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  1. 2010年第09期 09 2010 Newsletter 江苏锦程律师事务所King’s Wisdom Law Office

  2. 目 录 ◆本刊特稿 * 劳动者追索加班费需承担举证责任 * “严重失职”与“严重违反规章制度”的区别 ◆案例分析 * 解除劳动合同是否需企业批准? * 如何认定和处理劳动者不能胜任工作? ◆实务问答 1.商标侵权赔偿数额如何确定? 2.注册商标有效期为几年?到期后如何续费? 3.劳动者支付违约金的范围有哪些? 4.医疗期的期限如何计算? 5.《劳动手册》应由单位保管还是个人保管? 6.计件制如何折算未休的年休假报酬? ◆新法速递 *《海关事务担保条例》出台 * 国务院发文促进企业兼并重组 * 国税局明确融资性售后回租业务中承租方出售资 产行为有关税收问题 *国税总局出台中新税收协定条文解释 CATALOGUE ◆Special Manuscript * Employees should Assume Burden of Proof while Claiming Overtime Payment *Differences between Serious Dereliction of Duty and Materially Breaching Rules and Regulations ◆Analysis of Case * Should Termination of Employment Contract be Approved by Enterprise? *How to Determine and Deal with the Fact that an Employee is Incompetent? ◆ Practice of Labor Laws 1. How to Determine the Amount of Compensation related to Trademark Infringement? 2. How long will be Effective Term of Registered Trademark? How to Continue to Pay Dues after Expiration? 3. What is the Scope of Liquidated Damages Borne by Employees? 4. How to Calculate the Term of Medical Period? 5. Should Employment Handbook be Kept by Employer or by Employee? 6.How to Calculate the Wage for the Annual Leave Due and Not Taken Implementing Piece Wage System? ◆New Laws and Regulations Express * Regulation on Customs Affair Guarantee has been Promulgated * State Council Issues Document to Promote Corporate Merger and Restructuring * SAT Stipulates the Tax Issues Concerning the Sale of Assets by the Lessees to the Financing Sale Leaseback *SAT Released the Interpretations to the Sino-Singapore Agreement

  3. 刊 特 稿 Special Manuscript 劳动者追索加班费需承担举证责任Employees should Assume Burden of Proof while Claiming Overtime Payment 审理劳动争议案件适用法律若干问题的解释(三)出台 Interpretation (III) of the Supreme People’s Court of Several Issues on the Application of Law in the Trial of Labor Dispute Cases has been Promulgated • 最高人民法院近日出台司法解释,规定劳动者主张加班费的,应当就加班事实的存在承担举证责任,但劳动者有证据证明用人单位掌握管理加班事实存在的证据,用人单位不提供的,由用人单位承担不利后果。 Recently the Supreme People’s Court has promulgated new judicial interpretation to stipulate that in case an employee claims overtime payment, he/she should assume burden of proof to prove the existence of overtime work; however if the employee can submit evidences to prove the evidences used to prove the existence of overtime work have been grasped by the employer, the employer should assume adverse results once the employer refuses to submit relevant evidences. • 司法解释(三)还界定了劳动争议案件的受案范围: Meanwhile Judicial Interpretation (III) also define the scope of accepting labor dispute case: King’s Wisdom Law Office www.kwlawyers.com.cn

  4. 刊 特 稿 Special Manuscript • 1、对社会保险引发的劳动争议作出规定:对于因用人单位没有为劳动者办理社会 保险手续,且社会保险经办机构不能补办导致劳动者不能享受社会保险待遇,要求用 人单位赔偿损失的,人民法院应依法受理。 Regulation on labor dispute caused by social insurance: in case an employer does not conduct social insurance procedure for an employee and the handling institution of social insurance also cannot make up social insurance procedure for an employee causing an employee cannot enjoy social insurance treatment, once an employee claims the employer paying compensation, People’s Court should accept this kind of case. • 2、用人单位未按照劳动合同的约定或者国家规定及时足额支付劳动者报酬、低于 当地最低工资标准支付劳动者工资、安排加班不支付加班费、解除或者终止劳动合同 未依照规定向劳动者支付经济补偿的,应当向劳动者加付赔偿金。加付赔偿金案件人 民法院应当受理。 In case an employer does not pay an employee wages in time and on full pursuant to employment contract or national regulations or the wage paid by an employer is lower than local minimum wage standard or an employer does not pay overtime payment or an employer does not pay economical compensation to an employee after termination of or end of employment contract, an employer should pay extra compensation to an employee. This kind of case should be accepted by People’s Court. • 3、用人单位与其招用的已经依法享受养老保险待遇或领取退休金的人员发生用工 争议,向法院提起诉讼的,法院应当按劳务关系处理。 If there is dispute between an employer and a hire person who has enjoyed endowment insurance treatment or drawn a pension, People’s Court should treat this kind of case as civil employment relationship dispute. King’s Wisdom Law Office www.kwlawyers.com.cn

  5. 刊 特 稿 Special Manuscript “严重失职”与“严重违反规章制度”的区别Differences between Serious Dereliction of Duty and Materially Breaching Rules and Regulations “严重失职”与“严重违反规章制度”是一对相似的概念,二者均属于用人单位单方解除劳动合同的法定情形。但是,“严重失职”与“严重违反规章制度”也有着明确的界限,不能混同。 The concept of Serious Dereliction of Duty is similar with the concept of Materially Breaching Rules and Regulations and both of them are legal situations used by an employer to terminate employment contract unilaterally. However there are also some differences between Serious Dereliction of Duty and Materially Breaching Rules and Regulations. • 一、“严重失职”Serious Dereliction of Duty 案例:孙某系某公司员工,从事球面抛光工作,2009年孙某在进行抛光时,由于操作不慎,导致部分球面出现瑕疵,给公司造成直接经济损失达两千元。公司认为孙某的行为已经构成严重失职,因此决定解除与孙某的劳动关系。孙某不服,双方遂发生争议。另查,该公司并未制定书面的岗位职责说明。 Case: Sun was Company A’s employee and engaged in sphere polishing. In 2009 when Sun did the polishing, part of sphere had defects due to careless manipulation and caused Company A suffering direct economic losses amounting RMB 2,000. Company A considered Sun to commit serious dereliction of duty and terminated Sun’s employment relationship. However Sun did not agreed with Company A’s decision. Furthermore Company A did not formulate written position statement. King’s Wisdom Law Office www.kwlawyers.com.cn

  6. 刊 特 稿 Special Manuscript 《劳动合同法》明确规定,劳动者严重失职,营私舞弊,给用人单位造成重大损害的,用人单位可以解除劳动合同。按照法律规定,“严重失职”需同时满足三个要件: Employment Contract Law clearly stipulates that if an employee commits serious dereliction of duty or practice graft, causing substantial damage to an employer, an employer is entitled to terminate employment contract. According to law, Serious Dereliction of Duty should meet three conditions at the same time: 第一,劳动者需有“失职”行为。所谓“失职”行为是指劳动者对本职工作不认真负责,未依照规定履行自己的职务。当然,用人单位应当首先制定相应的岗位职责,方能认定劳动者存在失职行为。 Firstly, an employee should have dereliction of duty. Dereliction of Duty means an employee is not serious to his/her job and does not perform his/her responsibilities according to relevant regulations. Certainly an employer should formulate relevant position statement at first and then can determine whether an employee has dereliction of duty or not. 第二,“失职”行为应当达到严重的程度。劳动者的“失职”行为在程度上必须已经达到严重的情节,如果仅仅是一般的失职行为,则用人单位无权解除劳动合同。 Secondly, the level of dereliction of duty should reach serious level. So in case an employee’s dereliction of duty only is common dereliction of duty, an employer cannot terminate employment contract. 第三,“严重失职”行为需造成“重大损害”。对于严重失职的劳动者,还不能直接解除劳动合同,只有当其同时给单位造成重大损害,用人单位方可进行解雇处理。 Thirdly, substantial damage shall be caused by serious dereliction of duty. To those who have serious dereliction of duty, an employer cannot terminate employment contract directly. And only when the serious dereliction of duty causes an employer suffering substantial damage, an employer is entitled to fire an employee. King’s Wisdom Law Office www.kwlawyers.com.cn

  7. 刊 特 稿 Special Manuscript 对于“严重失职”,以上三个构成要件缺一不可,否则,用人单位则无权解除劳动关系.上述案例中,尽管孙某确实因工作过失导致公司损失属“失职”行为,然而,光电公司既无岗位职责规定、也无对“严重”和“重大损害”的界定,直接解除孙某的劳动合同有失妥当. Above three conditions all are indispensable, otherwise an employer cannot terminate labor relationship. In above case although Sun fault really caused Company A suffering losses, however there was no position statement of Company A and no definition on Serious and Substantial Damage, it was incorrect to terminate Sun’s employment contract directly. 二、“严重违反规章制度”Materially Breaching Rules and Regulations 案例:王某由于上班时与同事发生口角,下班后将该同事打伤。由于其行为并未构成刑事犯罪,最终仅被处以劳动教养。公司依据员工手册中规定,解除了与王某的劳动关系.而王某则坚持认为,自己并没有构成犯罪,单位无权解除劳动关系. Case: Wang hurt his workmate after work, so he sentenced reeducation through labor. Company B terminated Wang’s employment relationship according to Employment Handbook. However Wang insisted that his behavior could not be determined as crime, so Company B could not terminate employment relationship. 《劳动合同法》规定,劳动者严重违反用人单位的规章制度的,用人单位可以解除劳动合同. Employment Contract Law stipulates that if an employee materially breaches rules and regulations of an employer, an employer is entitled to terminate employment contract. 应当注意的是,“规章制度”的存在是“严重违反规章制度”的前提.对于这方面的规章制度因其性质上属于劳动纪律,因此,在制定时应当经过民主流程,并向员工进行公示或告知. We should pay attention to that the premise of Materially Breaching Rules and Regulations is the existence of rules and regulations. Rules and regulations belong to labor discipline, so when formulating rules and regulations, democratic procedure shall be implemented and rules and regulations should be made public or noticed to employees. King’s Wisdom Law Office www.kwlawyers.com.cn

  8. 刊 特 稿 Special Manuscript 上述案例中,涉及“被依法追究刑事责任”和“严重违反规章制度”两个概念。现行法律规定,劳动者“被依法追究刑事责任”的,用人单位也可以解除劳动合同。王某被处以劳动教养显然尚未构成刑事犯罪,但是公司的员工手册中将这种情形视为严重违反规章制度,所以服装公司可以“严重违反规章制度”为由依法解除与王某的劳动合同。 In above case, “being pursued criminal liability” and “materially breaching rules and regulations” have been referred to. According to current law, to those who are pursued criminal liability, an employer also can terminate their labor contract. Being sentenced reeducation through labor is not the same as being pursued criminal liability, however Company B’s employment handbook stipulated being sentenced reeducation through labor belonged to one of situations materially breaching rules and regulations, so it was legal for Company B to terminate Wang’s labor contract. • 三、二者的联系与区别Connection and Difference 从“严重失职”与“严重违反规章制度”的概念可以看出,二者既有相似之处,同时也存在着明显的区别。 From the concepts of Serious Dereliction of Duty and Materially Breaching Rules and Regulations, they both have connection and have difference. 就联系而言,“严重失职”与“严重违反规章制度”在情节上都已经达到了严重的程度,给用人单位造成了不良的影响;同时二者均属于法律规定的用人单位可以行使单位解除权的法定情形,这是法律赋予用人单位的权利。 In term of connection, both of them have reached serious level and made an employer suffer adverse result; meanwhile, both of them belong to legal situations used by an employer for terminating employment contract of an employee and this kind of right is granted by laws. King’s Wisdom Law Office www.kwlawyers.com.cn

  9. 刊 特 稿 Special Manuscript 二者也存在着诸多不同之处,主要体现在:首先,在主观过错方面,前者表现为过失,后者则表现为故意,劳动者的主观状态并不相同;其次,在客观方面,前者体现为未履行应尽的工作职责,后者则为违反用人单位的规章制度;再次,在解除条件上,前者不仅需达到严重的程度,而且还要给单位造成重大损害,而后者只需达到严重的程度即可。 There are many differences between them and the differences mainly reflect as follows: firstly, in aspect of subjective fault, the former is negligence and the latter is deliberate, so the subjective status of employee is different; secondly, in aspect of objective, the former is not performing work responsibilities and the latter is violating an employer’s rules and regulations and finally, the former not only should reach serious level, but also should make an employer suffer substantial damage but the latter only should reach serious level. 由此可见,二者是完全不同的两种行为,在实体认定和操作程序上有着严格的区别,如果对二者不能进行明确的区分,势必将导致操作上的混乱,并引起不必要的法律风险。 From this, it can be seen that Serious Dereliction of Duty is completely different from Materially Breaching Rules and Regulations and there are obvious difference between substance determination and operation procedure. If both of them cannot be identified clearly, disordered operation and unnecessary legal risk will be caused. King’s Wisdom Law Office www.kwlawyers.com.cn

  10. 例 分 析 Case Analysis 解除劳动合同是否需企业批准?Should Termination of Employment Contract be Approved by Enterprise? • 案情简介:Details of Case 张某与某企业签订了2008年7月1日至2010年6月30日2年期的劳动合同。双方在合同中约定每月工资为2000元,并约定,如果职工提出解除合同,未经单位批准,单位有权要求职工支付违约金。 Zhang had concluded an employment contract with Company C whose term was from July 1, 2008 to June 30, 2010. Meanwhile, both of them agreed that Zhang’s wage was RMB 2,000 per month and if Zhang required terminating employment contract, Company C was entitled to claim liquidated damages to Zhang without Company C’s approval. 2009年11月1日,张某书面向企业递交解除合同通知书。30天后企业人事部门没有同意,未为张某办理退工手续。张某几次要求未果,就离开了企业。于是,企业向劳动仲裁部门申请劳动仲裁,要求张某支付违约金。 Nov 1, 2009, Zhang submitted written notice to Company C to terminate his employment contract. However Company C’s personnel ministry did not agree Zhang’s requirement after 30 days and not conduct relevant procedure for Zhang. Finally Zhang had to leave Company C without Company C’s approval. So Company C applied to labor arbitration department for labor arbitration and claimed liquidated damages to Zhang. King’s Wisdom Law Office www.kwlawyers.com.cn

  11. 例 分 析 Case Analysis • 仲裁裁决Award of Arbitration 仲裁委员会经过开庭审理后认为,张某依法提前30日以书面形式向企业提出解除劳动合同,企业以其未征得企业批准而擅自解除劳动合同为由,要求张某支付违约金的请求缺乏法律依据。仲裁委员会对企业要求张某支付违约金的请求不予支持。 After courting hearing, Arbitration Commission considered that Zhang had given Company C a 30 days’prior written notice to require terminating employment contract, so Company C claiming Zhang to pay liquidated damages for not acquiring Company C’s approval could not be supported by law. Finally Arbitration Commission refused Company C’s claims. • 案件评析Analysis of Case 本案争议的焦点是劳动者提前30日以书面形式向用人单位提出解除劳动合同,是否需要得到用人单位批准?双方在合同中约定的条款是否有效? The dispute focus of this case is that in case an employee gives an employer a 30 days’ prior written notice to require terminating employment contract, if an employee should acquire an employer’s approval at first? And is the clause agreed by both parties in employment contract effective? King’s Wisdom Law Office www.kwlawyers.com.cn

  12. 例 分 析 Case Analysis 根据《劳动合同法》第三十七条规定:“劳动者提前三十日以书面形式通知用人单位,可以解除劳动合同。 According to Article 37 of Employment Contract Law, an employee may terminate his employment contract upon 30 days’ prior written notice to his employer. 本案的张某递交了书面通知后,继续在该单位工作满30天后再离开企业的行为与法不悖。企业以张某未经用人单位批准擅自解除劳动合同为由,要求其支付违约金缺乏法律依据。另外,双方在合同中约定的条款与法律相悖,对张某无约束力。所以,仲裁委员会经过审理后,没有支持企业的仲裁请求。 In this case, Zhang still worked in Company C for 30 days after submitting written notice, so his behavior was legal. Company C’s claim that requires Zhang paying liquidated damages due to without Company C’s approval was lack of legal ground. Besides, the relevant clause of employment contract did not comply with law, so it should not be binding on Zhang. Therefore after courting hearing, Arbitration Commission did not support Company C’s claims. King’s Wisdom Law Office www.kwlawyers.com.cn

  13. 例 分 析 Case Analysis 如何认定和处理劳动者不能胜任工作How to Determine and Deal with the Fact that an Employee is Incompetent? • 案情简介Details of Case 老杨是某销售团队负责人,虽然他勤勉工作,个人业绩指标都完成了,但他所在团队的工作业绩始终不理想,最近接连三个月都没有完成公司下达的指标。老板找老杨谈话,老杨认为最近市场状况不好,其已经尽力了。老板准备用不胜任工作和老杨解除劳动合同。 Yang was the leader of a sales team. Although he always could reach personal performance index, however his sales team had not reached the performance index for three months. Yang’s boss discussed with Yang and Yang told his boss that he had tried his best and finally Yang’s boss terminated Yang’s employment contract for incompetent. • 焦点问题 Focus of Case: 1、如何理解“不能胜任工作”? how to understand Incompetent? 2、用人单位怎样界定员工“不能胜任工作”? how to determine whether is incompetent or not? King’s Wisdom Law Office www.kwlawyers.com.cn

  14. 例 分 析 Case Analysis 劳动部 《关于<劳动法>若干条文的说明》中对 “不能胜任工作”表述为:“不能按要求完成劳动合同中约定的任务或者同工种,同岗位人员的工作量。用人单位不得故意提高定额标准,使劳动者无法完成。” Incompetent has been stipulated by the Explanations on Several Provisions of Labor Law issued by Labor Ministry and it means an employee cannot complete the labor task stipulated by employment contract or the workload of employee who works in the same work position. An employer should not improve the standard deliberately to make an employee not complete. “不能胜任工作”在企业管理中需要有一个关键因素——考核制度来认定,考核制度需要同时满足三个条件,一是用工双方明确岗位职责,二是管理方履行告知义务,让员工知晓公司的考核制度以及考核方式,三是公司对员工考核的核心是围绕其岗位职责进行的。 During the procedure of management, a key factor that evaluation system is needed to determine whether Incompetent or not. The evaluation system should meet the following three conditions at the same time: (a) clarifying job description; (b) an employer should perform the obligation to notify an employee company’s evaluation system and evaluation method; and (c) the core of evaluation should be done according to job description. King’s Wisdom Law Office www.kwlawyers.com.cn

  15. 例 分 析 Case Analysis • “不能胜任工作”解除劳动合同需要履行哪些程序? Which procedures should be done when terminating employment contract for Incompetent? 《劳动合同法》规定:劳动者不能胜任工作,经过培训或者调整工作岗位,仍不能胜任工作的,用人单位应提前三十日以书面形式通知劳动者本人或者额外支付劳动者一个月工资后,可以解除劳动合同。从规定中可以清楚的看到,企业要用不能胜任工作解除劳动者劳动合同的,必须履行培训或者调整工作岗位的工作程序,否则的话,将被视作违法解除。 According to Employment Contract Law, an employer may terminate an employment contract by giving the employee himself 30 days’ prior written notice, or one month’s wage in lieu of notice, if the employee is incompetent and remains incompetent after training or adjustment of his position. Therefore in case an employer intends to terminate one of employees’ employment contract, it should do the procedure of training or adjustment of the employee’s position firstly, otherwise it will be deemed as illegal. King’s Wisdom Law Office www.kwlawyers.com.cn

  16. 务 问 答 Practice of Labor Laws 1、商标侵权赔偿数额如何确定?How to Determine the Amount of Compensation related to Trademark Infringement? 根据《商标法》规定,侵犯商标专用权的赔偿数额,为侵权人在侵权期间因侵权所获得的利益,或者被侵权人在被侵权期间因被侵权所受到的损失,包括被侵权人为制止侵权行为所支付的合理开支。 According to Trademark Law of PRC, the amount of compensation for infringing upon the right to exclusive use of a trademark shall be the proceeds obtained from the infringement during the period of infringement, or the losses suffered by the infringed due to the infringement during the period of being infringed, including the reasonable expenses paid by the infringed to stop the infringing acts. 前款所称侵权人因侵权所得利益,或者被侵权人因被侵权所受损失难以确定的,由人民法院根据侵权行为的情节判决给予五十万元以下的赔偿。 If it is difficult to determine the proceeds obtained from the infringement referred to in the preceding paragraph, or it is difficult to determine the losses suffered by the infringed due to the infringement, the people's court shall determine a compensation of 500,000 Yuan or below according to the circumstances of the infringing acts. King’s Wisdom Law Office www.kwlawyers.com.cn

  17. 务 问 答 Practice of Labor Laws 2、注册商标有效期为几年?到期后如何续费?How long will be Effective Term of Registered Trademark? How to Continue to Pay Dues after Expiration? • 根据我国《商标法》的规定,我国注册商标的有效期为10年。注册商有效期满,需要继续使用的,应当在期满前6个月内申请续展注册;在此期间未能提出申请的,可以给予6个月的宽展期。宽展期仍未提出申请的,注销其注册商标。每次续展注册的有效期为10年。 • According to Trademark Law of PRC, the period of validity of a registered trademark shall be ten years, counted from the day the registration is approved. If a registrant needs to continue to use the registered trademark after the period of validity expires, an application for renewal of registration shall be made within six months before the expiration. If the registrant fails to make such an application within that period, an extension period of six months may be granted. If no application has been filed before the extension period expires, the registered trademark shall be cancelled. The period of validity for each renewal of registration shall be ten years. King’s Wisdom Law Office www.kwlawyers.com.cn

  18. 务 问 答 Practice of Labor Laws 4、医疗期的期限如何计算?How to Calculate the Term of Medical Period? 3、劳动者支付违约金的范围有哪些?What is the Scope of Liquidated Damages Borne by Employees? • 根据医疗期相关政策规定,医疗期按劳动者在本用人单位的工作年限设置。劳动者最短享有3个月的医疗期,最长享有24个医疗期。 • According to relevant policies on medical period, the term of medical period shall be confirmed in accordance with an employee’s total working year in an employer. An employee can enjoy 3 months’ medical period at least and 24 months’ medical period at most. • 根据《劳动合同法》的有关规定,除劳动者违反服务期或竞业限制约定的,应当按照约定向用人单位支付违约金外,用人单位不得与劳动者约定由劳动者承担违约金。 • According to Employment Contract Law, an employer may not stipulate with an employee provisions on the bearing of liquidated damages by the employee except that the employee breaches service period provision or competition restriction provision. King’s Wisdom Law Office www.kwlawyers.com.cn

  19. 务 问 答 Practice of Labor Laws 6、计件制如何折算未休的年休假报酬? How to Calculate the Wage for the Annual Leave Due and Not Taken Implementing Piece Wage System? • 根据年休假政策的有关规定,对职工本年度内应休未休的年休假天数,单位应当按照该职工日工资收入的300%支付年休假工资报酬,其中包含用人单位支付职工正常工作期间的工资收入。 • According to relevant policies on annual leave, where an employer does not give annual leave to an employee or gives him days of annual leave less than the days of annual leave due upon the consent of the employee, it shall pay the employee 300% of his daily wage income for each day of the annual leave due and not taken in the year, which includes the wage income to be paid by the employer to the employee per day in normal working days. 5、《劳动手册》应由单位保管还是个人保管?Should Employment Handbook be Kept by Employer or by Employee? • 根据本市就业的有关规定,《劳动手册》在劳动者失业期间由本人保管,在劳动者从事全工时制工作期间由用人单位保管。 • According to relevant regulations of Wuxi on employment, Employment Handbook should be kept by employee while an employee loses his/her job and kept by employer while an employee works in an employer. King’s Wisdom Law Office www.kwlawyers.com.cn

  20. 法 速 递 New Laws and Regulations Express 《海关事务担保条例》出台Regulation on Customs Affair Guarantee has been Promulgated 国务院公布了《中华人民共和国海关事务担保条例》(《条例》),自2011年1月1日起施行。 State Council has promulgated Regulation on Customs Service Guarantee of PRC (hereinafter referred to as “Regulation”) and Regulations will be implemented from Jan 1, 2011. 为了使当事人获得快速通关、办理特定海关业务以及免于扣留财产等便利,《条例》主要规定了三种情形下的海关事务担保:一是申请提前放行货物的担保;二是当事人申请办理特定海关业务的担保;三是海关行政管理过程中的担保。 In order to make person enjoy relevant convenient related to prompt cleared by customs, conducting special customs business and free of detained property. Regulation mainly stipulates three situations for customs affair guarantee: first is the guarantee for applying for discharging goods in advance, second is the guarantee for applying for conduct special customs business and third is the guarantee occurring during the process of customs administrative management. 《条例》规定,海关应当自收到当事人提交的材料之日起5个工作日内对作为担保物的财产、权利进行审核,并决定是否接受担保。 Regulation stipulates that customs should check the property and rights used as guarantee within 5 working days after receiving documents submitted by relevant person and determine whether accept the guarantee or not. King’s Wisdom Law Office www.kwlawyers.com.cn

  21. 法 速 递 New Laws and Regulations Express 国务院发文促进企业兼并重组State Council Issues Document to Promote Corporate Merger and Restructuring 国务院办公厅发布《国务院关于促进企业兼并重组的意见》指出,消除企业兼并重组的制度障碍,放宽民营资本的市场准入。 《意见》提出,要认真清理废止各种不利于企业兼并重组和妨碍公平竞争的规定,尤其要坚决取消各地自行出台的限制外地企业对本地企业实施兼并重组的规定。 根据《意见》,我国将鼓励民营资本通过兼并重组等方式进入垄断行业的竞争性业务领域,支持民营资本进入基础设施、公共事业、金融服务和社会事业相关领域。 The General Office of the State Council, China's cabinet, has released the Opinions of the State Council on Promoting Corporate Merger and Restructuring (the Opinions), which point out that the institutional barriers hindering corporate merger and restructuring of Chinese enterprises must be removed and market access for non-governmental capital be eased. The Opinions propose that all departments concerned must repeal or abolish provisions that constrain enterprise merger and restructuring and impede fair competition; especially, governmental authorities concerned must resolutely abolish all local provisions that bar non-local enterprises from merging and reorganizing local enterprises. According to the Opinions, China will encourage non-governmental capital to enter competitive business areas within monopoly industries by such means as merger and restructuring, support non-governmental capital enter such spheres as infrastructure, public services, financial service and social undertakings. King’s Wisdom Law Office www.kwlawyers.com.cn

  22. 法 速 递 New Laws and Regulations Express 国税局明确融资性售后回租业务中承租方出售资产行为有关税收问题SAT Stipulates the Tax Issues Concerning the Sale of Assets by the Lessees to the Financing Sale Leaseback 国家税务总局发布《关于融资性售后回租业务中承租方出售资产行为有关税收问题的公告》(公告),自2010年10月1日起施行。 公告明确,根据现行增值税和营业税有关规定,融资性售后回租业务中承租方出售资产的行为,不属于增值税和营业税征收范围,不征收增值税和营业税。 公告规定,根据现行企业所得税法及有关收入确定规定,融资性售后回租业务中,承租人出售资产的行为,不确认为销售收入,对融资性租赁的资产,仍按承租人出售前原账面价值作为计税基础计提折旧。 The State Administration of Taxation (SAT) has issued Announcement of the State Administration of Taxation on Tax Issues Concerning the Sale of Assets by the Lessees to the Financing Sale Leaseback (Announcement). Under the Announcement, in accordance with currently applicable provisions on value-added tax and business tax, the sale of assets by the lessee in the financing sale leaseback does not fall under the coverage of value-added tax or business tax and is therefore not subject to either value-added tax or business tax. The Announcement regulates that in accordance with the currently applicable enterprise income tax laws and provisions on the identification of enterprise income, income from sale by the lessee to the financing sale leaseback is not identified as sales income. Therefore, the assets in the financing lease will still be subject to depreciation on the basis of the tax base of the book value of such assets before the sale thereof by the lessee. King’s Wisdom Law Office www.kwlawyers.com.cn

  23. 法 速 递 New Laws and Regulations Express 国税总局出台中新税收协定条文解释SAT Released the Interpretations to the Sino-Singapore Agreement 国家税务总局制定了《中华人民共和国政府和新加坡共和国政府关于对所得避免双重征税和防止偷漏税的协定》及议定书条文解释(简称中新协定条文解释)。 中新协定条文解释明确,缔约国国内反避税法律法规不受协定的影响,这与协定防止逃避税的宗旨是相吻合的。但缔约国该类法律法规应充分考虑协定的相关规定,其导致的税收结果不应与协定的规定相冲突。 国税总局还明确,我国对外所签协定有关条款规定与中新协定条款规定内容一致的,中新协定条文解释规定同样适用于其他协定相同条款的解释及执行。 China's State Administration of Taxation (SAT) formulated the Agreement Entered into between the Government of the People's Republic of China and the Government of the Republic of Singapore to Prevent Double Taxation and Income Tax Evasion and Interpretations to articles of the Agreement (hereinafter referred to as the Interpretations to the Sino-Singapore Agreement). The Interpretations to the Sino-Singapore Agreement stipulated that the contracting states' laws and regulations of anti-tax evasion shall not be subject to influence of the Agreement. It is compliable with the purpose of preventing double taxation as stipulated by the Agreement. However, the contracting states shall fully understand the relevant provisions of the Agreement when formulated such laws and regulations, so as to prevent any conflict between the taxation results of such laws and regulations and provisions of the Agreement. The SAT also stipulated that the relevant clauses which China has concluded with foreign countries keep consistent with provisions of the Sino-Singapore Agreement. The Interpretations to the Sino-Singapore Agreement shall also be applicable to interpretations and implementation of the same clauses of other agreements. King’s Wisdom Law Office www.kwlawyers.com.cn

  24. 法 速 递 New Laws and Regulations Express • 外汇局对境内企业存放境外资金总量实行规模管理;简化进出口核销、联网核查等业务操作,实行企业和银行事后报告制度;对境外账户收支实施非现场监测,对异常情况实施现场核查。 Foreign exchange bureau will carry out scale management to the total amount deposited outside borders, simplify the operation of export and import writing-off and on-line inspection, implement the system of reporting after fact to enterprise and bank and conduct off-site supervision to the bank account outside borders and field monitoring to abnormal situation. • 境内企业可以根据自身经营需要将存放境外资金调回境内经常项目外汇账户或关闭境外账户,并应当保留与境外账户收支相关的交易合同、凭证等文件资料五年备查。 The enterprise inside borders can shunt the funds deposited outside borders back to the regular foreign exchange bank account inside borders or close the bank account outside borders according to its business situation and should keep the contracts, receipts related to the bank account outside borders for 5 years for future reference. • 具有对外贸易经营权的个人与保税监管区域内企业不适用该办法。 The Measures should not be applied to the person who is entitled to be engaged in foreign trade and the enterprise in tariff-free zone. King’s Wisdom Law Office www.kwlawyers.com.cn

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