The core content: at present many enterprises have set up a special legal counsel, to fulfill the unified audit management contract and contract management. The? Enterprise contract auditors in the end of the how to audit and management contract?? the author according to itself in the experience of legal counsel and legal disputes, the contract review and management mainly from the following several aspects begin:
First, enterprises should set up a contract management department, unified centralized audit and management departments, the lambda management mode.
The signing of enterprise contract and performance, are responsible for the supervision and inspection and guidance duties. The specific operation, the contract implementation of classification and the segmenting management, the business sector (mainly supply and marketing, infrastructure, technological transformation, etc.) and the lambda (mainly sub company, overseas institutions) as a single secondary contract management lambda, responsible for the Department, the single lambda contract signing and fulfillment and legal adviser from the Department to regularly report the implementation of the contract. To make the unification of contract management mode of operation, it must be to establish a sound internal rules and regulations, the management work of rule-based. The main content of the contract management system should include: centralized management of contract, contract credit survey, signing, approval, sign, review, registration, filing, commissioned by the way, the model text of the contract management, contract seal management, contract performance and correct processing, with regular statistics and check at the same time, contract management, personnel training, contract management and punishment and linked to assessment. Enterprises through the establishment of contract management system, make the management level clear, clear responsibilities, standardized procedures, so as to make the contract, treatment evaluation, disputes are under effective control. In the unified contract management mode, pay attention to the following important:
First, to keep enterprise's cachet or contract. According to the provisions of China's current use of corporate seal and contract chapter, corporate seal and legal chapter contract legal effect. In other words, the official seal of the enterprise means the enterprise's signature. In the contract, even? Enterprise legal representative or authorized person signature, as long as the cover on the seal or contract seal can also be considered to, the enterprise has been approved by the relevant clauses of the contract, the contract of the enterprise have the force of law. Of course, if employees secretly use the seal for their own interests, the enterprise shall assume no liability. "The Supreme People's court civil guarantee enterprise on enterprise employees by using the single lambda for yourself whether the implementation of the seal shall be liable guarantee letter" (September 8, 1992 1992 Letter No. 113) have provisions. But it is worth noting that the use of behavior to the definition of the private enterprise workers, this burden of obligation, it is very difficult in fact is the.
Second, the signing of the management and control of enterprise employee contract authorization. Almost all of the enterprises will have the problem, due to all kinds of information of market economy changing, many opportunities fleeting. Therefore, the enterprise may not will all contract are concentrated in one's business, which will produce power granted and power control of contradictions, how to balance the contradictions, the management mechanism of enterprises, not a legal problem. Here is how to control and restrain the workers signed a contract authority, in order to avoid the apparent agency, to avoid the passive situation of enterprises. In actual operation, the enterprise is often to those overseas sales representative or overseas sales branch in advance to the amount of the covered with the official seal of the enterprise blank letter of introduction or stamped with the official seal of the enterprise of the format of the contract, to facilitate the appropriate when signing the contract. This is the enterprise an authorization behavior, but it is not perfect. Because enterprises in the authorization, the exercise of power limit and to the public, it will be very easy to produce unauthorized agency or apparent agency behavior. Therefore, the author suggests, enterprises should in blank letter clearly stipulates the sales representative or the company can sign the maximum amount of the contract, and the sales representative or the company has the right to sign an independent contract period of time. This can effectively prevent unauthorized agency or table of agency behavior. After their duty to stop or lambda gang adjustment, must ensure that originally prior to his blank letter of introduction, accredit a power of attorney and blank cover in the format of the official seal of the enterprise contract timely paid, also be sure to notice the fastest speed and he has business relationship with customers.
Third, the company is mainly responsible for the fire prevention. If the dismissal of enterprise person in charge, for example, general manager, firing at the same time in the Y body of the public announcement, and should be clear and timely inform the main or important economic relationships with customers and enterprises, in order to prevent apparent disposition.
Second, the contract classification, to do the key audit and management of important contract
In general, enterprises in the major contract mainly has: cooperative development contract, enterprise merger and acquisition (M & A) contract, the joint venture contract, exclusive agency agreement, significant technology improvement and technology import contracts, to guarantee the contracts, real estate development and transaction contract, an enormous amount of purchase and sales contracts. Due to the contract relates to the enterprise's important economic interests, to the enterprise development has a crucial impact. Therefore, in the process of signing the contract, be sure to pick out the contract, do as the focus of the contract review and management object, from the contract demonstration of the project, each other when business credit investigation, contract negotiation, text drafting, revising, signing, implementation or modification or cancellation, handle disputes, should have a legal adviser from the Department of key personnel to participate in, strict management and control, to prevent the occurrence of contract disputes, the effective maintenance of the legitimate rights and interests of enterprises.
Third, the main content of the contract audit
The contents of the contract is abundant, the terms of the contract can be from several to hundreds or even thousands of. Therefore, the audit of any contract, should accomplish have a definite object in view, the main content and the important terms for main audit. The main contents of the contract, according to the provisions of the contract law, mainly including: title or name and domicile of the parties; to perform a contract the subject matter; quantity of objects; the quality of the subject matter; target price or need to pay compensation; performance period, the place of implementation and performance; gamma about responsibility; dispute resolution method. I think that the important audit content mainly includes the following aspects:
One of the parties to the contract, identity and qualification examination. This is the first to confirm the contract audit issues, but also to prevent the contract fraud the most effective preventive measures. As the prerequisites for the validity of the contract is directly related to the identity and qualification after the signing of the contract can be really fulfilled.
First of all, we should ask each other to produce a business license, my attorney and my ID card. Review to enterprise production qualification. For example, real estate projects, a party must have a qualified real estate; special mechanical and electrical equipment production, need special mechanical and electrical equipment production license; if it is drugs, you need to corresponding national drug production licenses. Otherwise, even if the contracts were signed is often ineffective.
Secondly, if it is a major contract, the enterprise prior to the signing of the contract should be sent the relevant personnel to go to the other place of review, investigation group of personnel shall be enterprises senior managers and executives responsible for + professional and technical personnel and law persons + financial personnel in the combined group into. This review is not only on the surface of the enterprises to visit each other, but to deal with each other to provide various types of licenses, certificates, qualification certificates, licenses and financial statements to careful scrutiny.
Of enterprise itself review at the same time, should also went to court to investigate and verify whether the enterprise the existence of litigation cases, to industrial and commercial administration bureau investigation and verification of the company's annual registration and annual reward and punishment, to land administration departments and the housing administration departments for investigation verify the enterprise whether there is a real estate mortgage guarantee, to the tax bureau of investigation and verification of the enterprise whether there is a delay in payment of the taxes and fees or whether there are taxes and fees? Timely turn over to the higher authorities, to environmental protection bureau to investigate and verify whether there serious pollution of the environment behavior. To verify the above aspects of the field survey information is open, therefore, the enterprise as long as a little serious, it is not difficult to conduct on-site examination, but for business bank account query is not easy.
Of course, the investigation and verification of the above aspects, because the contents of the contract focus is also different. For example, if the cooperative development projects, it is necessary to investigate the situation? Pay taxes; if the introduction of the production line, the environmental restrictions? An investigation of the production line must be detailed. If the cooperative development of real estate projects, the real estate project? The land examination and approval formalities are investigating whether Qi Quanhe had set up the mortgage guarantee will be as detailed as possible.
Two, the subject matter of the contract in accordance with the national standard (product quality, health and epidemic prevention review). This review is mainly to help enterprises understand a surface on the other side of the quality of products. The enterprise should not only trust each other to provide various types of licenses and certificates, and should be based on the relevant documents provided by the other party, be the actual audit by telephone consultation, remote examination or investigation commission.
Three, the price paid review
The price of how effective the agreement, will directly affect the performance of the contract the other attitude, is directly related to whether the contract will be performed smoothly. Product sale, review whether there are other punctual and regular payment of the contract payment ability, should avoid to supply products collection situation, in particular, should pay attention to avoid the "goods to pay such a stupid mistake. The products bought by parties, shall be required to pay the price should be matched with the time of supply and supply of products should be, as far as possible to avoid the price after the first payment to provide product terms.
Four, about the responsibility of the Convention against
We can say, gamma about terms agreed to, directly reflects the quality of the contract, also directly reflects the the contract can successfully carry out the possibility of. According to the practice of legal services for many years, the contract terms about r more simple, more prone to legal disputes. We often see in the contract on the gamma about responsibility this Agreement: both sides should strictly fulfill the contract, such as a party with gamma, then the other party in accordance with the provisions of the law to pursue its gamma about responsibility. To understand a little legal knowledge, know that this Convention, is no positive significance for the performance guarantee contract. Contract law has stipulated, the contract against the party, of course must bear gamma gamma about responsibility, compensate the other party for economic losses. This is a legal obligation, not to the parties in the contract agreement. But if compensation, how to calculate the economic loss of the most important problems are? Involved, will the observant party held gamma gamma about party about responsibility caused a lot of obstacles, and the core of which is the gamma about responsibility audit.
In the concept of contract in front, we talked about if the parties? A in the contract agreed gamma jokin clear or gamma jokin the calculation method, that, once the gamma, the non breaching party cannot be directly to the other claims. The observant party to the gamma about claim, then, he was one of the first to prove that he is indeed by the economic loss. Secondly, he should also prove their economic losses because of each other's gamma about as a result of. Thirdly, he should also be calculated by the specific amount of economic damage, the amount must be used to reflect the value of money. Meet the above three aspects, he can claim to the court against the party bear responsibility about about t. In court, he will have to face against the questioning and defense parties, which will undoubtedly greatly increase the difficulty of his claim.
Here cite an example: if a company for company B deferred delivered to some equipment to the missed a great opportunity to market. Thus, a company to B company claims his economic losses (including can benefit), his claim for the following reasons: (1) if company B on-time delivery of the equipment, the according to the date of the equipment production of? 1000 products, can produce; (2) the product this month in the August, September, October, the market is in short supply,? A profit on the sale of 100 yuan. (3) according to the number of multiply add 2 million profits. Ability to pay at least if a company to allow the court to support his claim for compensation, and that he should also provide the following evidence: (1) the device self to normal start date of commissioning needs how for a long time; (2) the equipment on the production of 1000 products is normal state, full load and overload production: (3) the equipment on the production of 1000 product reference value basis; (4) the product three months of market demand basis; (5) a company's marketing and sales, market share and market influence, enterprise visibility, it is proved that the produced products can sell out the number of basis. Because, if consumers do not know or you are not familiar with that?, even the best-selling product, your product is good, there will be no sales or sales disorder. (6)? A product sales profit basis, is a company to produce profits or social average profit rate. wait Evidence of the above 6 aspects, a company he said don't count, also must obtain relevant social authority approval. So, to a company is simply prohibitively difficult. Of course, the court will usually use discretion in trial, rarely so accurate judgment. But if you can not do the evidence is true and correct, let the other party to refute it?, you in court, it is difficult to face questioning each other, it will certainly put yourself at a disadvantage.
To solve this problem, the most simple and most effective way is to calculate method agreed in the contract or contract of gamma gamma penalty in. For example, in the above case, a company can in the signing of the contract, according to the delivery of the equipment? The number of daily production, combined with market sales, roughly estimate?, can get? Profits, then the agreed: if Party B fails to deliver,? Date shall be pay to Party a the number of dollars gamma jokin. So, as long as the other party can once against the covenant, the claim against the jokin directly to each other. As long as this agreement is not too high against the penalty, the court is very hard to support. And even if it is against the high jokin actual profits, that is to prove to each other. Court in adjust gamma jokin too high or too low is very cautious of, but not judge said, due to gamma YorkIn is too high or too low and the clause is invalid. This is why? Gamma of the contract about the terms of the agreement, the more specific the more detailed, the more can be guaranteed contract to the successful performance of the key.
五、合同争议解决方式的审核
一旦发生Υ约情形，采用何种方式来解决争议纠纷就显得非常重要。根据前面讲到的，当前解决合同争议纠纷，主要是仲裁或诉讼。由于我国当前的地方保护主义的存在，因此，仲裁或诉讼的地点尤其显得重要。笔者建议在合同中，应尽可能选择在企业本地诉讼或者仲裁，宁愿在其它方面作出些让步。 如果合同中?有约定或者约定不明确的，根据法律规定，当事人可以选择诉讼地的，那?，一旦双方争议无法协商一致，企业就应尽快先向有利自己的法院提起诉讼，以求得有利于自己的法院管辖权。
Fourth, after the signing of the contract supervision and management
1, we should pay attention to the statutory period of the contract and the agreed period. Mainly refers to the enterprise for more than the legal limit stipulated in the loss of some statutory right of contract provisions of the right to exercise. Exercise has many legal right in contract law has a clear time limit, over the period, the exercise of the right is lost. In fact, all of these Provisions the term, there are a considerable impact on the business performance of the contract. Therefore, enterprises should regularly read and review the contract prepared by the case, once found problems in a timely report to the leaders, and take appropriate remedial measures.
Such as contract law the provisions of Article 54: "party party concluded as a result of significant misconception or at the time of the conclusion of the contract unconscionability of, have the right to request the people's court or an arbitration institution for amendment or cancellation of the contract; party to fraud, coercion means or by sigma, make the other side in the gamma back the true meaning of the contract, impaired harm Party is entitled to petition the people's court or an arbitration institution for amendment or cancellation." Also in 54 provisions: party having the right to revoke or should know within one year of the reasons for revocation? Have to exercise the right to revoke the right to revoke the elimination.
Such as the Contract Law Article 158 on the product quantity and quality inspection provisions: client? Agreed inspection period, buyer shall be discovered or ought to have discovered the quantity or quality of the subject matter does not conform to a reasonable period stipulated in the notice to the seller within. Buy in within a reasonable period of time delta notification or from receipt of the subject matter, play two years Delta a notice to the seller, depending on the quantity or quality of the subject matter is in conformity with the agreed, but underlying has quality guarantee period, applicable quality guarantee period, does not apply to the provisions of the two years.
Again such as the contract law article 192 and Article 193 of gift in the provisions of: the donee is under any of the following circumstances of, the donor may revoke the gift: (a) serious violations of donor or gift of close relatives; (II) to the donor has the obligation to support and does not perform; grant (3) does not fulfill the obligations stipulated in the contract. The donor's right of revocation, knows or should know the cause for revocation exercised within one year. Due to the donee's illegal behavior resulting in the donor's death or loss of capacity for civil conduct, his heir or legal agent may revoke the gift the gift. His heir or legal agent right of revocation, knows or should know the cause for cancellation within six months from the date of exercise.
If the enterprise after the signing of the contract, the contract on the shelf, that is clearly not to pay attention to to the above cancellation in the time limit. The right of revocation period of the above aspects, is a kind of legal remedy right from the legal provisions of the state on the damaged side. Since the contract is based on the two sides in the voluntary and mutually beneficial agreement, both sides have the obligation to review each other's identity and qualification, have the obligation to carefully review the relevant provisions. Therefore, the exercise of the statutory right of revocation is not possible without time limit.
There is a situation of the parties voluntarily agreed in the contract. The contract law of ninety-third and 95: one party shall terminate the contract. The fulfillment of the conditions to terminate the contract, termination right may terminate the contract. The provisions of the law or the parties prescribe a period for exercising the right of rescission, the expiration of the period of the parties fails to do so, the right to destroy. The law stipulates or the parties have?? have the right to terminate the contract exercise period, urged by the other party within a reasonable time after fails to do so, the right to destroy.
How to explain the reasonable period of time, and the legal provisions, the court? Is generally based on the daily performance period to calculate. For example: if a product delivered 3 months overdue, Party B has the right to terminate this contract unilaterally. This is the terms of the contract effective. That is to say, if Party B is not within a reasonable period of time to exercise the right to terminate the right is automatically destroyed.
2, to take good care of the original contract, pay attention to the specific content of security contract
Keep the original contract is very important, but this is not the necessary condition for the performance of the contract, the original claim is the most direct evidence. If the business of the original contract lost, there will be more enterprises claim caused a very passive situation, and even lead to claims. Many of the contents of the contract is not willing to open, some contract will involve commercial and technical secrets. The custody of these contracts, particularly important. I suggest that these contracts included in the custodian of commercial and technical personnel in enterprise management, in order to prevent the leakage of internal information important?. As for the original contract period will keep many, I think that as long as possible, the shortest period should not be less than 2 years, the 2 year period from the date of completion of the contract calculation. It is a period of 2 years, is the main period of civil disputes in China is 2 years. Of course, some of the contract period of 2 years is too short. Especially those important equipment, engineering installation, construction contracts, the contract custody period should be at least equal to or greater than its age. For example, housing, according to China's regulations, general safety period of civil building in general for 50-100 years. If in use 60 years after the collapse, developers still have a single lambda gamma may take about responsibility. At this time if the developer and the related single lambda survey and design contract, engineering construction contract contract for equipment installation, has been damaged, the will suddenly increase developers to the difficulty of the single lambda claims.
