I. Preparation before review
(A) technical knowledge preparation
Before reviewing a contract, a lawyer must make necessary knowledge preparation for the technical issues involved in the contract. Put some technical books on the lawyer's bookshelf for future reference, and ask relevant experts for advice. The purpose of this preparation is not to be at a loss when encountering technical problems after accepting the entrustment of reviewing the contract.
(2) Preparation of legal knowledge
In addition to understanding the relevant laws, there is also a crucial content in this preparation, that is, it is necessary to read the relevant laws of the foreign countries involved in the contract and understand whether the foreign behavior under the contract is prohibited by the laws of that country. In addition, it is necessary to find out whether there is a bilateral agreement between the foreign businessmen involved in the contract and China. For example, China concluded an arbitration agreement with Japan, the Soviet Union, Eastern Europe and other countries in the defendant's country, which requires that arbitration be excluded in a third country.
(three) review the contract materials
1, sign the qualification certificate
(1) Review the copy of the legal person's own articles of association (including articles of association, agreement, license, etc.). ) Find out whether these laws and regulations prohibit legal persons from engaging in the activities involved in this contract; Whether the signing and performance of this contract violates other agreements or binding relationships signed by this legal person, whether the signing of this contract is authorized and approved by this legal person, and whether the performance of this contract is beyond the business scope approved by this legal person in its own country.
(2) Review the authority certificate of the signing representative to find out whether it has reached the legal signing age stipulated by the domestic law of the signing representative and whether the signing representative has the power to bind the legal person, that is, whether the behavior of the signing representative in the signing process is necessarily accepted by its legal person.
(3) Check the certificate issued by the administrative department for industry and commerce of the country where the legal person is located or the certificate issued by the notary office to prove the reputation of the legal person, and understand the credit status of the legal person.
The signing qualification examination is not only for foreign businessmen, but also for domestic parties. For example, Haitou Seafood Company, Ganyu County, Lianyungang City, in the contract signed between China Yu He Aquaculture Co., Ltd. and Japanese Yonghe Industrial Co., Ltd., concluded the terms of import business related to seafood, which obviously exceeded the operating authority of the seafood company, because in China, the import and export business was greatly restricted, and the company itself did not have independent import and export authority.
2. Feasibility study report
The review of the feasibility study report mainly includes two contents: first, whether the feasibility study report is made seriously, and second, whether the feasibility study report itself is scientific and perfect, and whether the project is carried out should be based on the conclusion of the feasibility study.
3. Other supporting materials
These supporting materials include letters of intent, agreements, memoranda, letters, etc. We know that with the formal signing of the contract, these materials will lose their legal effect as historical documents. However, after the dispute is corrected, if the contract itself is not clearly stipulated and mentioned in these auxiliary materials, then these materials can still be used as the basis for the ruling.
Two. Steps and contents of the review
After completing the above preparations, you can review the contract. Review can be roughly divided into the following four steps: First, rough review. Is to read through the contract first, so as to have a general understanding of the contract content. At this time, you can find some mistakes in words, sentences and punctuation, obvious defects and doubts in the content. Second, check it carefully. At this stage, it is necessary to carefully review the contract item by item. The task of this stage is to ask lawyers to make full use of their profound knowledge, dig out those mistakes that are not easy to be found, and clarify the doubtful questions in the first stage one by one. Third, the trial. This step requires lawyers to find logical faults in a coherent way. Fourth, pay a return visit to the contract drafter. At this stage, lawyers should understand the intention of drafting the contract and the drafter's explanation of some terms, so as to find out what the drafter of the contract does not mean, so that the contract can truly express the drafter's meaning. Of course, the above stages are only divided for convenience of expression. In fact, lawyers often perform these steps alternately and repeatedly, without strict separation.
What problems should lawyers pay attention to when they start reviewing contracts?
(A) Pay attention to the equality of contracts
Everyone knows the importance of equality of rights and obligations in a contract, but people often ignore this point when formulating specific terms. For example, in the technical assistance agreement between Lianyungang Light Industry Company and Suntory Co., Ltd. of Japan on the joint venture Suntory Food Co., Ltd., on the one hand, it is stipulated that the technical know-how transferred by Japan to the company is paid, on the other hand, it is stipulated that the innovations, creations and inventions made by China should be provided to Japan free of charge, which is a typical example of lack of equality. For another example, the contract of Yunhua Hotel signed by our tourism service company and Hong Kong Dahua Industrial Co., Ltd. stipulates: "The annual net profit and distributable depreciation expenses paid to Party B (Hong Kong) shall be paid by the joint venture company's own foreign exchange, and Party A shall be responsible for solving the shortage of foreign exchange." A major feature of a joint venture is to take risks. Hong Kong has the right to operate and manage, and it is also obliged to strive to balance the foreign exchange of enterprises. Therefore, it is obviously unfair for China to guarantee Hong Kong's foreign exchange income.
(B) pay attention to the clarity of the contract
The contract must be clear and easy to understand, so as to avoid disputes over the interpretation of the agreement. The clarity of the contract can roughly include three aspects: first, the clarity of the content. For example, in exclusive distribution contracts, it is often stipulated that dealers have the obligation not to deal in competitive goods. However, if the distributor is a comprehensive company and deals in a wide range of goods, which similar goods can be distributed or not? If there is no clear stipulation, it is generally forbidden to operate similar competitive goods, which will be unfavorable to dealers. In this case, the lawyer should advise both parties to amend the terms of the contract. The second is the clarity of language. It includes sentences, characters and punctuation marks. These aspects are not clear, which not only seems difficult to understand, but also affects the interpretation of the contract. For example, in the contract concluded between Lianyungang Overseas Chinese Federation and Ms. Cheng Moumou in Hong Kong, it is stipulated that dividends should be distributed according to the annual tax profit of the joint venture, and "receiving" is the latter mistake with a completely different meaning. Third, the logic of thinking is clear. For example, it is logically contradictory to write that the seller delivered the goods to the buyer in London and the buyer picked up the goods from the seller in Lianyungang.
(3) Pay attention to the authenticity of the contract
This requires that the written record must be completely consistent with the intention of the parties and avoid words that fail to convey the meaning. For example, Lianyungang Construction and Development Company agreed in the Contract of Huasheng Building Decoration Co., Ltd. signed with Hong Kong Xiyuan International Trading Company that "the depreciation period of fixed assets shall be decided by the board of directors according to X method", and the depreciation period of fixed assets shall be decided by Lanting according to X method instead. According to the original understanding, Law X seems to stipulate that the board of directors has the right to decide the depreciation period at will. Another content of the authenticity of the contract is that the content of the contract must reflect the free will of the parties to the contract within the scope permitted by law. Neither party shall impose its will on others, nor shall it allow a third party to force both parties to reach an agreement.
(D) pay attention to the improvement of the contract
China's Foreign-related Economic Contract Law clearly stipulates the terms of foreign-related contracts, which we can use to check to ensure that the parties will not dispute the contract due to negligence. When reviewing long-term agreements, possible changes should be taken into account. For example, Lianyungang Suntory Food Co., Ltd. (a), Japan Rihui Co., Ltd. (b) and Japan Suntory Co., Ltd. (c) only defined the rights, responsibilities and interests of Party A and Party B in the design task contract of malt and beer manufacturing equipment, but did not specify the obligations of Party C. Therefore, in my legal opinion on this contract, the author suggested adding the liability clause of Party C. ..
(5) Pay attention to the legality of the contract.
Only those that conform to the law are valid contracts. There are two cases of contract violation: first, the parties to the contract do not understand the law. For example, the "Serene Hotel Contract" signed by Lianyungang Telecom Equipment Factory and ARANE International Company of the United States stipulates: "Disputes that cannot be settled by the board of directors through consultation shall be submitted to the local notary office in Lianyungang, China for arbitration according to legal procedures." The notary office is a national certification body. How does it arbitrate disputes? Another example is the contract of Qiaoyun Color Printing Center mentioned above: "The chairman is the legal agent of the joint venture company". How can a legal person have a legal representative? The other is that the contracting parties deliberately violate the law. According to the provisions of the design contract of beer and malt production equipment mentioned above, Party B shall pay the income tax to the China tax authorities in accordance with the Income Tax Law of China for Foreign Enterprises and its implementing rules, but Party A must remit all the remuneration to Party B's bank in Japan first. The Income Tax Law of Foreign Enterprises clearly stipulates: "The tax shall be withheld and remitted by the paying unit according to the amount of each delivery." Therefore, this clause clearly violates China's tax law.
Three. legal advice
The legal opinions mentioned here refer to the written amendments to the contract put forward by lawyers after reviewing the contract. Including preface, text, conclusion and signature.
(1) Preface. Express the following in concise language: 1. Client, 2. The parties to the contract under review, 3. The name of the contract under review, and 4. The main work done by lawyers in reviewing contracts.
(2) the text. The text of the legal opinion should be clear, concise, focused and fully demonstrated. It is necessary to point out the seriousness of the problem and put forward a reasonable plan for modification or supplement.
(3) conclusion. The legal opinions of contract review generally end with the following words: "The above legal opinions are for the reference of the parties to this contract when revising and perfecting this contract."
(4) signing a contract. Legal opinions must be signed by the examining lawyer, generally not in the name of the law firm or the legal advisory office itself, and there is no need to affix an official seal.