Analysis of the civil case litigation homework answer

2007 homework 1

Li Chun and Du Mou of husband and wife, two people live with family radio factory building Chengguan District of a city, but in the home B suburb of 6 rooms, living by his eldest son Li Ming. In 1996 Li Chun and his wife in a car accident died. The old man's daughter Li Mei married, living in a city. The old man's second son Li Ke (17 years old) in 1998 on a university B, because the University from Li Ming's past, Li Ke was asked by his wife Zhang Li Lee will parents left room for a live. Zhang Li said: "Li Ming because of the crime has been sentenced to five years in prison, not at home, you can't call the shots; and there are 4 rooms have been leased to Party A, Liu, the term is not full, not Teng fang." In a dispute, Li Ke asked a court, request the division of parents left the room.
A court accepts the case, in the trial of Li Ming, Li Ke was found except two heir, and the old man's eldest daughter Li Mei, Li Na the two heir. The court notice, Li Mei explicitly waives the right of inheritance, not to participate in the proceedings; Li Na is not clear waivers, unwilling to participate in the proceedings.
In the first trial court case after case to a court, find, said the 6 room Li Ming couples now living together with the business in 1948 when Li Chun bought together, their own half of the property, and submitted the purchase of two common signature of the real contract to the court.
Q: (1) under the jurisdiction of the case by which courts? Explain the reason.
(2) make sure the litigation status of the personnel, and explain the reasons.

Answer.

(1) in the case of the jurisdiction in the jurisdiction of residence in Li Chun a Chengguan District Court or heritage housing location B city court. Reason: because the inheritance lawsuit, by the time of his death was the main legacy is his domicile or under the jurisdiction of the people's court
(2) the plaintiff: Li Ke, the defendant: Li Ming, Li Na, the third party with independent claim: an outsider. Li Mei said to give up the right of inheritance and so can not become the defendant, Li Na did not express waiver, the court should be added as a defendant

Job 2

Zhang San, four, two brothers, and have been married for many years, four cottage living together in the ancestors left. Last year a four share of a set of two bedroom apartment, four one home will house after the renovation, to prepare for a married son.
Zhang San believed that a four share of new homes should be removed, because their parents died, his brother Zhang Si to Heilongjiang to jump the queue and fails to provide for the aged of obligation. The father dying said that four houses in the future be inherited by Zhang San, Zhang four can be inherited the painting.
When Zhang San proposed to let Zhang Siban go, Zhang Sibu agreed to, so a three to the people's court, asked to confirm this four houses to the all, and for any piece of Siteng real. Zhang Si said in reply: Zhang San has inherited some of the antique father left, you should not inherit the four houses, request the people's court sentenced the four houses to the all, and requires a Santeng real.
In the lawsuit, Zhang San, Zhang four uncle Wang Enyi to the people's court arguing that the four house belonged to him, and show his father left a will to the people's court. But in the case of trial, four because of heated air, brain death, sudden cerebral hemorrhage. Three see his brother is dead, do not drop the to the people's court.
Q: (1) in the case of Zhang Si, Wang Enyi, Zhang San, the litigation status of what? And explain the reason.
(2) after the death of Zhang Si, the procedure should be how?
(3) Zhang San withdrawal should be what procedures?

Answer: 1, Zhang San in the original position. Zhang Si defendant. Wang Enyi is in the independent claim third party in litigation status.
2, proceedings shall be suspended. According to the "Civil Procedure Law" the 136th paragraph, any of the following circumstances, suspend litigation: one party dies, need to wait for the heir to indicate whether to participate in the proceedings;
3, whether to allow the court ruling. Sentence according to the "Civil Procedure Law" provisions of article 131st, ago, plaintiff applies for withdrawal of the case, the people's court shall decide whether to grant.
The people's court decides not to approve the withdrawal of the plaintiff, having been served with a summons, refuses to appear in court without justified reasons, may make a judgment by default.

Job 3

A A company (buyer) and ethylene B company (Supplier) signed a contract for the sale, the amount of 4000000 yuan. The contract performance is a port city, C. In addition, the contract also agreed: "dispute resolution and matters, by the local relevant departments." After the goods arrived at a port of a port respectively and Ding Bing city. As the goods defects and quality problems, A company and B company disputes. A company to B company as a defendant in the first suit, a city, a District People's court to hear the case, after a court in the city court the case. Here, B company to A company to tell the C is a District People's court, after the hospital and to transfer the case to the higher court.
Answer the questions and briefly explain the reasons
(1) the case should be where the exercise of jurisdiction by the court?
(2) a certain district court with jurisdiction by agreement by the admissibility of the case is correct?
(3) a court in the city proper for this case?
(4) in a district court a hypothetical not hearing the case, a court in the city after the trial, B company can put forward objection to jurisdiction?
(5) if B has a certain district court to put forward objection to jurisdiction, but the court has no jurisdiction to make before the ruling, B company lawyers to marking, entrust formalities and inquire about the date of the hearing, whether as a B company action, and has to give up the objection, accept the jurisdiction?
(6) if A company also to C a District People's Court level jurisdiction put forward objection to jurisdiction, the district court if the objection, please make a ruling, the case will be transferred to the superior court?
(7) if the case involves the third party with independent claim of C company, and the court and C City Court a city, according to the authority informed C to participate in the proceedings. At this time C can decide not to appeal proceedings, and filed a lawsuit in a court Ding City?
(8) if only by a court in the city to the exercise of jurisdiction, and make effective judgment, B company to the jurisdiction objection rulings and judgments together after the appeal, court held that the jurisdiction is wrong, whether through trial supervision procedure corrected?
(9) in this case, a court and C City Court has jurisdictional disputes, how to solve?

Answer: C 1, city court. According to the "Civil Procedure Law" article thirty-fourth of the following cases, by the provisions of the people's court exclusive jurisdiction:
(a) because the immovable property dispute lawsuit, by not moving under the jurisdiction of the people's court in the locality;
(two) brought on a dispute over port operations in the litigation, the port is located under the jurisdiction of the people's court;
(three) for inheritance lawsuit, by the time of his death was the main legacy is his domicile or under the jurisdiction of the people's court.
2, do not correct. According to the "Civil Procedure Law" the twenty-fifth parties to a contract may specify in writing the contract choice at the domicile of the defendant, the contract jurisdiction, the contract is signed, the plaintiff's domicile, the subject matter of the local people's court, but not in violation of the provisions of this Law regarding jurisdiction by level and exclusive jurisdiction.
3, not appropriate. In this case because of jurisdiction belongs to the C a port where the court.
4, you can. According to the "Civil Procedure Law" article thirty-eighth cases handled by the people's court, the parties have objections to the jurisdiction shall, during the period for submitting briefs. The people's court shall review. Objection, order to transfer the case to the people's court jurisdiction; if not, the court rejected.
5, not as. Because if that no objection to the establishment, B company must respond, in order to prevent the court unprepared and causes the lawsuit against B, have the right to entrust lawyers to marking, entrust formalities and inquire about the date of the hearing.
6, can not. Shall be submitted to the superior court appointed management, shall not transfer. According to the "Civil Procedure Law" the thirty-sixth people's court finds that a case it has accepted is not under its jurisdiction, it shall transfer the case to the people's court having jurisdiction, the people's court shall accept the case, the people's court in accordance with the provisions of the transferred case is not under its jurisdiction, it shall report to the people's court at a higher level to designate the jurisdiction shall not transfer the case again.
7, you can. Third party with independent claim to the plaintiff status in the litigation, enjoy the plaintiff. According to the "Civil Procedure Law" article fifty-sixth the object of action of both parties, third people believed to have the right to request an independent, have the right to bring a lawsuit.
8, we should. According to the "Civil Procedure Law" article 177th the people's courts at all levels of the hospital in a legally effective judgment, ruling, mistakes are found, that the retrial necessary, shall be submitted to the judicial committee for discussion and decision.
9, the two parties to the dispute through consultation; if consultation fails, they shall request their common superior people's court for the designation of jurisdiction.
"The people's court according to the civil procedure law" article thirty-seventh jurisdiction due to special reasons, unable to exercise the jurisdiction, the people's court at a higher level to designate the jurisdiction.
The people's court jurisdictional dispute between the two parties to the dispute, negotiation; if consultation fails, they shall request their common superior people's court for the designation of jurisdiction.

Job 4

1 Beijing Shida company and the Taiyuan power plant in Taiyuan City, the purchase and sale of a turbogenerator contracts. The contract agreed: Beijing Shida companies offer for Taiyuan power plant steam turbine generator set, and is responsible for installation, installation and debugging for Taiyuan power plant. After signing the contract, Beijing Shida companies on the afternoon of the same day in Taiyuan and the Tangshan post office machine general factory signed a purchase and sales contracts, agreed to by the Tangshan Motor Factory supply Beijing Shida company turbogenerator set, installation and debugging for Taiyuan power plant. Turbine generator is installed and put into operation, the Taiyuan power plant restructuring, has no payment in accordance with the contract to the Beijing star company, the Beijing star company has failed to pay Tangshan motor factory. So, Tangshan motor factory to a district in Taiyuan, the people's court, the indictment will Beijing Shida companies listed as a defendant in this case, the Taiyuan power plant as a case of third people.
Trial analysis:
(1) in a district of Taiyuan City People's court has no jurisdiction in the case? Why?
(2) the Taiyuan power plant will become the third people? Why?

Answer: 1 because of the contract for the purchase and sale contract, and fails to perform, so as to fulfill the court having jurisdiction agreement. (because the contract did not, so why not simply because of the performance of the contract)
2, according to the relativity of contract, Taiyuan power plant and Tangshan motor factory is not the actual contract relationship, but in fact, there is no interest, not to become the third man

2, Zhang Jun, and Yang Xiu got married in 1990. Shortly after the marriage of Zhang Jun is to study and to remain in the United states. At the beginning of 2000, Yang Xiuyi Zhang Jun long stay abroad, both sides can not live together on the grounds, to the people's court A District of Qingdao City, their resident, and Zhang Jun divorce. Qingdao A District People's court accepted the case, the indictment copy to Zhang Jun, asked Zhang Jun to sue the state copy within 15 days from the receipt of a copy of the reply and kicker. Upon the expiration of the term, Zhang Jun fails to submit pleadings, nor entrust an agent to participate in litigation, Qingdao city A District People's court granted the divorce decision. Judgement wrote: "if refusing to accept the decision, the next day in the verdict within 15 days from the receipt of the petition and copy of the court, appeal to Qingdao City Intermediate People's court." The verdict delivered fourth days both parties, Qingdao city A District People's court in the legal instruments of inspection, found that the case has serious errors in the trial. I would like to ask: what problems exist in the case in the trial? How to correct?

Answer: 1, the 248th defendant has no domicile in the people's Republic of China, the people's court shall serve a copy of the indictment, and notify the defendant upon receipt of a copy of the indictment made within thirty days after the pleadings. The defendant requests an extension of the time limit, it shall be decided by the people's court.
The 249th has no domicile within the people's Republic of China, the people's Court of first instance judgment, ruling, right in the judgment, ruling within thirty days from receipt of the appeal book. The appellee on receipt of a copy of the appeal petition shall present a written reply, in thirty days. If the parties can not within the statutory period to file an appeal or submit a statement of defence, apply for an extension, it shall be decided by the people's court.

2, divorce should be both parties present.