Legal provisions for returning to work Since mid-April, the government has issued multiple batches of "white-label policies" for companies to resume work, production and the market, on the basis of en

Legal provisions for returning to work Since mid-April, the government has issued multiple batches of "white-label policies" for companies to resume work, production and the market, on the basis of ensuring compliance with epidemic prevention and control requirements and in order to assist economic recovery. List", more and more industrial enterprises have gradually resumed production in an orderly manner, and since May 16, the city has promoted the resumption of business and market in stages, indicating that Shanghai has pressed the "fast forward button" for resumption of work, production and market. . In order to meet the legal needs of various market entities in the context of epidemic prevention and control, the Jinshan Court has launched a question and answer guide for some legal issues that companies may encounter during the process of resuming work, production and markets, with a view to resolving their difficulties. 1. What principles should enterprises follow when resuming work, production and markets? Answer: The principle of legal compliance. Enterprises applying for resumption of work, production and market should abide by the principle of legal compliance, strictly implement the policies of administrative agencies on resumption of work, production and market, and must not resume work without approval. According to the "Jinshan District Enterprises Resumption of Work New Crown Epidemic Prevention and Control Guidelines (Second Edition)", industrial enterprises in Jinshan District that meet the conditions for resumption of work can register information for resumption of work, production and market through the computer or mobile phone. Legal regulations are related to the resumption of work and production. You need to know these. 2. What legal responsibilities may a company bear if it resumes work, production and market without authorization? Answer: It may be held responsible for civil liability, administrative liability and criminal liability. Notices from administrative agencies on the resumption of work, production and market are emergency measures formulated and announced in accordance with the law with administrative coercive force, and all types of enterprises are obliged to comply with them. If the company ignores the situation and resumes work, production and market without authorization, the company or its managers and directly responsible personnel may face the legal risk of being held civilly, administratively and criminally liable. Legal Norms: "Law of the People's Republic of China on the Prevention and Control of Infectious Diseases" Article 77 If any unit or individual violates the provisions of this law, causes the spread and prevalence of infectious diseases, and causes damage to others' persons or property, they shall bear civil liability in accordance with the law. . Article 50 of the "Public Security Administration Punishment Law of the People's Republic of China" Article 50 Whoever commits any of the following acts shall be given a warning or fined not more than 200 yuan; if the circumstances are serious, he shall be detained for not less than five days but not more than ten days, and may also be fined five years Fines of up to 100 yuan: (1) Refusal to implement decisions and orders issued by the people's government in accordance with the law during a state of emergency; (2) Obstructing state agency staff from performing their duties in accordance with the law; (3) Obstructing fire engines and fire engines that perform emergency tasks. Ambulances, engineering rescue vehicles, police cars and other vehicles are passing through; (4) Forcibly breaking through the warning belts and warning areas set up by the public security organs. Those who obstruct the people's police from performing their duties in accordance with the law shall be severely punished. "Emergency Response Law of the People's Republic of China" Article 64 If relevant units have any of the following circumstances, the local people's government that performs unified leadership responsibilities shall order them to suspend production and business, and their licenses or business licenses shall be temporarily withheld or revoked. , and shall be fined not less than 50,000 yuan but not more than 200,000 yuan; if it constitutes a violation of public security management, the public security organs shall impose penalties according to law: (1) Failure to take preventive measures in accordance with regulations, resulting in a serious emergency; (2) Failure to promptly eliminate discovered hidden dangers that may cause emergencies, resulting in serious emergencies; (3) Failure to do routine maintenance and testing of emergency equipment and facilities, resulting in serious emergencies or the expansion of the hazards of emergencies (4) Failure to organize and carry out emergency rescue work in a timely manner after an emergency occurs, resulting in serious consequences. For the conduct specified in the preceding paragraph, if other laws and administrative regulations stipulate that the relevant departments of the people's government shall decide the punishment in accordance with the law, such provisions shall prevail. "Criminal Law of the People's Republic of China" Article 330 Violates the provisions of the Law on the Prevention and Control of Infectious Diseases and refuses to implement the prevention and control measures proposed by the health and epidemic prevention agency in accordance with the Law on the Prevention and Control of Infectious Diseases, causing the spread of Class A infectious diseases or causing serious consequences. Those who spread serious dangers shall constitute the crime of obstructing the prevention and control of infectious diseases and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the consequences are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. If a unit commits the crime in the preceding paragraph, the unit shall be fined, and the person directly in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph. 3. During the resumption of work and production, if employees violate epidemic prevention policies and the company is fined administratively, can the company recover compensation from the employees? Answer: Liability needs to be determined based on the respective faults of the company and employees. The prerequisite for resuming work, production and markets is to adhere to the bottom line of epidemic prevention. Both enterprises and employees should fulfill corresponding responsibilities and obligations and abide by various epidemic prevention regulations. If an enterprise is fined administratively due to employees' violation of epidemic prevention policies, whether the enterprise can require employees to compensate for losses depends on the respective faults of the enterprise and employees: (1) As an employer, the enterprise should implement its main responsibilities and take various prevention measures. control measures. If an employee's violation of the epidemic prevention policy is caused by the company's own lack of prevention and control awareness, non-standard rules and regulations, and incomplete protective measures, and the employee is performing his duties without intentional or gross negligence, the employer cannot recover compensation from the employee. . (2) Consciously complying with epidemic prevention and control policies is the responsibility and obligation of every citizen. If the employer has fulfilled its corresponding epidemic prevention management responsibilities for its employees, but is fined because the employees themselves failed to implement relevant systems and thus violated epidemic prevention policies, the employer may claim compensation for losses from the employees. (3) If both the company and its employees are at fault for violating epidemic prevention policies, they shall bear corresponding legal responsibilities according to the degree of their respective faults. Legal norms: Article 1165 of the "People's Republic of China and Civil Code" If an actor causes damage due to wrongful infringement of the civil rights and interests of others, he shall bear tort liability. 4. After work and production are resumed and markets are resumed, can companies require returning employees to work overtime? Answer: Yes. According to the law, if an employer needs to extend working hours due to special reasons, the extended working hours shall not exceed three hours per day and shall not exceed 36 hours per month while ensuring the health of the workers. Therefore, if an enterprise needs to extend its working hours due to the impact of the epidemic or prevention and control measures after resuming work and production, it can arrange for returning employees to work overtime in accordance with the law on the premise of ensuring the health of employees. At the same time, if an enterprise needs to work emergency overtime to undertake tasks such as government epidemic prevention and control support, on the premise of ensuring the health and labor safety of workers, after consultation with the labor union and employees, the company may not be exempted from the aforementioned three hours per day and three hours per month. There is a limit on the length of overtime work of sixteen hours, but corresponding overtime wages should be paid or compensatory leave arranged in accordance with the law. Legal norms: "Labor Law of the People's Republic of China" Article 41: Due to production and operation needs, the employer may extend working hours after consultation with the trade union and workers, generally not more than one hour per day; due to special reasons If it is necessary to extend working hours, the extended working hours shall not exceed three hours per day and shall not exceed thirty-six hours per month under the conditions of protecting the health of workers. Article 42 Under any of the following circumstances, extension of working hours is not subject to the restrictions stipulated in Article 41 of this Law: (1) Natural disasters, accidents or other reasons threaten the life, health and property safety of workers, Urgent treatment is required; (2) Production equipment, transportation lines, and public facilities malfunction, affecting production and public interests, and must be repaired in a timely manner; (3) Other situations stipulated by laws and administrative regulations. "Opinions on Stabilizing Labor Relations and Supporting the Resumption of Work and Production of Enterprises During the Prevention and Control of the Novel Coronavirus Infection Pneumonia Epidemic" (Ministry of Human Resources and Social Security [2020] No. 8) For enterprises that need to work overtime urgently when undertaking government epidemic prevention and control tasks, On the premise of ensuring the physical health and labor safety of workers, enterprises are guided to negotiate with labor unions and employees to appropriately extend working hours to respond to emergency production tasks, and are not subject to restrictions on extending working hours in accordance with the law. 5. During the performance of the contract, if the epidemic or prevention and control measures constitute force majeure, what should the contract subject do? Answer: You can claim exemption from liability. If the purpose of the contract cannot be achieved, the contract can be terminated. Force majeure refers to objective circumstances that are unforeseen, unavoidable and insurmountable. During the performance of a contract, if the contract cannot be performed due to the epidemic or prevention and control measures, the parties may claim partial or complete exemption from liability based on the extent of the impact of the epidemic on the performance of the contract. If the epidemic or prevention and control measures directly lead to the inability to achieve the purpose of the contract, the parties may also invoke the provisions of the "People's Republic of China and Civil Code" on force majeure and claim to terminate the contract. At the same time, contract parties need to note that force majeure is not a universal excuse for exemption, but should be applied in accordance with the law: First, not all contracts during the epidemic period can be claimed for non-performance on the grounds of force majeure. There must be a direct causal relationship between the failure to perform the contract and the epidemic or prevention and control measures. , if force majeure occurs after a party delays performance, it will not be exempted from liability for breach of contract; secondly, if the performance of the contract is affected by the epidemic, the other party should be notified in a timely manner via WeChat, email, etc., in order to reduce the losses that may be caused to the other party; Finally, it should Pay attention to collecting and retaining evidence that the contract cannot be performed due to the epidemic or prevention and control measures, and provide proof to the counterparty of the contract within a reasonable period. Legal norms: Article 180 of the "People's Republic of China and Civil Code" If a person is unable to perform civil obligations due to force majeure, he shall not bear civil liability. If the law provides otherwise, such provisions shall prevail. Force majeure is an objective situation that cannot be foreseen, avoided and cannot be overcome. Article 563: The parties may terminate the contract under any of the following circumstances: (1) The purpose of the contract cannot be achieved due to force majeure; Article 590: If one party is unable to perform the contract due to force majeure, according to the impact of force majeure, Partially or completely exempted from liability, unless otherwise provided by law. If the contract cannot be performed due to force majeure, the other party shall be notified in a timely manner to mitigate possible losses to the other party, and proof shall be provided within a reasonable period. If force majeure occurs after a party delays performance, its liability for breach of contract will not be exempted. 6. During the performance of the contract, if the epidemic prevention and control measures cause a situation change, how should the contract parties respond? Answer: Mutual negotiation. If negotiation fails, you can request for change or cancellation. During the epidemic prevention and control period, although the contract is still performable, due to the epidemic or prevention and control measures, the basic conditions of the contract have undergone major changes that were not foreseeable by the parties at the time of the conclusion of the contract and are not commercial risks. The continued performance of the contract is very difficult for one party. If it is obviously unfair, the adversely affected party may invoke the provisions of Article 533 of the People's Republic of China and the Civil Code to renegotiate with the other party; if the negotiation fails within a reasonable period, all parties to the contract shall You can request the people's court or arbitration institution to change or terminate the contract. Legal norms: Article 533 of the "People's Republic of China and Civil Code" After the establishment of a contract, if the basic conditions of the contract undergo major changes that were unforeseen by the parties at the time of conclusion of the contract and are not commercial risks, the contract shall continue to be performed. If it is obviously unfair to one party, the adversely affected party may renegotiate with the other party; if negotiation fails within a reasonable period, the party may request the people's court or arbitration institution to modify or terminate the contract. The people's court or arbitration institution shall change or terminate the contract in accordance with the principle of fairness in light of the actual circumstances of the case. 7. After resuming work and production and resuming the market, can companies trade at significantly higher prices? Answer: Respect autonomy, but must not violate legal provisions or public order and good customs. During the epidemic prevention and control period, enterprise labor, logistics, raw material and other costs may increase significantly. Therefore, if the parties to a contract are willing to trade at a high price, the autonomy of the parties should generally be respected. However, companies are not allowed to raise prices for livelihood commodities such as grain, oil, meat, eggs, vegetables, and milk that are necessary for the people to maintain basic lives, masks, antiviral drugs, disinfection and sterilization supplies, related medical equipment and other epidemic prevention supplies that are most closely related to the fight against the epidemic, and related raw materials. The price of auxiliary materials, otherwise the corresponding price terms shall be deemed invalid, and in serious cases may constitute a crime. Legal norms: Article 153 of the "People's Republic of China and Civil Code" Civil legal acts that violate the mandatory provisions of laws and administrative regulations are invalid. However, this mandatory provision does not render the civil legal act invalid, except where such mandatory provision does not render the civil legal act invalid. Civil legal actions that violate public order and good customs are invalid. "Price Law of the People's Republic of China" Article 14 Operators shall not engage in the following unfair pricing practices: (1) Collusion with each other to manipulate market prices and damage the legitimate rights and interests of other operators or consumers; "People's Republic of China Price Law" **Article 225 of the Criminal Law of the People's Republic of China, who violates state regulations and commits any of the following illegal business activities, disrupts market order, and the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also or solely be fined a fine of one for illegal gains A fine of not less than one time and not more than five times but not more than five times; if the circumstances are particularly serious, the person shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined not less than one time but not more than five times of the illegal income or his property shall be confiscated: 4) Other illegal business activities that seriously disrupt the market order. 8. After resuming work and production and resuming the market, can enterprises claim to postpone the repayment of financial loans? Answer: Generally not. As a financial loan contract with money as payment, the epidemic will generally not directly cause the debtor to be unable to perform its repayment obligations. Therefore, unless there is a special agreement, it is not appropriate to claim to reduce or exempt the liability for repayment of debts on the grounds of the epidemic. However, if the enterprise is indeed unable to repay the loan on time due to objective circumstances such as lockdown and quarantine, which constitutes force majeure, it may claim to perform its repayment obligations in a timely manner within a reasonable period after the objective reasons for the failure are lifted, but it must promptly notify the financial institution and provide the corresponding information. supporting materials. In addition, in order to help enterprises, especially small, medium and micro enterprises, overcome difficulties and resume development, the People's Bank of China and other departments have issued some financial support policies, such as "For enterprises severely affected by the epidemic that have difficulty repaying their loans when due, they can extend or renew their loans." "wait. However, it should be noted that the provisions of the above-mentioned financial policies on deferred repayment of financial loans, debt relief, etc. do not have direct legal effect. Enterprises need to reach a new contract change with the financial institution in accordance with the law and regulations in accordance with the notices or announcements issued by the financial institution. Content desirability. For the modified contract, all parties shall abide by the principle of good faith and fully perform their obligations. Legal norms: Article 509 of the "People's Republic of China and Civil Code" The parties shall fully perform their obligations in accordance with the agreement. The parties shall abide by the principle of good faith and perform obligations such as notification, assistance, and confidentiality in accordance with the nature, purpose and transaction habits of the contract. During the performance of the contract, the parties shall avoid wasting resources, polluting the environment and damaging the ecology. "Several Opinions of the Supreme People's Court on Further Strengthening Financial Trial Work" 2. Guide and standardize financial transactions with serving the real economy as the starting point and goal. Article 2 Strictly control loan sharking in accordance with the law to effectively reduce the financing costs of the real economy. If a borrower in a financial loan contract requests a reduction in the total annual interest rate exceeding 24% on the grounds that the interest, compound interest, penalty interest, liquidated damages and other charges simultaneously claimed by the lender are too high and significantly deviate from actual losses, the borrower shall provide support to effectively reduce the financing costs of the real economy. Standardize and guide the order of private financing, and legally deny the validity of contract clauses that circumvent the judicial protection upper limit of private lending interest rates, such as withholding principal or interest, disguised high interest, etc. in cases of private lending disputes. "Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Proper Trial of Civil Cases Involving the New Coronavirus Epidemic in accordance with the Law (II)" (Fafa [2020] No. 17) 2. Regarding the trial of financial cases 10. For those affected by the epidemic or epidemic prevention and control measures For financial loan disputes involving larger industries, as well as enterprises with development prospects but temporarily experiencing difficulties due to the impact of the epidemic or epidemic prevention and control measures, especially small, medium and micro enterprises, the People's Court must fully consider the regulations issued by the People's Bank of China and other five departments during the trial. The "Notice on Further Strengthening Financial Support to Prevent and Control the Pneumonia Epidemic of Novel Coronavirus Infection" and other series of financial support policies: The People's Court will not support litigation claims such as early expiration of loans and unilateral termination of contracts proposed by financial institutions in violation of financial support policies; The interest charged by financial institutions and the disguised interest charged in the name of consulting fees, guarantee fees and other fees must be strictly based on the national preferential interest rate policies for re-lending, re-discounting and other special credit, and no support will be provided for the excess; Disputes involving housing mortgages, credit cards and other personal loan repayments involving people who are hospitalized or quarantined for COVID-19, people who need to be quarantined for epidemic prevention and control, staff who participate in epidemic prevention and control, and people who have temporarily lost their source of income due to the epidemic or epidemic prevention and control measures, People's The court should combine the actual circumstances of the case and change the repayment period based on the principle of fairness. "Notice of the People's Bank of China, Ministry of Finance, China Banking and Insurance Regulatory Commission, Securities Regulatory Commission and Foreign Exchange Bureau on Further Strengthening Financial Support to Prevent and Control the Novel Coronavirus Infection Pneumonia Epidemic" (Yinfa [2020] No. 29) (3) To wholesale, retail, and accommodation companies that are greatly affected by the epidemic Catering, logistics and transportation, cultural tourism and other industries, as well as enterprises with development prospects but temporarily experiencing difficulties due to the impact of the epidemic, especially small and micro enterprises, are not allowed to blindly withdraw, cut off or suppress loans. For enterprises severely affected by the epidemic that have difficulty repaying their loans when due, they can extend or renew their loans. Support relevant enterprises to overcome the impact of the epidemic disaster by appropriately lowering loan interest rates and increasing credit loans and medium- and long-term loans. "Several Policies and Measures for Shanghai to Fight the Epidemic and Help Enterprises Promote Development" (Shanghai Government Regulations [2022] No. 5) &nbs