalent to the crime of a legal person? The legal person must be destroyed and your property confiscated and auctioned off. The problem of private enterprises is first of all a question of legislation. Without the status of a legal person, there is no legal person's property rights. We equate the status of a legal person and the property rights of a legal person to the personal property of the boss, and we have not rationalized this issue. Of course, from the perspective of practical operation, private enterprises often do not pay attention to cutting their own family property and corporate property. As long as it is registered, even if it is a sole proprietorship, the property is legal person property, not family property or personal property. Once registered as a limited liability company, that asset no longer belongs to an individual. To put it honestly, it is public property and should be subject to social supervision and legal restrictions. It is not equivalent to personal assets. It won't work.
The boundary between legal representative and legal rights is also vague and unclear. For example, there is a case, a kindergarten school bus accident, not to arrest the principal, but to arrest investors, this is a misunderstanding. Whoever is elected as the top leader is the legal representative. You must go to the Industrial and Commercial Bureau to change the legal representative, because you have the right to be elected, and the supply and marketing of human, property, and property are in your hands. I discovered this problem after I got out of prison. Now professional managers can be legal representatives. We are not sure about this aspect, and we are not at ease. Professional managers should have a high minimum guarantee limit, restrict administrative powers, and be reflected in the company's articles of association; the company's articles of association are for enterprises to follow the law and cannot sell the enterprise, but they have decision-making power and management power. Ford's AB share system in the United States, A shares can be bought by everyone, but there is no decision-making power. B shares are members of the Ford family and elect the chairman. As long as the family members have the right to vote. This is also a solution.
* In short, the survival of enterprises cannot be separated from historical or political forms, and the most important ones are conceptual issues.
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