Lawyer Yang: When considering listing, enterprises must also consider the management norms of enterprises, which is related to whether enterprises can go public smoothly. Many small and medium-sized enterprises, especially private enterprises, have irregular internal operations because of their small scale; Even some enterprises have many problems, including unclear property rights, chaotic management and opaque finance. It will take some time for these enterprises to truly establish a modern enterprise system. These problems are the key to whether an enterprise can go public, and they are also the most stressful problems for brokers. According to "Company Law" and "Rules for Examination of Stock Issuance and Listing of Start-up Enterprises" currently under discussion, the enterprises to be listed must first be reorganized to form a joint stock limited company. Enterprises without legal personality and limited liability companies shall first be restructured or changed into joint stock limited companies according to law, and must continue to operate under the same management for more than two years. Secondly, listed companies should carry out rectification in internal management, standardized operation and financial system.
Question 2: What is the infringement of business secrets of business operators? How should industrial enterprises protect their legitimate rights and interests and take precautions in the course of operation?
The risk of trade secrets being leaked by workers?
Lawyer Yang: First of all, we need to know what a trade secret is. Trade secrets refer to technical and commercial information that is unknown to the public, can bring economic benefits to the obligee, is practical and has been taken by the obligee. Information that may become business secrets of an enterprise includes (but is not limited to): design, procedure, product formula, manufacturing process, manufacturing method, management know-how, customer list, source information, production and marketing strategy, pre-tender price and bidding content in bidding, source code and object code of computer software, technical scheme to be patented, patented technical scheme that has been applied but not yet disclosed, etc.
Small and medium-sized enterprises should realize the legal significance of trade secret protection and take appropriate measures to protect trade secrets in time. Taking appropriate measures to protect business secrets can not only prevent the disclosure of business secrets in advance, but also be the key evidence for the judicial organs to judge whether the business secrets of enterprises can get legal relief when there is a trade secret infringement dispute. Only by taking appropriate security measures, can business information become the object of protection of trade secrets law. In view of this, on the one hand, small and medium-sized enterprises should pay attention to taking physical security measures for trade secrets, such as monitoring factories or production areas; Put the production process containing trade secrets in a confidential area; Identify special personnel to manage secret raw materials and molds; Establish a management responsibility system for confidential documents, a document borrowing system and a document copying system, and adopt reliable destruction methods for documents; Strengthen computer security measures, establish comprehensive and specific computer use records, encrypt data and software, use anti-virus software and hardware, and take special protection measures for computer external communication lines. On the other hand, it is also necessary to strengthen the management measures for personnel, such as strict management of resident, visiting and visiting activities of foreigners to prevent commercial espionage; Strengthen the encryption education for employees internally, limit the scope of knowledge, and reduce the possibility of employees' negligent disclosure and malicious sale of trade secrets. In view of the current situation that the flow of some secret-related personnel, especially scientific and technological personnel, has led to serious leakage of enterprise technology and business secrets, small and medium-sized enterprises can protect their intellectual property rights and business secrets by signing confidentiality contracts. For example, according to Article 22 of the Labor Law, such laws and regulations as "laborers keep business secrets of employers", we can sign intellectual property protection contracts with employees to keep business secrets, and bind enterprise employees and floating employees on the basis of the contracts.
Question 3: What legal rights and obligations do enterprises have when dealing with labor disputes with employees? What photos are there when recruiting and dismissing employees?
Customs law? What problems should we pay attention to?
Lawyer Yang: The laws and regulations to adjust the labor legal relationship mainly include the labor law and some supporting laws and regulations and judicial interpretations. When establishing or dissolving labor relations with employees, enterprises should pay attention to the following points: enterprises should sign labor contracts with employees in accordance with the provisions of the labor law, and clearly stipulate the rights and obligations of both parties in the contract; Employees who come into contact with the business secrets of the enterprise shall sign a confidentiality contract and clearly stipulate the confidentiality obligation; Enterprises should dismiss employees according to law, and pay attention to collecting and retaining evidence of employee violations; When an enterprise intends to dismiss its employees, it should try to dismiss them at the expiration of the contract to avoid paying economic compensation; For employees who may have a competitive relationship with the enterprise after leaving the company and have important business secrets, the enterprise may consider signing a non-competition contract with them, but appropriate compensation should be given.
Question 4: What is unfair competition? What kind of legal responsibilities should people who participate in unfair competition bear?
Lawyer Yang: Unfair competition refers to the behavior of an operator who violates the provisions of the Anti-Unfair Competition Law of People's Republic of China (PRC), damages the legitimate rights and interests of other operators and disrupts the social and economic order. There are many kinds of unfair competition behaviors, including: counterfeiting registered trademarks of others; Unauthorized use of the unique name, packaging and decoration of well-known goods, or the use of names, packaging and decoration similar to well-known goods, resulting in confusion with other well-known goods, so that buyers mistakenly think that they are well-known goods; Unauthorized use of another person's enterprise name or font size, causing people to mistake it for another person's goods; Forging or fraudulently using quality marks such as certification marks and brand-name marks on commodities, forging the place of origin, making misleading false representations about the quality of commodities, commercial slander, infringement of trade secrets, etc.
If an operator violates the provisions of the Anti-Unfair Competition Law of People's Republic of China (PRC) and causes damage to the infringed operator, he shall bear civil liabilities such as stopping the infringement, removing the obstruction, eliminating the influence, returning the property and compensating for the losses, and the state supervision and procuratorial departments may also impose administrative penalties on him. If the circumstances are serious, criminal responsibility may also be investigated.
Question 5: How should business operators use legal weapons to safeguard their legitimate rights and interests when they encounter administrative intervention from government departments in the process of legal operation?
Lawyer Yang: The government should administer according to law. If the government violates the law or the law enforcement does not conform to the legal procedures, the operator has the right to appeal to the government organ at the next higher level or apply for reconsideration, and may bring an administrative lawsuit to the people's court in accordance with the relevant provisions of the Administrative Procedure Law, requiring the administrative organ to correct the wrong behavior and compensate the operator for the economic losses caused by the wrong administrative behavior.
Question 6: At present, many industries and enterprises are doing foreign trade. What legal issues should business operators pay special attention to in the process of foreign trade?
Lawyer Yang: 1. If the letter of credit provided by the buyer does not conform to the contract, the seller shall ask the buyer to amend it in time. According to international practice, the seller has the right to ask the buyer to amend the letter of credit immediately after receiving the letter of credit that does not conform to the contract. If the buyer fails to amend or delay the letter of credit, it will constitute a breach of contract, and the seller has the right to terminate the contract and lodge a claim. On the other hand, if the seller fails to make a request to amend the letter of credit in time, it will be regarded as a breach of contract to amend the letter of credit.
2. Under the payment terms of documentary credit, CIF or CFR terms should be selected. If FOB clause is selected, it must be stipulated that the seller charters the ship on behalf of the buyer to book the shipping space. Otherwise, for the seller, the letter of credit is only useful if the buyer is willing to perform the contract. Because the buyer is responsible for chartering or booking space under FOB price conditions, the bill of lading is a document that must be submitted. If the buyer hadn't sent the ship at that time, he wouldn't have been able to get the documents, and he couldn't negotiate the payment without the documents.
3. When the buyer proposes to terminate the contract, according to the provisions of Article 1 19 of the Contract Law and Articles 77 and 88 of the United Nations Convention on Contracts for the International Sale of Goods, the seller must take timely measures within a reasonable period of time, or resell or ship the goods back to reduce the loss, otherwise he has no right to claim the expanded loss.
Fourth, the seller should be alert to the buyer's fraud by using the soft clauses in the letter of credit, changing the bank credit guaranteed by the bank into commercial credit, and increasing the risks borne by the seller. Such as: FOB for price conditions; Insert a trust receipt clause in the letter of credit, allowing the importer to pick up the goods by draft first, and after passing the inspection, the importer will submit the inspection certificate to the bank for payment; The contents of the letter of credit are contradictory, such as prohibiting partial shipment and stipulating the delivery time of each batch; Importers must accept bills of exchange and so on.
Five, the buyer should pay attention to the validity of the claim, to prevent foreign investors from putting forward unreasonable opinions on the validity of the claim, so as to cover up the quality problems of the goods. Otherwise, no matter how well the quality clause of the contract is set, the validity period of the claim is unreasonable, and the quality clause will become empty talk.
6. Once the buyer finds that one or more goods delivered by the seller are defective or the seller doesn't want to perform the contract at all, which constitutes a serious breach of contract, the buyer has the right to terminate the contract and apply to the court for a stop payment order by invoking the principle of "fraud exception" to prohibit the seller from continuing to obtain payment under the letter of credit.
7. The time limit for bringing a lawsuit or arbitrating a dispute over a contract for the international sale of goods is four years, counting from the day when the parties know or should know that their rights have been infringed.
8. As the shipper or consignee, we should use the "delay again" clause carefully in the transport contract. This clause means that once the ship is stranded at the loading port or the unloading port, demurrage will be calculated cumulatively except for reasonable use time, and force majeure and unforeseeable external reasons will not be ruled out. This clause is one of the maritime transport practices beneficial to shipowners or carriers, but quite unfavorable to shippers or carriers.
Question 7: How should industrial enterprises protect the intellectual property rights of their products from infringement during their business operations?
Lawyer Yang: The scope of intellectual property rights is relatively wide. In addition to patents (invention patents, utility model patents, design patents), trademarks and copyrights, it also includes trade secrets, new plant varieties, commodity names, marks of origin and supply marks, and so on.
To protect their intellectual property rights from infringement, business operators must first prevent them. Such as trade secrets, strict confidentiality measures should be taken; For new technologies and designs, you should apply for patents as soon as possible; Copyright, especially computer software, should be copyright registration; Trademarks used shall be registered, and defensive trade mark or joint trademarks may be registered when necessary. On the other hand, when encountering infringement, we should take active measures to protect rights. We can apply to the administrative department to punish the infringer, or file a civil lawsuit with the court to stop the infringement and compensate for the losses. We can flexibly use legal measures such as pre-litigation injunction, pre-litigation property preservation and pre-litigation evidence preservation.
Question 8: Under the existing market competition mechanism, why do industry enterprises need to hire long-term legal counsel?
Lawyer Yang: Under the market competition mechanism, the market is unpredictable, and enterprises are facing operational risks everywhere. Enterprises should not only guard against the risks of the market itself, but also guard against legal risks. The most fundamental purpose for enterprises to hire perennial legal counsel is to prevent disputes. The role of perennial legal counsel, specifically, from a big perspective, perennial legal counsel can make legal argumentation on the feasibility, risk prediction and countermeasures of major decisions in enterprise production and operation management, provide legal basis, provide legal advice for the steady development of enterprises, share the operational pressure of enterprise decision makers and reduce the legal risks of enterprises; Analyze the advantages and disadvantages of various policies, regulations and legal environment for enterprises, strengthen enterprise managers' understanding of the development situation of national policies and regulations, so as to formulate future business plans, avoid the randomness and blindness of decision-making, ensure the scientificity and feasibility of management decisions, and achieve results. From a small point of view, perennial legal counsel can help improve the relevant legal documents of enterprises, formulate rules and regulations, establish file management, supervise the operation of various departments according to law, and standardize the organization and behavior of enterprises; Assist in managing all kinds of contracts, determine contract categories, review the legality, feasibility and rigor of contracts, and reduce unnecessary economic losses; Assist enterprises to supervise the performance of contracts and agreements, improve the performance rate and increase economic benefits; Provide legal advice to enterprises when they encounter civil, economic, criminal or administrative disputes, litigation and arbitration matters.