Case 13 Because no management and storage contract

Plaintiff: Zhang, individual industrial and commercial households defendant Yemou, individual industrial and commercial households. In 1988 August, Yemou and Hu Zhang in the personal store about a cowboy clothing business. Both sides agreed to sell, by Miss Hu jeans 300 sets. In October, Yemou 300 jeans to Zhang's shop, and notify the Hu went to pick up, but Humou received notice after they return requirements. Yemou that goods are at Hu's request, in conformity with the agreed terms, do not agree to return. During the talks, Zhang would require them to take the goods, so as not to occupy their own space. Because the two sides under dispute, until the end of 12, both sides had reached agreement to return money. In 1989 January, Yemou to jeans. At this time, Zhang proposed, Yemou goods in his shop for 3 months, occupied space, resulting in their purchase and sales are affected, and also for Yemou were the appropriate storage, so Yemou to a certain amount of management fees. Only think, he is just the goods temporarily placed in Zhang's store for Zhang's trust, now Zhang proposed fee request is unfounded, cannot agree. Zhang this to the court, requirement Yemou pay management fees 300 yuan.

The court during the trial, the legal relationship between Yemou and Zhang deemed causelessness of debt management. The reason is: Yemou and Hu a sale and purchase agreement, the goods are shipped to the stores to Zhang, Zhang Mou Yemou interests, in neither the law nor the contract situation, the implementation of the administration's behavior for Yemou, constitute the non reason management. According to judgment Yemou Zhang management behavior to pay management fees 200 yuan.

[question]

The court qualitatively correct? Existence of civil legal relationship between what the original, the defendant?

[answer]

We think, the court of first instance is wrong for the case of qualitative. Between a party to the case and Zhang formation should be only a safekeeping contract obligation, but not because of debt management. Zhang is the custodian, Yemou lay people, but the contract between the parties is realized through the implied meaning representation. Namely: the depository that Zhang Yemou transport the goods to their stores, not the implementation of positive action, with silence that permit or accept, then the contract relationship has been established. Later, Zhang implement storage behavior is to fulfill the duty of care, and not because of management.

[D integrated]

The biggest difference between causelessness of debt management and storage contracts, one is the former neither legal basis nor contract basis, while the latter is based on the contract implementation storage behavior; two is the legal relationship, I do not know others affairs for their own affairs, and the latter law relationship occurs, is entirely caused by transaction I -- the sustenance of human active behavior.

   Case 14 The tort system, monitoring

Hu (21 years old) and Wang Mou (19 years old) one afternoon in the market around, found a sow in the streets lie. Hu and Wang said: "to play with it." The king then picked up a stone to sow. Sow smashed after take jump dash forward. When 60 years old lady Gao was walking in the street, see the sow had rushed to go to the street to flash, the street a ceramics booth to overthrow, loss value of 1000 yuan ceramics. In addition, high old lady because dodge not timely and sow down hurt his right leg, medical expenses spent, hospital fees totaling 2000 yuan.

[The problem]

(1) high old lady was dodging sows and knocked ceramic stall behavior belongs to what nature behavior? Whether they should bear civil liability?

(2) Hu Mou and Wang's behavior belongs to what nature behavior? How should bear civil liability? Why?

(3) if the local customs in animal stocking, the high cost of the old lady's broken leg who should bear the cost? Why?

(4) if Wang was 9 years old, the high cost of the old lady who should bear the hurt? Why?

(5) if Wang was 13 years old and no personal property, the high cost of the old lady who should bear the hurt? How to share the civil liability? Why?

(6) ceramics who shall bear the losses? Why?

(7) if a stone is due to chase the pig sows and the implementation of the loss is higher, the old lady injured should bear the responsibility? Why?

[The correct answer]

(1) high old lady was dodging sows and knocked ceramic stall behavior belongs to the act of necessity, should not bear civil liability. According to the "general principles of civil law" in article 129th, the emergency caused by damage, the person causing the occurrence of danger liability, if the danger is caused due to natural causes, the person who took the emergency does not bear or bear civil liability to an appropriate extent. So the old lady for high because of the damage caused by the act of rescue shall not bear civil liability.

(2) Hu Mou and Wang's behavior belongs to the common tort, Hu Mou and Wang shall bear joint and several liability. According to the "general rules of the civil law" 130th, "the general principles of the civil law" provisions of article 148th, abetting, helping others to commit a tortious act, as common tort, joint tortfeasors have caused the damage shall bear joint and several liability.

(3) if the local customs in animal stocking, high cost of injury cause old lady Hu Mou and Wang together. According to the "civil law" the relevant provisions in article 127th, animal due to fault of the third party damage to others shall bear civil liability, third. Therefore, in this case the sow hit high old lady is due to the Humou to Wang stone pig induced, Hu Mou and Wang Mou shall bear joint and several liability.

(4) if Wang was 9 years old, loss of high old lady by Hu bear. According to the relevant provisions of the general principles of the civil law as the "opinions", Wang is a person of no capacity for civil conduct, in accordance with the general principles of civil law "148th views" in the second paragraph of abetting, helping people, the implementation of the tort of no capacity for civil conduct, the instigator, to help people infringement, it shall bear civil liability. Therefore, Hu should bear civil liability.

(5) shared by Hu and Wang's guardian. Hu should bear the main responsibility. Because Wang was 13 years old, which belongs to the person with limited capacity for civil conduct, according to the relevant provisions of the "general principles of civil law", the damage caused by the person with limited capacity for civil act, his guardian shall bear civil liability. Person with limited capacity for civil conduct the implementation of the infringement of human joint tortfeasors and instigate, help, shall bear civil liability.

(6) shared by Hu Mou, Wang Mou and the pig's owner. According to the "general principles of civil law" in article 129th, if the emergency caused the damage, by the person causing the occurrence of danger shall bear civil liability. In addition, according to the "general rules of the civil law" about the damages caused by the provisions of the animal, the pig's owner due to the pig lax management, also should undertake the corresponding civil liability.

(7) by the owners to bear civil liability. Because Wang Mou stone pig is due to the pig to chase the implementation, then the behavior of Wang's emergency legality, there is no fault, at this time, according to the "general principles of civil law" in article 127th, shall be borne by the animal keeper or manager shall bear civil liability.

[Test Integration]

AboutTort,Common tortJointly and severally liable to the victim, and between the joint tortfeasors shall be in accordance with theFactors such as the degree of faultShared responsibility. But if it isInstigation,Help the person with limited capacity for civil conductThe implementation of infringement, should bearThe main responsibility.Instigation,Help a person without capacity for civil conductImplementation of infringement, do not constitute joint tort, only the instigator, help for the infringer shall bear civil liability to the victim. Animal damage caused by pests, third people take responsibility of tort, the fault of the third party damage caused by the third person, shall bear civil liability. The legal necessity, is the law exemptions emergency obstacle we shall not bear or bear civil liability to an appropriate extent. AboutCustodyIn addition, the guardianIn order to be guardians of the interests,Shall not handle the property of his ward. Because the guardian's tort should bear civil liability shall be borne, the guardian.

Case 15 Tort, common property

In September 1, 2001, a and B are two common smoke kiln to be removed. A because of something he commissioned B to hire workers to help dismantle C. In the morning B very Caution!, each removed a piece of wood to use wire bolt slowly down, from C below and then. Afternoon, B in order to speed up the pace, not with a rope tied to the wood, and the wood down directly, but did not inform C. Down in the first wood, acrylic think with a rope, no attention. The results of wood fell from another helper Ding killed.

[The problem]

(1) for Ding's death, B should bear the responsibility? Why?

(2) for the death of a Ding, should bear the responsibility? Why?

(3) for Ding's death, C should bear the responsibility? Why?

(4) what is the scope of Ding relatives may demand compensation?

(5) the civil liability in this case is what kind of responsibility?

[The correct answer]

(1) for Ding's death, B should bear the responsibility. Because this belongs to tort liability. It includes four elements: illegality; the actor has subjective fault; the victim suffers losses; a causal relationship between the loss and the illegal act. In this case, B in the wood down, did not inform C not with a rope tied, C cannot foresee wood not bolt rope, so B is at fault, it shall bear civil liability.

(2) for the death of a Ding, it shall bear civil liability. Because the smoke kiln is a and B share, according to the "general principles of civil law" in article Seventy-eighth, the common people have the property rights, obligations on Co. In this case, a tort is B to B, but a is common to all people smoke kiln, and B infringement occurred in the process of the common affairs, so also shall bear civil liability.

(3) for D death, C should not bear the responsibility. Because C for accidents can not see, nor should foresee, his subjective fault, but in general tort liability, subjective fault is one of the elements of tort liability, so C is not responsible for the death of ding.

(4) the necessary living expenses range Ding relatives may demand compensation for funeral expenses and included the Ding Ding Sheng before those supported.

(5) a and B to D relative loss held jointly and severally liable. For a and B share the internal responsibility, because B on accident fault is larger, should be borne by the B. all or major responsibility.

[Test Integration]

AboutTort,Constitute infringementHave the facts of damage; illegal behavior; a causal relationship between the two; the actor has subjective fault.The imputation principle of tortYes.The principle of fault liabilityAndThe principle of liability without faultThe former is concerned, the subjective fault as the necessary item; the latter regardless of the parties has subjective fault or not, shall bear civil liability. In addition, there arePresumed fault liability principle, refers to the litigants must prove that there is no fault of their own can not bear civil liability, or presumed fault, shall bear civil liability.But must have explicit legal provisions to apply.The principle of fairnessRefers to the damage of the parties have no fault, and not be able to apply the principle of no fault, but the victim to suffer loss if not compensation obviously unfair cases, a people's court according to the specific situation,Require the parties share the loss of fairness principle. AboutCommon propertyThe common people, property rights were shared on, assume the obligation.

The civil case law

Case 1 Jurisdiction and litigation preservation

In 1997, a county A company and B company B County entered into a contract of supply and marketing in propylene County cement. The contract agreed: "mode of transport: by A Company consignment; place of performance: A company in Ding County warehouse." A fulfill the contract, B company, A company still owed 300000 yuan loans. Four months later, B published a "substantial price cuts cement" advertisement in the local newspaper. At the same time, preparing to split into two companies. Therefore, the A company to B company's behavior influence loan repayment and B's discrete grounds, to B County People's court for property preservation before litigation, demanding a freeze on B bank deposit 300000 yuan, while providing the same amount of guarantee funds. The people's court shall make a review after the frozen deposits ruling. The B provides the same amount of property guarantee to the court, the court shall make a ruling to lift the freeze. After A company to court. A trial, the defendant counterclaim plaintiff company B requirements A company because of its application for property preservation before litigation for their losses.

[The problem]

(1) for the case where the court has jurisdiction? Why?

(2) if B company put forward the objection to jurisdiction should be put in what time? The objection can be set up?

(3) the A company can apply for property preservation before the lawsuit?

(4) B company counterclaim request is correct?

[The correct answer]

(1) B County People's court, Ding County People's court has jurisdiction over the case. See "Civil Procedure Law" provisions of article twenty-fourth. Yi County in this case is the defendant company B, Ding county is the agreed contract.

(2) the jurisdiction objection shall be raised during the submission of defence, the objection can not be established. See "Civil Procedure Law" provisions of article thirty-eighth.

(3) A company may apply for the preservation of the proceedings before the lawsuit. "Civil Procedure Law" the ninety-third paragraph of the first property preservation before litigation conditions. The law on property preservation before litigation provisions should be more strict than litigation preservation conditions. In the case of A company met the property preservation before litigation application conditions: the property in dispute is a real danger. In the case of the property in dispute is 300000 yuan loans, B significantly reduced processing cement will directly affect their solvency, pose a threat to the creditors of A company, may make the creditor can not or can not be fully realized; B, begin to prepare for the discrete behavior will make the future judgment difficult decision to perform. Meet the essential requirements for pre litigation preservation, namely, in case of emergency, if you wait until after the prosecution for property preservation, because of the subjective reason relative person could cause A damage to the interests of the company, will affect the future execution of the verdict. As an interested person A provides corresponding with the property preservation guaranty. B County People's court is the court of the place where the property is located, is also has the jurisdiction by the court of appeal. Therefore, A has the right to apply for property preservation before litigation, the court shall make a ruling is correct.

(4) B company counterclaim request is incorrect. "Civil Procedure Law" stipulates that the ninety-sixth application error has two situations: one is that after the implementation of property preservation before litigation, the applicant is not within the statutory time limit prosecution. Another case is that of the applicant in the suit. In the first case, due to property preservation before litigation by prosecution based, the applicant not according to the statutory time limit for prosecution, the abuse of this right, it is the applicant has the right to sue to the court to request the compensation. In the second case, the court, the applicant shall, relational entity rights and obligations clearly, as non rights should be compensation for the loss to the other party, which reflects the rights and obligations of the equivalence principle. The other party may file a counterclaim in the same procedure, also can be in a separate prosecution proceedings after the end. The defendant in this case is the counterclaim request v. conditions, meet the countercharge. Because in this case the defendant loses, so that property preservation before litigation plaintiff applicant is the right person, the application is correct, the defendant shall be the applicant's counterclaim request could not be established.

[Test Integration]

 On the jurisdiction of civil litigation in China, according to the provisions of the regional jurisdiction, territorial jurisdiction can be divided into general and special region jurisdiction.General regional jurisdiction, refers to the location of the parties to determine the membership relation below the jurisdiction where the court. The general procedure where the court jurisdiction by the defendant, this is the general principle of territorial jurisdiction.The special region jurisdictionThat means, subject to litigation jurisdiction determines the necessity and particularity of specific jurisdiction court.

AboutProperty preservationProperty preservation, refers to the timely, effectively protect the interests or the lawful rights and interests of the parties, the people's court in proceedings before or, according to stakeholders, the application of the parties, or active authority, compulsory measures restrictions regarding the disposition of property or transfer. The preservation of property for property preservation before litigation litigation preservation of property and.

Case 2 The advance execution

A region of Wang and sun a neighbor, ferial rapport. In 1996, Wang himself on the construction of new houses, Sohn will take the initiative to help. One day sun from scaffold carelessly fall, his leg was broken, due to the timely rescue did not cause paralysis, but need to do an operation to rehabilitation. The hospital to let the sun to pay 7000 yuan medical expenses, Sun Mou impoverished to delivery, Wang has the ability to pay but paid 2000 yuan after refusing to pay. Medical expenses is not available, the operation can't be executed. The sun had no choice but to a District People's court, and for Wang to pay 5000 yuan medical expenses. Wang privately to Sun Jiang: "you apply for advance execution, the court will let you offer a guarantee. You don't have the money to provide guarantee, the court will not support your request." The examination of the people's court that sun the request does not comply with the legal conditions, the court rejected the first execution in application, Sun Mou therefore did not receive timely treatment. The people's court has accepted the case, Wang moved to B, so Wang put forward the objection to jurisdiction, request trial by B District People's court. After the people's court adjudicated Wang burden Sunmou medical charges totaling 11000 yuan.

[question]

(1) in this case, the people's court rejected the sun Mouxian execution for legal?

   (2) sun for prior execution should provide guarantee?

   (3) if the sun to reject the application for reconsideration refuses to accept it? .

   (4) Wang proposed jurisdiction objection is correct?

[The correct answer]

(1) the people's court ruled illegal. "Civil Procedure Law" provisions of article ninety-seventh of the applicable scope of cases of prior execution system. In the case of a sun Wang recourse to medical expenses, in accordance with the prior execution scope.

(2) sun for prior execution is not must provide guarantees. See the "Civil Procedure Law" the ninety-eighth paragraph second. Legal provisions of the guaranty is a "can" rather than "must". This is because the prior execution system is designed to solve the life or production management, urgent difficult, if the applicant shall provide guaranty, it is obviously difficult to do. But the application is not will bring damage to the rights of people, must provide security is at odds with the purpose to make such applicant.

(3) sun can not apply for reconsideration. "Civil Procedure Law" provisions of article ninety-ninth, is dissatisfied with the ruling including affirmative determination and negative ruling appealed, it shall allow the applicant to apply for reconsideration. In the case of a sun to reject the request for decision may apply for reconsideration.

(4) Wang jurisdiction objection is wrong. See "the Supreme People's Court on the application of the civil procedure law '' opinions on several problems of" the thirty-fourth stipulation.

[D integrated]

With regard to enforcementThe advance execution, is refers to the people's court in the process of dealing with cases, where a party of production or life of the urgent need, in a ruling, ruling party to pay the other party a certain property, or immediately or stop some kind of behavior, and the immediate execution measures.

The people's court may, according to the specific circumstances of the case, and whether the applicant has the ability to provide Party to decide whether to require the applicant to provide a guarantee.

The parties to the prior execution ruling disaffected, can apply for the ruling People's court a review, but during the period of reconsideration, the execution of the ruling shall not stop.

In addition, the use of advance execution shall also meet the following conditions. First, the relationship between the rights and obligations clearly. In the case of disputes between parties to the facts are clear, the rights and obligations clear, specific cases. Second, there is an urgent need to exercise the right of the applicant. Medical expenses if not promptly resolve will make the operation can not be timely, resulting in sun cannot be recovered, there is urgent objective. Third, the respondent has the ability to perform. In this case the respondent is its ability to perform. Fourth, must submit an application by the parties, the court to accept the case but before the final judgment is made. In this case the parties application complies with legal limits and conditions, the court rejected the prior execution is not legal ruling.

Case 3 Common litigation and representative litigation

Chen died, the relatives of the dead ashes were kept in a green funeral, to pay an annual hosting fee of ten yuan. The deceased Chen relatives except his brother Chen Jiawai and his wife, Queen, his son Chen Sheng, his parents, old Liu, his brother Chen Yi, his younger sister Chen Bing. Every year the gala of the above personnel all to the funeral parlor to grief. In 1999, relatives of the deceased to worship, is the undertaker told ashes have already lost relatives, the causer of abnormal pain. After all, looking for invalid, 2000 December, Chen Jia to the people's court proceedings, that lost their relatives funeral ashes, great suffering to the funeral home, ask for compensation. The people's court accepted the case, after hearing that the funeral parlor staff negligence of the plaintiff's elder brother's ashes lost, causing pain to the plaintiff, funeral parlour shall compensate. The court presided over the mediation, the parties voluntarily reached a settlement agreement: compensation by the funeral home Chen 1500 yuan, Chen Jia agreed to withdraw the prosecution. The people's court shall order to approve the withdrawal of prosecution chen.                            

[Problem]

(1) if Chen Jia has the qualification of subject of action?

(2) whether a people's court shall notify the other close relatives, Chen to participate in the litigation? If it shall notify the litigation status, how to Chen's near relatives?

(3) the close relatives are assumed Chen to participate in litigation, they can take the representative litigation way?

(4) the people's court closed way is correct?

[The correct answer

(1) Chen Jia has the qualification of subject of action in this case. This involves the conditions. In general, close relatives of the deceased is the most intimate relationship with the deceased person, the largest death blow to their spirit, they have a direct stake in this case people, because such cases of litigation subject should be limited in range near relatives. Law does not provide for such cases brought by those who only near relatives, or limit the prosecution order, so that all close relatives shall have the right to litigate. Chen Jia in this case is the younger brother of the deceased, belongs to the close relatives of the deceased, should be considered by the lawsuit is not wrong. Therefore, Chen has the qualification of subject of action in this case.

(2) the people's court shall notify the other close relatives, Chen to participate in the proceedings. Chen's relatives should be based on the identity of the plaintiff in litigation. Chen's other close relatives, also because of lost the ashes of the deceased suffer mental shock, is directly interested party in this case, they are common and Chen relationship between rights and obligations, which belongs to the necessary joint action. Therefore, the people's court shall notify the other close relatives to participate in the proceedings. They should also have the plaintiff.

(3) if Chen's relatives were involved in litigation, they can not take the representative litigation.

(4) the people's court closed way is not correct. In this case the mediation is carried on under the auspices of the people's court, and the parties reached a settlement agreement, it does not belong to the settlement, is in the lawsuit mediation. So, the people's court shall by mediation, and should not be closed in the ruling to approve the withdrawal way.

[D integrated]

In civil litigationParty, refers to the disputes occur from civil rights and obligations, action in its own name, directly interested party and the people's court at.

So-calledJoint actionThat is, when one party or both parties for the above two people litigation. Joint action is divided into two kinds, namely the necessary joint action and the common joint action. In the course of legal proceedings, must be a joint action if the parties do not participate in the proceedings, the people's court shall notify them to take part in the proceedings.

The litigation representativeThe number of groups, namely in the litigation party representative, a party number, generally refers to more than 10. "Civil Procedure Law" the fifty-fourth regulation, "the Supreme People's Court on certain issues concerning the application of Civil Procedure Law > < opinions" provisions of article sixty. Close relatives in the case of litigation Chen meets the legal requirements of the representative litigation conditions in other conditions, but the number of the total above the plaintiff is not up to the interpretation of the civil procedure law required ten requirements, so can not be representative litigation.

Case 4 The jurisdiction of the court of second instance and the necessary common lawsuit people joined the property preservation

On 26 January 1998, Xi'an city A District Industrial and Commercial Bank of China and the lofty Thermos Flask Factory, red furniture factory sign a written loan guarantee contract. The provisions of the contract by the Xi'an: Industrial and Commercial Bank of China A lend Thermos Flask Factory 150000 yuan, the period from January 1998 to January 1999 26 26 date, by the red furniture factory as a guarantor. They also agreed in the contract: if a dispute in the future, under the jurisdiction of the Xi'an city A District People's court. The loan is due, Xi'an city A District Industrial and Commercial Bank of China many times to the thermos bottle factory bombarded, thermos bottle factory has defaulted; and many times to guarantee red fortune furniture factory bombarded, furniture factory also refused to repayment. In March 8, 1999, Xi'an city A District Industrial and Commercial Bank of China to the red furniture factory to the West City A District People's court.

[question]

(1) Xi'an city A District People's court have jurisdiction? Why?

(2) a thermos flask factory should participate in the proceedings? What is his legal status in the litigation?

(3) if the thermos flask factory did not participate in a trial, after the first trial, furniture factory appeal to a higher people's court, the people's court at a higher level after accepting the case should be how to deal with?

(4) if the Xi'an city A District Industrial and Commercial Bank of China is the verdict of the first trial appeal before the people's Court of second instance, receiving the case, the industrial and Commercial Bank of China found the furniture factory has hidden property, to which the people's court for property preservation?

[answer]

(1) Xi'an city A District People's court has jurisdiction over the case. Provisions of the criminal procedure law of twenty-fifth civil: "the parties to a contract may agree to choose in their written contract 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." In this case, A District, Xi'an city as the industrial and Commercial Bank of domicile, the plaintiff and the furniture factory, thermos bottle factory agreed in the contract of A District Court in Xi'an city as the jurisdiction of the court is legal, don't violate regulations, to the jurisdiction of the civil procedure law, therefore, Xi'an city A District Court has jurisdiction over the case.

(2) the guarantor thermos bottle factory shall participate in litigation, its status is a co defendant. Application of civil procedure law opinion fifty-third stipulates: "because of the guarantee contract lawsuit, the creditor to the grantor and grantee also claims rights, the people's court shall grantor and grantee as a co defendant; creditor against the guarantor, the contract clearly agreed the guarantor to assume joint responsibility outside, the people's court shall notify the warrantee as a co defendant in litigation." In this case, Xi'an city A district and commercial bank creditors only prosecution guarantee furniture factory, but they signed the contract did not specify the furniture factory shall bear joint and several liability, therefore, the guarantor shall participate in litigation Thermos Flask Factory, its status is a co defendant.

(3) the people's court at a higher level may be mediation the parties on a voluntary basis, if the mediation fails from Xi'an city A District People's court for retrial, the retrial of the ruling did not list the thermos flask factory to be additional party. Application of Civil Procedure Law on the provisions of article 183rd, must participate in the proceedings did not participate in the action in the first instance, the people's Court of second instance shall mediation the parties on a voluntary basis, if the mediation fails the retrial, retrial ruling not listed shall be added when the thing person. In this case, the thermos bottle factory is guarantee, guarantee the contract did not agree that the surety shall bear joint and several liability according to the provisions, apply to the Civil Procedure Law of opinion fifty-third, guarantee thermos bottle factory is must participate in the proceedings. Therefore, if the thermos flask factory did not participate in a trial, after the first trial, furniture factory appeal to a higher people's court, the people's court at a higher level may be mediation the parties on a voluntary basis, if the mediation fails from Xi'an city A District People's court for retrial, retrial jurisdiction of the book not listed thermos bottle factory should additional party.

(4) adapted when A District People's court for property preservation to the Xi'an city. The provisions of the civil procedure law opinion with 103rd parties, the verdict of the first trial appeal the case, before the people's Court of second instance receiving the case, the parties have transfer, conceal, selling or damage to property and other acts, must adopt measures for the preservation of property, the people's Court of first instance applied for by the parties or the authority to take. Therefore, in this case, if the people's Court of second instance before receiving the case, the industrial and Commercial Bank of China found the furniture factory has hidden property act, shall apply to the Xi'an city A District People's court for property preservation.

[Test integration]

About to parties not to participate in the litigation in the first instance cases,Treatment of the second instance court. The Civil Procedure Law on the provisions of article 183rd, must participate in the proceedings did not participate in the action in the first instance, the people's Court of second instance shall mediation the parties on a voluntary basis, if the mediation fails the retrial, retrial ruling not column should additional party.

The jurisdiction of the court on property preservationThe verdict of the first trial, the parties appeal cases, before the people's Court of second instance receiving the case, the parties have transfer, conceal, selling or damage to property and other acts, must adopt measures for the preservation of property, the people's Court of first instance applied for by the parties or the authority to take.

Case 5 Types and status third litigant

In 1998 9 months in a county died, life in the three cottage B County lived by their son Yu to take over. Based on the original Yu house with two layers of three houses, Yu Da family moved to live. Yu big brother Yu Er that housing is the father, he shall have a lawsuit to the people's court, and claim its ownership, half on father's heritage. When the defendant and the plaintiff housing segmentation under dispute, more than its cousin brother returned from overseas, but also to the court house property requirements. Yu brother said dispute is not more than a heritage, but more than brother before going abroad to lend more than a living. Since then, Yu Yu Er will not give more than some accommodation, has nowhere to ju. Yu brother run all the procedures to go abroad, put forward to let more than a residential and be responsible for house, to be more than brother returned again to return, Yu Mou agreed. Therefore, Yu brother asked to join the action, that the two sides for the real estate property right is to enjoy themselves, the original defendant has no right to division of property, and large buildings to more than compensation for their losses. The people's court agreed to more than brother to participate in the proceedings. During the court debate, study found that more than big litigation agent is the judge's wife, so ask the presiding judge avoided application. At the end of the court debate, the plaintiff Yu Er personally submitted to the people's court to withdraw the application. The people's court, the plaintiff Yu Er withdrawal, a decision to terminate the trial.

[Problem]

(1) has jurisdiction to the case where the people's court?

(2) more than brother have the right to participate in the litigation? Them to take part in the proceedings, shall have the litigation status how?

(3) during the court debate, Yu Er can apply for withdrawal?

(4) for the study of the petition the people's court shall do?

(5) the people's court to approve the withdrawal method is correct? What are the changes in withdrawal after the third party with independent claim to the position?

[answer]

(1) the people's court has jurisdiction over the case for B county. See "provisions of the civil procedure law" article thirty-fourth of the first item.

(2) more than brother had a right to the third party with independent claims identity to participate in the proceedings. The third party with independent claims refers to the object of action between others claim there are independent, and puts forward the independent litigation request to participate in the proceedings to the third party.

(3) Yu Er can during the court debate to apply for withdrawal. See the provisions of China's "civil law" article forty-sixth.

(4) the people's court shall decide the presiding judge avoidance, and the case is adjourned. Application for withdrawal is legal, need at least two conditions, one is to avoid the reason, two is the correct time. In this case, the relationship between husband and wife the defendant lawyer and the members of the collegial panel, which belongs to one of the reasons for avoidance of legal. The plaintiff hereby apply for withdrawal, the reason is legitimate, the first condition. But because of the reasons in court after that, thus put forward before the end of court debate, is legal at the time of the. Therefore, the plaintiff applies for withdrawal reasons, legal form, the court should be permitted. On the basis of the provisions of China's "civil law" in article 132nd, a party to apply for withdrawal, the trial may be adjourned.

(5) the people's court shall permit the withdrawal of more than two. Yu brother by third people to the plaintiff, Yu Er, Yu Daze become the defendant. See our "Civil Procedure Law" in 131st the first paragraph and the "Supreme People's Court on the application of civil procedure law '' opinions on several problems of" the 160th stipulation. As for the provisions of the law "litigation separately", should be understood as the lawsuit to have the independent claim to the third people in the litigation plaintiff, original, the defendant.

[D integrated]

Third people are divided into two kinds: one isThe third party with independent claimsAmong others, the object of litigation, whether all or part of the rights of the people, as a separate entity qualification, litigation request and to participate in the litigation of people. TwoThe third party without independent claimAmong others, the object of litigation, no independent entity right, just join a party type lawsuit, to protect their own interests.Position independent claim to the third person in the proceedings of the equivalent of the plaintiffIn this procedure, the plaintiff and defendant as a defendant.

In order to have the right to request an independent third party identity to participate in the litigation shall conform to the following conditions: 1, must be between others v. ongoing; 2, must according to the object of action proposed independent litigation request; 3, must be based on the original, the defendant lawsuit co defendants; 4, must be submitted to the jurisdiction of a people's court this procedure. In this case, Yu brother thinks he is owner of the house, and put forward independent claims on the housing to the people's court in the proceedings. According to the third party with independent claims conditions.

Case 6 Summary procedure

Lee missing for years, his wife Liu difficult life, desire and Wang wedding. Bring a lawsuit to a people's court to have the jurisdiction, request the people's court for a divorce. The people's court in September 31, 1998 sent the court accepted the case and summary procedure applies to the trial of the case by the Judicial Yuan Lin, a single judge, at the same time as the record. In the process of trying to find his wife, Lee home, another sweetheart, also want to divorce. In the trial, Liu proposed segmentation Lee in missing the property. The people's court after the trial, the court verdict: Liu Li and divorce judgment. In January 10, 1999, the court delivered the judgment to the parties, the people's court verdict stamped seal. During the appeal in Liu appeals.

[Problem]

(1) the people's court in this case whether summary procedure?

(2) the summary procedure in this case there are provisions which aspects and law inconsistent?

(3) the people's court for Liu in the duration of action proposed Lee went missing during the property litigation request should be how to deal with?

(4) the people's Court of second instance should be how to deal with this case?

(5) if the case was remanded to apply summary procedure?

[answer]

(1) the people's court is not applicable to the trial procedure. See "the Supreme People's Court on the application of the civil procedure law '' opinions on several problems of" the provisions of article 169th. In this case the defendant in the people's Court of the people One's whereabouts is a mystery., not for summary trial.

(2) application of simple procedure in civil cases, trial by a single judge alone. But there must be a clerk for record, shall not be self recording. The people's court shall accept the case in January 10, 1999 September 31, 1998, closed, more than the provisions of the law the longest period of trial procedure of three months. The judgment shall be sealed by the people's court official rather than the people's court official. See "the Supreme People's Court on the application of the civil procedure law '' opinions on several problems of" the provisions of article 172nd. See the provisions of China's "civil law" article 146th. See "the Supreme People's Court on the application of the civil procedure law '' opinions on several problems of" the provisions of article 173rd.

(3) the procedure of first instance, the plaintiff may increase the litigation request. According to the provisions of China's "civil law" in article 126th, added to the lawsuit, the people's court may adjudicate. In this case, the plaintiff in the trial proposed the segmentation Lee went missing during the property, increase this belongs to the lawsuit request. Due to this request and other claims are based on the same legal relationship of marriage, the court shall be on trial. But the court the plaintiff's request not to trial, which is inappropriate in the procedure.

(4) the case not for summary trial, and the people's court in multiple bugs in the trial process, may influence the justice of the case should be remanded. See the provisions of China's "civil law" article 153rd fourth.

(5) refer to "the Supreme People's Court on the application of the civil procedure law '' opinions on several problems of" the provisions of article 174th.

[D integrated]

Summary procedureSimplified ordinary procedure of first instance procedure, is a basic people's court and the tribunals dispatched by it when trying a simple civil case by the use of the program.

The scope of application of the summary procedure: simple procedure applies to inherit the people's court and tribunal dispatched by it to hear the case. The facts are clear, simple civil case duty clear, less controversial rights to use simple procedure.

Characteristics of the summary procedure:   The prosecution way is simple, the plaintiff may indict verbally. To summon the parties, notify the witness is simple. A sole judge. The trial procedures are simple.

Case 7 Exclusive jurisdiction

Liu Deren has three children. Son Liu Haiyang, daughter Liu Haiyan, daughter Liu Haiou. Liu Deren's wife Wang Shuyan died five years ago due to illness; daughter Liu Haiyan married in Shahe County in 1994, and worked there; daughter Liu Haiou in 1996 to marry to Nanping County, along with her husband to the water after work, and live there. Son of Liu Haiyang and the old man living in a common home Anming county. In August 11, 1997, Liu Deren in on the way in the unfortunate event of a car accident, leaving the house six, Liu Haiyan and Liu gull in rushed to, very sad, not with Liu Haiyang mention inheritance. In December 10, 1997, Liu Haiyang went to the river fishing alone, because the ice is not solid, fell through the ice, with nobody around to the rescue, Liu Haiyang unfortunately drowned. In February the following year, Liu Haiyang's wife, Shen Aihua will be a six saving in leave live, the rest five sold to the villagers Li Daming. Soon, Liu Haiyan know this matter, then to the court, asked to confirm her ownership of houses.

[question]

(1) under the jurisdiction of the case by which courts? Why?

(2) who in this case shall participate in the proceedings? What is their litigation status of each?

[answer]

(1) the case shall be under the jurisdiction of Ming County People's court. It belongs to the exclusive jurisdiction, and general non territorial jurisdiction. "Civil Procedure Law" the thirty-fourth stipulation: "the real estate dispute lawsuit, the immovable property is located under the jurisdiction of the people's court." Houses belonging to the immovable property, therefore, the case shall be under the jurisdiction of the immovable property is located on the county people's court.

(2) Liu Haiyan, Shen Aihua, Li Daming should participate in the suit. Liu Haiyan thought Shen Aihua violated the ownership of the house and to the people's court, should be in the plaintiff. Shen Aihua was claimed violated Liu Haiyan's ownership housing, should be in the position of defendant. Li Daming belongs to the third party without independent claim. The so-called third party without independent claim is that he disputes litigation does not have an independent right of claim, but the result of case law and have the interests of the people. In this case, Li Daming for all legal relationship disputes between Liu Haiyan and Shen Aihua, not all or part of independent claim, but the outcome of the case and he has a direct interest, if Shen Aihua loses, his interest will be affected. Therefore, in order to safeguard their own interests, Li Daming as the third party without independent claim shall participate in the proceedings, and that will help the case fairly quickly, hearing. As the people's court, also can inform Li Daming to participate in the proceedings. In this case, for Liu Haiou, the court may ask for their opinions, such as expressly waives the right of inheritance, she can not participate in the suit; if not expressly waived or express not to give up, Liu Haiou should participate in the proceedings as co plaintiffs, to protect their own rights and interests.

[D integrated]

AboutExclusive jurisdictionWhether the provisions of the law, the compulsory and arbitrary standard, can be divided into jurisdiction, exclusive jurisdiction and protocol.

Exclusive jurisdiction, is refers to the specific cases to determine which belongs to the special court jurisdiction. According to the provisions of the Civil Procedure Law of China thirty-fourth, consists of the following three kind of action belongs to the exclusive jurisdiction: on immovable property jurisdiction; jurisdiction of the port operation procedure of litigation jurisdiction; inheritance.