Enacted in 1993, the Company Law has been revised several times with the latest adoption in 2018. In the amendment, long standings provisions are changed to simultaneously increase protection for bona fide parties and further regulate unethical practices. Major alterations are outlined below.

Share classes

Joint stock limited companies are permitted to issue other types of shares. Other than ordinary shares, shareholders may issue preferred shares and deferred shares, shares with a different number of voting rights, and determine corresponding rights protection for such shareholders.

Simplified procedures

Provisions to simplify administrative procedures improve the facilitation of company operations. Specifically, capital reduction and simplified deregistration procedures under specific conditions are simplified.

Registration Rules

A company registration chapter is added to enhance the administration procedure. Such addition elevates the Administrative Regulations of the People’s Republic of China on the Registration of Market Entities (effective on March 1, 2022) to the rule of law. In the chapter, further clarification is provided on matters and procedures related to the company’s establishment registration, alteration registration, and cancellation registration, and the company registration authority is instructed to optimise the registration process and improve the efficiency and convenience of registration.
Powers and duties of directors, supervisors, and senior management

The duties of loyalty and diligence of the directors, supervisors, and senior management are further stressed to protect stakeholder interests. Joint and respective liable are provisioned for those who cause damage to others in an intentional act or gross negligence whilst performing duties.

Shareholders’ right to know

Another addition is the right for shareholders to consult the register of shareholders and accounting vouchers. Shareholders can entrust agencies to access information, enable professionals of agencies to collate and analyze information and define reasonable decisions based on such insights.

The Revised Draft is envisioned to be adopted in 2023. For companies, the revisions advance the corporate legal framework in China and provide a greater legal basis for courts to handle disputes.

Furthermore, we foresee forthcoming corporate legislation supplementing the Revised Draft (once adopted) and arising from needs of social development, such as the latest series of laws, regulations, and standards related to information and data protection and security.

This content appears as a courtesy of Horizons Corporate Advisory, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.horizons-advisory.com. 

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Werden im Rahmen einer Hausdurchsuchung Unterlagen und Datenträger sichergestellt, die aus der Sicht des Beschuldigten nicht durchsucht werden dürfen, so ist er berechtigt, diese versiegeln zu lassen. Als Siegelungsgründe gelten unter anderem persönliche Aufzeichnung des Beschuldigten sowie dessen Korrespondenzen mit seiner Verteidigung oder anderen Berufsgeheimnisträgern.

Ist ein Siegelungsbegehren rechtsgültig gestellt, so ist die Staatsanwaltschaft gehalten, innerhalb von 20 Tagen ein Entsiegelungsbegehren beim zuständigen Zwangsmassnahmengericht zu stellen.

Als anerkannt galt bis anhin, dass der Siegelungsantrag an keine Form gebunden ist. Insofern konnte dieser auch mündlich vor Ort oder gar telefonisch eingebracht werden. Ebenso herrschte Klarheit darüber, dass der Siegelungsantrag in unmittelbarem zeitlichen Zusammenhang mit der Sicherstellung der betreffenden Unterlagen bzw. Datenträger zu erfolgen hat.

Unklarheit herrschte demgegenüber über die Frage, inwiefern im Siegelungsantrag auf die einzelnen Siegelungsgründe einzugehen ist. In einem neu ergangenen Entscheid stellte das Bundesgericht hierzu fest, dass zur Glaubhaftmachung eines Siegelungsantrags mindestens ein Siegelungsgrund geltend gemacht werden muss. Die Siegelungsgründe müssen dabei zwar noch nicht im Detail begründet werden, aber es muss mindestens ein Siegelungsgrund sinngemäss vorgebracht werden (BGE 1B_273/2021, E. 3.3 f).

Es empfiehlt sich daher, bereits anlässlich einer Hausdurchsuchung die entsprechenden Siegelungsgründe möglichst exakt zu benennen. Andernfalls läuft man Gefahr, dass die entsprechenden Sicherstellungen unversiegelt der Staatsanwaltschaft zur Durchsuchung ausgehändigt werden.

Author: Darko Radovic

This content appears as a courtesy of HütteLAW, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.huettelaw.ch.

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Investment program highlights

Minimum investment amount

Investor may invest 250,000 EURO in real estate either as an individual or company purchase. The number of houses is not limited, if the total value of the properties amounts to 250,000 EURO or more. The property once purchased can be rented out.

Family Reunification

Both spouse and children under the age of 21 years old can be included in the investment program. Furthermore, residency can be extended to parents of both spouses. Both the applicant and family members can access the education, healthcare, insurance policies related to pensions and so forth.

Minimum stay per year

None

Investment Eligibility

Applicants need to meet the following requirements:

• Non-EU/EEA country citizen
• Min 18 years old
• No criminal record
• Obtain medical insurance
• Good character

Author: Maria Georgiou

This content appears as a courtesy of Georgios K Georgiou LLC, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information related to its content, please visit www.georgioullc.com

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While the above process is very important, the reality is that it only applies to 6% of land in Zambia, as the bulk of the land in Zambia is under customary tenure, representing a humongous 94% of the total land. This entails that anyone trying to acquire land in Zambia has a chance of encountering customary tenure and some basic idea about how to safely acquire land under customary tenure becomes very useful. Because there is no central registry for customary land, which is administered by traditional authorities, the following five pointers can be useful in successfully acquiring land subject of customary tenure, thereby reducing legal challenges:

The agreement to buy land must be in writing

It is a legal requirement, founded on the Statute of Frauds 1677, an English Statute applicable to Zambia that any transaction for the sale of land must be evidenced by a note or memorandum in writing, as a precondition for their enforceability in the courts of law. Therefore, at a minimum, similar to state tenure, a conveyance of traditional land must begin with a legally enforceable written agreement between the seller and the purchaser. The written agreement must not only specify the terms of the agreement but most importantly the location of the land and the extent of the land.

Involve independent witness, to the signing and identification of the land.

Traditionally, for anything to be readily accepted by all must be a ceremony. Therefore, make your purchase of traditional land a ceremony to enhance the chances acceptance by all concerned in that society. Ensure that the written document is witnessed by other persons in the village or area, and not just immediate family members of the vendor.  The witnesses must not just witness the signing of the agreement, but also the actual piece of land and its dimension. Independent witnesses also hedge against encroaching into other people’s land, in addition to being a due diligence safeguard, as few people would want to openly support an illegality in broad daylight.

Notify the Headperson and be entered in the village register

All traditional land, though vested in the Republican President is actually under the custody of the area traditional chief, who is represented by the headman or woman at village level. To complete the purchase, the transaction must register with the area headperson, and the purchaser’s name duly registered into the village register to signify that the local custodian is fully aware of your interest as a purchaser. Additionally, this step helps to confirm the authenticity of the land being sold.

Record with the area chief

As already indicated, the ultimate custodian of the customary land is the area Chief, and following your entry into the village register, check that your record is transmitted to the area Chief. This step will also help you at a later stage, should you decide to covert to state tenure, as the Chief’s endorsement is a precondition for any such conversion.

Take possession

You are truly not secure, unless you are actually on the land. This means you must begin working the land, either farming or clearing or doing something which signifies your presence thereon. Legally, another person cannot take a better interest over that land as they are mandated to carry out an investigation to ascertain your interest. If you are not in possession of the land, a third party may take a better interest than you, provided they are unaware of your interest, likely to happen when you are not in possession. This also reduces chances of encroachments with other land owners.

These steps will help greatly to successfully acquire an interest in land subject of customary tenure, before you decide to convert the same interest to customary tenure, a topic we shall address separately later.

Conveyancing Team

Equitas Legal Practitioners

Client Legal Alert – Equitas Legal Practitioners@2022

*This scholarly article is a general guide and does not contain definitive legal advice. Readers considering taking action on any of the issues discussed should speak to their legal advisors before taking any such action. Equitas disclaims any liability whatsoever arising from acting on this article.

This content appears as a courtesy of Equitas Legal Practitioners, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit https://equitas-legal.com/.

The post Conveyancing of Traditional Land in Zambia – 5 Pointers appeared first on China Collaborative Group.

• Provisional Regulations on Enterprise Information Disclosure (“Provisional Regulations”), effective from 1 October 2014

• Interim measures for administration of List of Enterprise with Abnormal Operations (“Interim Measures”) effective from 1 October 2014

• Administrative Measures for Market Regulation of the Seriously Illegal and Dishonest Entities List (“Administrative Measures for Dishonest Entities List”), effective from 1 September 2021

• Administrative Measures for Market Regulation of Credit Restoration (“Administrative Measures for Credit Restoration”), effective from 1 September 2021

The Provisional Regulations requires enterprises to submit the annual report for the previous year between the 1st January to 30^th June, and publicly disclose such information. The information submitted and disclosed shall include the address and contact number of the company, operation status of the company (open, closed or liquidated), investment or shares purchasing related information, capital contribution, contribution date and form of contribution by the company’s shareholder, number of employees, total assets, total liabilities, operating income, main business income, total profits, total tax paid, and so forth.

Enterprises who do not submit the annual report on time shall be listed as Enterprise with Abnormal Operations, as stipulated in the Interim Measures.

Also, enterprises will be listed as Enterprise with Abnormal Operations in the following cases:

• Failing to disclose information upon alteration as according to Article 10 of the Provisional Regulations, and failing rectify the violation on time after being notified by the administrative management department

• Concealing the real situation or practicing fraud when disclosing enterprise information

• Failing to contact enterprise at the registered address (site of business operation)

If an enterprise is listed as an Enterprise with Abnormal Operations and rectifies such violations on time, may apply to be removed. Specifically, the Interim Measures, provision the specific rectifications:

• Enterprises who fail to submit the annual report on time may apply to be removed upon submitting and publishing the annual report.

• Enterprises who fail to disclose information after alteration on time shall publish the altered information. Then apply to regain its normal operation status record at the administration of industry and commerce.

• Enterprises who could not be contacted at its registered address, may regain its normal operation status record after conducting the regular procedures for alteration of registered address or business operation site, or claimed that the Enterprise can contacted at its registered address.

From the listed date, enterprises listed as Enterprises with Abnormal Operations and exceeding three years will be listed as “seriously illegal and dishonest enterprises”. As “seriously illegal and dishonest enterprises”, enterprises will face severe negative image and reputation.

Therefore, enterprises should take corrective actions promptly when listed as “enterprises with abnormal operations”, and apply to be removed at the competent administration of industry and commerce as according to the aforesaid procedures.

Dishonest Entities List

The Administrative Measures for Dishonest Entities List, defines the Dishonest List as companies that:

• seriously endanger people’s health and life safety,
• seriously destroy the fair market competition order and normal social order,
• refuse to perform legal obligations,
• seriously affect the credibility of administrative organs and companies with other serious illegal and dishonest behaviors.

Generally, enterprises in industries directly related to the people’s life, health and safety are affected including food, drugs, special equipment, and other related sectors.

Similar to the “Enterprise with abnormal operations list”, enterprises, listed as “illegal and dishonest enterprise” for more than one year, may request to be removed at the competent Market Supervision Administration. Specifically, the Administrative Measures for Credit Restoration stipulates the below preconditions:

• The enterprise has fulfilled the obligations provided in the administrative penalty
• The enterprise has proactively rectified the negative impacts and consequences
• The enterprise is no-longer subject to further serious administrative sanctions provisioned by the relevant administrative departments

Removal from the “abnormal operations list” or “illegal and dishonest enterprises list” will not delete the historical record of enterprises being listed. Rather such records are held on the company’s credit file and publicly disclosed.

Therefore, understanding and comply with the Chinese laws and regulations is essential to enterprises’ operations and entire life-circle. Any irregularities detected by the competent authorities will be an irreversible record for the company.

This content appears as a courtesy of Horizons Corporate Advisory, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.horizons-advisory.com. 

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Im Gesuch ist die finanzielle Situation der Gesellschaft darzulegen, wobei das Gesuch gemäss Art. 293 ff. SchKG zwingend folgende Beilagen zu enthalten hat:

• eine aktuelle Bilanz der Gesellschaft
• eine Erfolgsrechnung
• eine Liquiditätsplanung oder entsprechende Unterlagen, aus denen die derzeitige und künftige Vermögens-, Ertrags- oder Einkommenslage des Schuldners ersichtlich ist, sowie
• ein provisorischer Sanierungsplan

Die Gesuchstellerin kann das Gericht um provisorische Nachlassstundung für maximal vier Monate ersuchen. Auf Antrag kann die provisorische Nachlassstundung in begründeten Fällen um weitere vier Monate verlängert werden. Ein Gesuch wird bewilligt, sofern nicht offensichtlich keine Aussicht auf Sanierung oder Bestätigung eines Nachlassvertrages besteht. Das Nachlassgericht hat die provisorische Stundung unverzüglich nach Eingang des Gesuches zu behandeln und trifft von Amtes wegen weitere zur Erhaltung des schuldnerischen Vermögens notwendige Massnahmen (Art. 293a Abs. 1 SchKG).

Nach Art. 293b SchKG setzt das Nachlassgericht einen oder mehrere Sachwalter zur näheren Prüfung der Aussicht auf Sanierung oder Bestätigung des Nachlassvertrages ein. In begründeten Fällen kann jedoch von der Einsetzung eines Sachwalters abgesehen werden.

Haben Sie weitere Fragen? Das HütteLAW-Team berät Sie gerne.

Author: Larissa Kälin

This content appears as a courtesy of HütteLAW, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.huettelaw.ch.

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Like in any judgment, there are numerous lessons to be drawn from the decision of the Supreme Court, but in this article, we highlight five points that strike on corporate insolvency law in Zambia. A caveat must be placed here, being that the decision deals with corporate insolvency law as it existed before the enactment of the Corporate Insolvency Act, No. 9 of 2017. The lessons however, and the Supreme Court was alive to this fact, remain valid post the said new Act..

No. 1; Directors of the company retain residual power to litigate against wrongs done to the company

It is standard legal principle that once a company is placed under liquidation and a provisional liquidator appointed over its affairs, the power and control of the company is divested from the board and transferred to the liquidator. This means the company under liquidation can and does act at the behest of the liquidator. But the Supreme Court has endorsed the position that notwithstanding this clear position, directors and shareholders of the company have residual power to resist the liquidation and to litigate against wrongs done to the company by the liquidator and for the liquidator to account for his actions.

No. 2; Provisional Liquidator is not necessary in every case, although a liquidator is

When a petition is presented for liquidation, it is usual to make an application for the appointment of a provisional liquidator, pending the determination of the matter. The Supreme Court has clarified the need to carefully consider the need of such a ‘serious task’ which may in fact spells irreversible doom for the company. The provisional liquidator’s role is to preserve the assets of the company, pending the making of the winding up order. Care must be exercised to ensure that the decision to appoint a provisional liquidator is based on this fundamental rule.

Otherwise, only the liquidator would be necessary at the point of making an order for winding up of the company.

No. 3; Yes, Liquidator is boss, but he is also subject to supervision by committee of Inspection

Notwithstanding that the liquidator has overall powers over the affairs of the company subject of liquidation and supplants the board, the liquidator cannot be a law unto themselves. This is because the liquidator is subject to the committee of inspection, which must be put in place to supervise the conduct of the liquidation by the liquidator.

No. 4; Liquidator without personal liability, though fancy, actually doesn’t exist

While it is usual for the liquidators to style themselves as ‘liquidator without personal liability’, this fancy description should not mislead one to believe the liquidator can never be made to account for their actions, and in an appropriate case, be held personally liable for their actions or omissions during the liquidation process. In this case, the Supreme Court specifically directed the addition of the liquidator to the proceedings for the purposes of inquiring into his possible personal liability.

No. 5; The Courts of law are the overall supervisors over a liquidation

The Supreme Court has underscored the heavy and important supervisory role placed on the courts of law in liquidations. It is for the courts to confirm that the grounds presented for a petition for liquidations are indeed genuine and that the players in the liquidation process are correctly playing their roles. The courts cannot underplay the heavy, serious and solemn role of consciously supervising liquidations placed on it by the law, not even when the parties are purportedly agreed, through a consent order.

It’s safe to conclude that the latest Supreme Court decision has numerous useful lessons for corporate insolvency law in Zambia. This should shape how future liquidations, even the current ongoing ones, on how they ought to be conducted.

Client Legal Alert – Equitas Legal Practitioners@2022

*This scholarly article is a general guide and does not contain definitive legal advice. Readers considering taking action on any of the issues discussed should speak to their legal advisors before taking any such action. Equitas disclaims any liability whatsoever arising from acting on this article.

Parties are purportedly agreed, through a consent order.

It’s safe to conclude that the latest Supreme Court decision has numerous useful lessons for corporate insolvency law in Zambia. This should shape how future liquidations, even the current ongoing ones, on how they ought to be conducted.

This content appears as a courtesy of Equitas Legal Practitioners, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit https://equitas-legal.com/.

The post Corporate Insolvency Law in Zambia; 5 Lessons from the latest Supreme Court decision in Fred Mmembe and Post Newspapers Case appeared first on China Collaborative Group.

Die Gerichte haben bei der notwendigen Kontrolle den unternehmerischen Entscheid wie nachfolgend zu beurteilen, wobei der Richter nicht sein unternehmensfremdes Wissen und Ermessen anstelle der Unternehmensführung setzen darf.

Voraussetzungen für den korrekten Entscheid sind:

• Formell ordnungsgemässer Beschluss (Einladung, Protokoll);
• Kein Interessenkonflikt (Einhaltung der Ausstandsregelungen);
• Beachtung von Gesetz und Statuten (Compliance);
• Einholung aller zumutbaren Informationen und Abwägung der möglichen Alternativen.

Ein Verwaltungsrat oder Geschäftsführer sollte seine Entscheidungen so vorbereiten dass die notwendigen Beweise vorliegen, um das mangelfreie Zustandekommen des Entscheids zu belegen. Aus diesem Grund ist ein Beschlussprotokoll in der Regel ungenügend und die Erstellung eines Beratungsprotokolls zu empfehlen. Ebenfalls von Wichtigkeit ist die stete Prüfung, ob ein Interessenkonflikt vorliegen könnte.

Als Faustregel gilt deshalb: je grösser das unternehmerische Risiko, umso wichtiger ist die Nachweisbarkeit des korrekten Zustandekommens des Entscheides.

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Author: Michael Endres

This content appears as a courtesy of HütteLAW, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.huettelaw.ch.

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Permanent Residency highlights 

Minimum investment amount

Investors must invest minimum 300,000 EURO in one of the following investment categories:

• Investment in a house/apartment: Purchase of a house or apartment from a development company,
• Investment in real estate (excluding houses/apartments): Purchase of other types of real estate such as offices, shops, hotels or related estate developments or a combination of these with a total value of €300,000.
• Investment in Cyprus Company’s share capital, with business activities and personnel in the Republic: €300,000 in the share capital of a company registered in the Republic of Cyprus, based, and operating in the Republic of Cyprus with proven physical presence in Cyprus and employment of least five (5) people.
• Investment in units of Cyprus Investment Organization of Collective Investments (forms of AIF, AIFLNP, RAIF): Investment worth €300,000 in units of Cyprus Investment Organization Collective Investments.

The applicant must prove a secure annual income of at least 30,000 EURO. A 5,000 EURO will be added for each dependent family member and 8,000 EURO for each dependent parent (of the applicant and/or his spouse).

Family Reunification

Both spouse and children under the age of 18 years old can be included in the investment program. Furthermore, residency can be extended to parents of both spouses. 

Employment

Applicants and their spouses cannot undertake any employment under this investment program. If the applicant has chosen the investment in a Cypriot company, the individual can be employed as the director of the company.

Investment Eligibility

Applicants need to meet the following requirements:

• Non-EU/EEA country citizen
• Min 18 years old
• No criminal record
• Obtain medical insurance
• Good character

Schedule

Approximately 2 months from the submitted date of the application

Author: Maria Georgiou

This content appears as a courtesy of Georgios K Georgiou LLC, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information related to its content, please visit www.georgioullc.com

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For employers, understanding salary obligations for employees in quarantine or lockdown can be challenging. Employers must adhere to labour obligations according to the law otherwise may face labour disputes. We provide a Q&A on employer obligations when employees are quarantined or lockdown.

What is the salary obligation for quarantined employees?

Quarantined employees providing  normal work in quarantine or under other emergency measures taken by the government based on  epidemic prevention and control shall be treated as normal attendance and paid normal remuneration.

According to the notice on properly handling the labor relations during the prevention and control of pneumonia infected by novel coronavirus (the “Notice”) issued by the general office of the Ministry of human resources and social security, infected or suspected employees  suspected employees deemed as close contact and cannot provide normal work during quarantine or medical observation, or due to the implementation of isolation measures or other emergency measures by the government, shall be treated as  normal attendance and paid normal renumeration.

For employers, the Notice suggests that employers negotiate with the employee to treated the period as annual leave or rest days. If negotiations are not established, the employer can implement the overall arrangements according to the annual leave of the isolated employees according to law.

What if my enterprise faces difficulties in production and operation due to the impact of the epidemic measures?

Under the Notice, the enterprise may adjust the salary, rotate the post and rest, shorten the working hours and so forth through consultation with the employees.

If the enterprise is shutdown within a wage payment cycle, the enterprise shall still pay the wages of employees according to the standards stipulated in the labor contract.

If the employee is still unable to provide normal work beyond one wage payment cycle, the enterprise shall pay living expenses, and the standard of living expenses shall be implemented in accordance with the measures of the provinces, autonomous regions and municipalities directly under the central government.

What if employee’s labour contract expires during quarantine?

In the event that the employee’s labor contract expires during quarantine, the date shall be postponed till the  employee finishes the quarantine or medical observation period.

How to determine the arbitration statutory limitation during epidemic measures?

Under, the Labor Dispute Mediation and Arbitration Law of the people’s Republic of China the statutory limitation for application of labour disputes arbitration is limited to one year (‘the period’). The period shall be calculated from the date the parties recognise or should recognise the infringement of rights. However, if the parties are unable to apply for arbitration within the  period due to force majeure or other justified reasons such as epidemic measures, the period shall be suspended and the period shall be recalculated from the date the force majeure or other justified reasons finishes.

Equally, If the labor and personnel dispute arbitration institution cannot hear the case within the period due to the impact of the epidemic measures, the hearing time limit may be postponed accordingly.

This content appears as a courtesy of Horizons Corporate Advisory, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit www.horizons-advisory.com. 

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