1,Beijing City second prosecution branch v. Cheng Shaozhi bribery case (criminal); trial; the Supreme People's Court of Beijing; national staff, taking advantage of his position, to seek benefits for others, accepting others bank card and change the password, to the time of the incident is not the actual payment card deposit, but subjectively obvious intent the illegal possession, shall be deemed received money behavior has ended, constitute the crime of bribery. 2004.1.
2,The executor agent agreement disputes to the Qiong et al v. Zhang Fengxia et al (Civil); the second; the Shaanxi Provincial Higher People's court; the executor in the testator not clear its execution will reward situation, voluntarily sign acting agreement with heir execution will related matters, and in accordance with the charge will execution fee agreement, do not belong to the lawyer law thirty-fourth prohibited in the same case as the agent of the parties, shall be admitted]= agent agreement. 2004.1.
3,Hing Company v. Pujiang customs administrative compensation case (administrative); the second; the Shanghai Municipal Higher People's court; according to the State Compensation Law Article twenty-eighth (seven) provision, illegal administrative behavior of the administrative organ of property rights of administrative relative person and causes damage, it shall give compensation in accordance with the direct loss, but not confirmed uncertain interests can not be used as a direct loss. 2004.1.
4,Henan province Qinyang City People's Procuratorate Su Yuping deliberately leaking state secrets cases (criminal); the second; Jiaozuo City Intermediate People's court; the criminal defendant lawyer during served as counsel, evidence material will be obtained through legal procedures for the parties to the relatives, not deliberately leaking state secrets. 2004.2.
5,Dispute over compensation for Party Kincaid v. Tongan hospital medical damage (Civil); Xiamen City Intermediate People's Court of second instance; health behavior; risk if with the consent of the consent of the patients and their relatives, by patients and their relatives assume risk responsibility. 2004.2.
6,Xun Yi Co. v. Sun company property ownership dispute (Civil); the second; the Shanghai Municipal Higher People's court; the parties malicious collusion, concealing the facts, reasons for action against the weaving, "honesty and credit of the people's Republic of general principles of the civil law" stipulates that the fourth principles, should bear the corresponding legal responsibility. 2004.3.
7,Denghai Co. v. Laizhou Institute of infringing the plant variety rights dispute case (Civil); a trial; Hohhot City Intermediate People's court; without the permission of varieties, not because of scientific research and the large-scale cultivation and protected plant species are identical or non hereditary variation of crops, and can not be confirmed that the crop belonging to the new plant varieties, in violation of the "Regulations of the people's Republic of China of New Plant Varieties Protection Ordinance" in article sixth, shall bear tort liability. 2004.3.
8,Construction project planning permit disputes issued the 182 people such as Shen Xixian v. Beijing Municipal Planning Commission (administrative); the second; the Beijing first intermediate people's court; according to the environmental protection act thirteenth stipulates the construction project approval, pollution of the environment planning department, provide relevant environmental impact report for Fang Mei, and construction projects not in accordance with the relevant national standards, which issued a construction permit behavior, constitutes a violation of the law, it shall be revoked. 2004.3.
8Shanghai Jingan District people's Procuratorate v. Zhu Jianyong vandalism case (criminal); a trial; Shanghai Jingan District people's court; the defendant to xiesifen, invade other stock trading accounts and change passwords, in others stock trading account, using high into a low stock means, causing a huge amount of capital loss behavior, constitute article 275th of the criminal law on the crime of intentional damage to property. 2004.4.
9Agricultural Bank of Chinese Huijin branch v. Zhangjiagang polyester fiber factory of subrogation dispute case (Civil); the second; Jiangsu Province Higher People's court; the debtor in the debt is due, not to litigation or arbitration to the secondary debtor claim the creditor's right, but with the secondary obligor signed an agreement to extend the performance of debt maturity, damage the creditor's rights, belongs to contract law article seventy-third provisions of the failure to exercise due creditor's rights behavior, the creditor can be their own subrogation, between the debtor and the secondary debtor specific debt amount is determined, does not affect the exercise of the right of subrogation. 2004.4.
10The 18 people such as Xuan Yicheng v. Quzhou City Land Resources Bureau to recover the land use right of administrative dispute case (administrative); a trial; Quzhou Kecheng District People's court; administrative organs in the implementation of the specific administrative act in accordance with the law, that the law only name basis, specific laws on the basis of no description, and cannot prove its specific administrative act in accordance with what specific provisions of law, constitutes a violation of the law, it shall be revoked. 2004.4.
11Shanghai people's Procuratorate second branch v. Wang Yibing corruption (criminal); the second; the Shanghai Municipal Higher People's court; in the enterprise restructuring process, the staff of state-owned enterprises with appointed position in public in the state-owned, collective joint ownership enterprises in the state-owned, collective, joint venture of public property is transferred to the personal share system enterprise oneself and family holdings and illegal possession, shall be deemed to constitute the crime of corruption. 2004.5.
12Yang Qiaoli v. Zhongzhou pump company preferential buy right infringement dispute (Civil); the second; Zhengzhou City Intermediate People's court; according to the provisions of the contract law article 230th, the housing rental housing lessors sell, the lessee in the same conditions of preemptive right, should be to buy their own rental housing, rental housing and not the other betrayed. 2004.5.
13Haiya Park Committee v. Haidian District housing authority do not perform their statutory duties case (administrative); a trial; Beijing Haidian District people's court; administrative organs of the specific administrative act of the relative person to perform their duties for long time, not a written reply, or failure to perform the guidance, supervision, their behavior constitutes a violation of the law. 2004.5.
14Shanghai Fengxian District people's Procuratorate v. Chen En et al. Damage to the product reputation case (criminal); the second; the Shanghai first intermediate people's court; the defendant as the defamation of commercial reputation, deliberately distorted, exaggerate, smashed other goods in a public place, causing great losses to others, the production and business activities, according to the provisions of article 221st of the criminal law, the act constitutes a crime of damaging commodity reputation. 2004.6.
15Typhoon shelter Co. v. de Rong Tang, unfair competition disputes (Civil); the second; the Shanghai Municipal Higher People's court; restaurant proprietors in the business activities, has been widely representative of a class of special dishes and food business title serve to illustrate the behavior, according to the relevant provisions of the Anti Unfair Competition Law should be the rational use, does not constitute the unfair competition. 2004.6.
16Panama Fushan Shipping Co. v. People's Insurance Company of China Qingdao branch vessel insurance contract dispute case (Civil); the second; the Shandong Provincial Higher People's court; marine insurance contract to ship collision is an indirect impact without explanation, nor will the indirect impact on insurance exemption clause, the insured shall bear the insurance liability insurance claims the indirect collision accident, shall be determined in accordance with the provisions of insurance law and maritime law. 2004.6.
17The four row of the Raohe County, township government v. Guo Song and other violations of folk literary and artistic works copyright dispute case (Civil Law); the second; the Beijing Municipal Higher People's court; according to the provisions of article twelfth of the copyright law, works mainly in the traditional folk melody based music, should be identified as music adaptation. 2004.7.
18The contract dispute Guo Ye lawyers v. Xiamen Huayang jurisdiction case (administrative); a trial; Xiamen City Intermediate People's court; have jurisdiction over a case to the people's Court of China and other countries or regions of the court, a party has brought to the other countries or areas of the court, and to the people's court, if not in violation of the civil procedure law and China's participation in international treaties under the jurisdiction, the people's court may accept the case. 2004.7.
19Feng Haojiang et al. V. Guangdong Province Dongguan City Planning Bureau house dismantlement administrative ruling disputes (administrative); the second; Guangdong Provincial Higher People's court; according to the evaluation report made by the executive authorities of administrative adjudication, if people do not have the statutory qualifications assessment assessment, or evaluation of people not to forensics program of serious violations of the problem, should be identified the main evidence of ruling administrative organ, shall be revoked. 2004.7.
20Jinzhong City People's Procuratorate v. Liu Guoping embezzlement case (criminal); Shanxi Province Higher People's Court of second instance; unable to pinpoint the economic nature of the enterprise; in the case of the person in charge of the enterprise, enterprise funds transferred to the personal account of stock transactions, should not according to the provisions of the first paragraph of article 272nd of the criminal law as a crime of misappropriation of funds. 2004.8.
21Zheng Xuefeng, Chen Guoqing v. Jiangsu Province People's Hospital medical service contract dispute case (Civil); Nanjing City Intermediate People's Court of second instance;; public health services performance of medical service contract, in non emergency situations, changing medical scheme agreed contract has not been agreed, belongs to contract law 107th stipulation does not fulfill the contract obligations in accordance with agreed behavior. 2004.8.
22Sanmenxia water conservancy administration v. supporting construction company of Zhengzhou city housing sale contract dispute case (Civil); a trial; the Henan Provincial Higher People's court; betrayed housing sales contracts, in charge of a buyer who paid most of the money, not to the housing project price takes priority in compensation on the grounds, refused to according to the contract the delivery of housing to housing buyers. 2004.8.
23Song Lili v. Suqian City Construction Bureau of house demolition compensation and resettlement ruling case (administrative); the second; Suqian City Intermediate People's court; administrative organs in the verdict on compensation for housing demolition disputes, in violation of regulations, to remove the person unilateral entrusted assessment report as the basis, by removing the objection, should be identified the main evidence in administrative decision problems. 2004.8.
24Chengdu Municipal People's Procuratorate v. Liu Aidong corruption, bribery case (criminal); the second; Sichuan Provincial Higher People's court; according to the provisions of the first paragraph of article 385th of the criminal law, there are specific please state personnel know that others, still used his position to accept the financial, though not for others to reap the real benefits, their behavior constitutes bribery sin. 2004.9.
25Case of computer network domain name dispute Jiang Hai new Philips company (Civil); a trial; Shanghai second intermediate people's court; according to the provisions of the Supreme People's court "concerning the law applicable to a number of computer network domain name civil dispute cases the interpretation of" the fifth, the use of registered trademark registration, domain name and others of the same or similar, and without proper registration, the use of reason, is sufficient to cause related to mislead the public, should be identified as malicious registration, use of the domain name. 2004.9.
26He Wenliang v. Chengdu Wuhou District Labor Bureau work-related injuries that administrative case (administrative); the second; Chengdu City Intermediate People's court; according to the article third of the PRC labor law, recognized the labor time injury has nothing to do with the work in the workplace health facilities within the error is obtained, the applicable law. 2004.9.
27Guangzhou Haizhuqu District people's Procuratorate v. Wang as the crime of money laundering (criminal); a trial; Guangzhou Haizhuqu District people's court; according to the provisions of article 191st of the criminal law, the defendant to obtain illegal interests, engaged in drug crime knowing that others, a large amount of money and the master may be drug proceeds of crime, is still actively assist the purchase of shares investment enterprise management, property and source mask, hiding money, their acts constitute the crime of money laundering. 2004.10.
28The contract dispute Great Wall Co v. Yuanyang Plaza, commercial housing sales (Civil); a trial; the Beijing first intermediate people's court; the housing seller delivery of housing construction area in violation of the sale of commercial housing contract area, should be in accordance with the provisions of the Supreme People's court "about the trial commercial housing issues concerning the application of law in Contract Cases Interpretation of" fourteenth treatment. 2004.10.
29Rugao City printing machinery factory v. Yide company for trademark infringement (Civil); a trial; Nantong City Intermediate People's court; according to the trademark law article fifty-second (five) of the Convention, the refurbishing of the old equipment purchase to others production, removal of the original trademark logo on their products after sale behavior, should as the exclusive right to use a trademark infringement of the original equipment manufacturing enterprises. 2004.10.
30Beijing Haidian District people's Procuratorate v. Wu Jinyan intentional injury (criminal); the second; the Beijing first intermediate people's court; according to the third paragraph of article twentieth of the criminal law and the general principles of the civil law the provisions of article 128th, the citizen on the night of illegally entered the residence, violence to the people and others to take defensive actions, against criminals who caused the death, not bear the criminal liability and civil liability. 2004.11.
31Tengzhou branch of the city credit cooperatives in the construction of the Zaozhuang District of Xuecheng City v. a bill dispute case (Civil); the second; Shandong Province Higher People's court in accordance with the provisions of the guarantee law; Article seventy-sixth, the parties to a bank draft for pledge certificate, in written form shall be separately set the draft quality right, and get the drawer bank confirmation, shall be deemed effective bill of pledge. 2004.11.
32The act of administrative license Nian Si three village 28 building 35 residents v. Yang Zhou City Planning Bureau infringement case (administrative); the second; Jiangsu Province Higher People's court; according to the provisions of article twenty-first of the city planning law, administrative planning departments of the preparation of regional planning of city, planning permission in accordance with the authorization of laws and regulations. Construction, while the original sunshine time is shortened to the adjacent houses, but in accordance with the provisions of national and local administrative departments in charge of technical specification minimum Insolation Standard, and does not violate other provisions of laws and regulations, shall be deemed the licensing act. 2004.11.
33Chengdu Municipal People's Procuratorate Su Shangrong and other people of corruption (criminal); the second; Sichuan Provincial Higher People's court; the state-owned institutions staff taking bribes, unreasonable fees and devour the interception illegally collected, should according to article 382nd of the criminal law provisions, the crime of corruption. 2004.12.
34Shanghai Jingan District people's Procuratorate v. Zhang Meihua forged identity card case (criminal); the second; the Shanghai second intermediate people's court; the defendant lost identity card in the failed to apply case, hire others to identity the forged identity card, for their own use in daily life behavior, although in violation of the law provides identity management, but the plot remarkable slight, little harm, according to the provisions of article thirteenth of the criminal law does not constitute a crime, shall be deemed. 2004.12.
35Dispute over compensation for Wu Chengli and five v. Guandu, Wuhua security company's personal injury (Civil); the second; Yunnan Province Higher People's court; according to the provisions of the general principles of the civil law of the second paragraph 106th, commercial banks within reasonable limits do not security obligations, the depositors and other clients in the business place bank robbery. The liability for compensation, should adapt to assume its fault phase. 2004.12.
36Central Plains District of Zhengzhou city procuratorate v. first, Qiao Yongjie yuan, negligence causing death cases (criminal); Zhengzhou City Intermediate People's Court of second instance; early childhood education; special vehicle units in charge of the unit that shuttle children have safe hidden trouble, do not meet the requirements for driving, and not take maintenance measures necessary, still let others to use the car shuttle children, even in the vehicle after a fault occurs, the driver violations caused by the vehicle on fire, so that the children be handed over a number of casualties, the persons responsible for the act constitutes a major safety accident of educational facilities of article 138th of the criminal law crime. 2005.1.
37Zaishengyuan Co. v. Shanghai Municipal Health Bureau administrative enforcement decision case (administrative); the second; the Shanghai second intermediate people's court according to law; blood donation in eighth and eighteenth, the blood is national legal acquisition, provide blood for clinical use, in addition to the health administrative department shall be approved by authority, any units and institutions engaged in the acquisition, provide blood for clinical use is illegal, the health administrative departments have the right to be banned according to law. 2005.1.
38Zibo City People's Procuratorate v. Yang Baoying robbed, kidnapping, defiance and affray case (criminal); the second; Shandong Province Higher People's court; according to the provisions of article 236th of the criminal law, the defendant, bound by beating, confinement as a means of illegal detention and forced the victim, the victim directly hand over the cash behavior, should be the crime of robbery. 2005.2.
39Meng Yuan vs. Zhongjia travel agency contract dispute case (Civil); the second; the Beijing first intermediate people's court; a party to terminate the contract, not with each other in the case of consensus, reject the other proposed to reduce the loss of suggestions, to request the other party to bear all the losses of cancelling the contract, and give up the performance of the contract in its own interests, damage, should assume full responsibility. 2005.2.
40The people's Government of Meishan aerosol, V. Meishan city agent factory of Meishan City Land Bureau land administrative registration case (administrative); the second; Sichuan Provincial Higher People's court; according to the provisions of the Supreme People's court "about some problems in the implementation of" the people's Republic of China Administrative Procedure Law >] interpretation "in article forty-third, the parties filed administrative proceedings, the people's the court should be placed on file and not on file, and without the written ruling, caused the party to other departments, and continue to appeal to the people's court, the parties should not be the first time the prosecution was rejected, due to the non self delay time, the calculation in the prosecution deadline. 2005.2.
41Shanghai people's Procuratorate second branch v. Zhou Delong, business secrets (Civil); the second; the Shanghai Municipal Higher People's court; a, breach of confidentiality agreement with the original unit, together with others, using information technology outside the original unit of patent technology is not known to the public, to produce the same with the original unit products, and caused great economic the loss to the original unit, according to the criminal law article 219th (three) provided in item and of the second paragraph, the infringement of business secret crime. Two, knowing that the others to violate the confidentiality agreement with the original unit, still with the use of information technology to master the original unit outside the patent technology is not known to the public, production and its original units of the same products, and caused great economic loss to their original units, according to the criminal law article 219th (three) regulations and second, according to the crime of infringing business secret crime. 2005.3.
42Harbin Co. v. shengshidan company unfair competition disputes (economic); the second; Heilongjiang Province Higher People's court; according to the Anti Unfair Competition Law Article fifth (two) regulations, operators do not correctly use their name of commodity, their name of commodity designed and others specific to a well-known commodity name identical or similar text and others, causing confusion with the well-known commodity, so that buyers will of the operator's merchandise mistaken for a well-known commodity, should be identified as acts of unfair competition. 2005.3.
43Zhang Chengyin v. Xuzhou Municipal People's government housing registration decision of administrative reconsideration (administrative): the case of second instance; Jiangsu Province Higher People's court; administrative organs may in the administrative reconsideration decision not to others' decisions, such as do not take appropriate way to notify me to participate in the administrative reconsideration or to make a reconsideration decision, constitutes a serious violation of the statutory procedures, shall be undo. 2005.3.
44Shanghai Jiading District people's Procuratorate v. Wei Peiming et al robbery (criminal); retrial; the Shanghai Municipal Higher People's court; according to article 263rd of the criminal law and the Supreme People's court " several issues about the specific application of law in the trial of cases of robbery" the interpretation of the provisions of paragraph 1, a defendant to under the guise of shopping on the grounds, into other people's business and life region the apparent lack of isolated store looting behavior, may constitute the crime of robbery, but does not constitute a robbery of housebreaking plot. 2005.4.
45Gu Jun v. Shanghai bank savings contract dispute case (Civil); a trial (Trial); Shanghai second intermediate people's court; in accordance with the provisions of article sixth of the law of commercial banks, commercial banks should implement various crimes of self-service banking and ATM machine assume responsibility for preventing. The criminals to steal the vocoder in self-service system installed on the customer's bank card, steal information and password by depositors lose, as depositors no fault , commercial banks should bear the responsibility for compensation. 2005.4.
46Case of dispute over loan contract Changzhou District ICBC v. Kang beauty (Civil); a trial; Changzhou City Intermediate People's court; according to the guaranty law of article seventy-fifth (four) provision, by the export tax rebate account managed loans, export tax rebate pledge of rights. Not to pay the lender love borrowing, have the right on the borrower's export tax rebates in priority. 2005.4.
47Henan province Xinzheng City People's Procuratorate v. bad study case of misappropriation of public funds (criminal); the second; Henan Province, Zhengzhou City Intermediate People's court; a state-owned enterprise workers, due to the need of business units, according to the collective decision, the funds allocated to the individual is collective name for the use of other enterprises, no personal benefit from in its behavior, does not constitute the crime of misappropriation of public funds. The nature of the enterprise business license two, the administrative department for Industry and Commerce approved labelled, inconsistent with the actual situation of the enterprise, should be based on the establishment of the enterprise process, source of funds, profit distribution, management mode and so on, to recognize the enterprise nature. 2005.5.
48Lu Yaodong v. Yongda company dispute over compensation for pollution damage to the environment (Civil); first, the Shanghai Pudong New Area people's court; according to the provisions of the general principles of the civil law 124th and the environmental protection act forty-first, lighting the behavior of human normal living environment for others and health life caused by environmental pollution, the actor has the responsibility to eliminate the hazards. 2005.5.
49The letter Lian Hua v. Xingang commercial bank deposit receipt dispute (Civil); the second; Tianjin Second Intermediate People's court; according to "the Supreme People's Court on the trial of a number of provisions" CD dispute provisions in article fifth, certificates of deposit and financial institutions deposit holder bottom single record does not match the content, if the certificate is true, and financial institutions can only submit one fabricated evidence to defense of deposit, deposit holders shall be determined and established between the deposits of financial institutions, financial institutions deposit cash payments according to assume obligations. 2005.5.
50Yu Shanlan v. ICBC Xuanwu branch, ICBC Beijing branch of the unjust enrichment dispute case (Civil); the second; the Beijing first intermediate people's court; according to the general principles of the civil law the ninety-second regulation, financial enterprises in the service of integrated circuit issued related to administrative management responsibility card, in violation of management fees, fee charged outside fees from the parties, constitute unjust enrichment. 2005.6.
51Consumer disputes Suning center Liu Xuejuan v. LG company, case (Civil); Nanjing City Intermediate People's Court of second instance; the protection of consumer rights and interests; according to Article eighth and the product quality law the provisions of article twenty-seventh, cosmetic operator in the cosmetics packaging period is marked by the use of limit eligibility date, but did not specify the exact meaning of the date of caused by cosmetics, consumers can not understand the safe use period, the consumer's right to know against. 2005.6.
52China Medicine University v. Furui technology company unfair competition disputes (Civil); the second; Jiangsu Province Higher People's court; 1, according to the provisions of the anti unfair competition law second, managers in violation of the law, damage is not directly engaged in the commodity business, but the business activities of enterprises directly affiliated to profit from the market of the enterprise legal person's legitimate rights and interests, disturb the order of the market economy behavior, constitute unfair competition. 2, according to the provisions of article third paragraph 134th of the general principles of the civil law, the people's court in the trial of civil cases found in the acts of the parties constitute violations of law, in addition to civil liability, also can be in accordance with the law directly to a fine. 2005.6.
53The 25 people such as Huang Jincheng v. Wuhou District Chengdu City Housing Authority property management division of the regional administrative disputes (administrative); the second; Chengdu City Intermediate People's court according to the administrative procedure law; Article fifty-fourth (two) first provisions, there is no evidence that the administrative organ in the regional property management division, in accordance with the "section second property management regulations" the requirements of ninth, consider the property shared facilities equipment ownership, use and maintenance problems, should the decision to withdraw the administrative act, the administrative organ and shall be ordered to undertake a specific administrative act. 2005.6.
54Wuxi District People's Procuratorate of Beitang v. beam Zhaolong corruption (criminal); a trial; Wuxi city Beitang District People's court; according to the provisions of the first paragraph of article 382nd of the criminal law, a defendant in the restructuring of state-owned institutions, to take advantage of their positions to hide the state-owned assets, and transfer it to the restructuring of their own share of the investment company, constitute the crime of corruption, but corruption amount shall be determined according to the proportion of investment in the restructuring of the company in the proportion of. 2005.7.
55Autodesk Co. v. long Corporation computer software copyright infringement dispute (Civil); the second; the Beijing Municipal Higher People's court; according to the "Regulations" in the third paragraph of the computer software protection ordinance fifth, computer international member of the Convention people enjoy China's accession to the copyright, legal protection, without the right of parties license to infringe the copyright of computer software, shall bear civil liability according to law. 2005.7.
56Yang Baoxi v. Tianjin clothing technical don't perform their statutory duties case (administrative); a trial; Tianjin City Hedong District People's court; according to the education law article forty-second (three) of the Convention, the educated enjoy complete the school obtain the corresponding certificate of rights. Educational institutions have no direct to grant the educated graduates issued certificate of graduation behavior, constitute illegal. 2005.7.
57Nanjing City People's Procuratorate Xuanwu District v. Yu Gang and other four theft (criminal); a trial; Nanjing Xuanwu District People's court according to the provisions of the criminal law; 264th, the defendant by writing, spread the virus program in the online bank account number, password interception of others, stealing or actual control others online bank account deposits behavior, constitute the crime of theft. 2005.8.
58Lianyou halogen products factory v. Bai Daidi trademark infringement dispute case (Civil); the second; Jiangsu Province Higher People's court; the actual producers indicated in the commodity packaging, although the same and place names are registered trademarks of the same or similar goods in the consumer to the commodity, but will not cause confusion, mistake, belong to "legitimate use regulations" provisions of article forty-ninth of the implementation of the Trademark Law of the people's Republic of china. 2005.8.
59Songye stone factory v. Xingyang Municipal Bureau of labor insurance of inductrial injury case (administrative); the second; Zhengzhou City Intermediate People's court; according to the Supreme People's court "Regulations" on some issues of administrative procedure evidence fifty-ninth, labor and social security administrative department accepting the application for ascertainment of a work-related injury, in accordance with legal procedures require the employer to provide relevant evidence in the regulations time, the employing unit refuses to provide evidence to the administrative organ, it provides to the people's court in the administrative proceedings, the people's court may refuse to accept. 2005.8.
60Shanghai people's Procuratorate second branch v. Guthrie, illegal business case (criminal); a trial; Shanghai second intermediate people's court; according to the provisions of article 218th of the criminal law, the defendant for the purpose of profit, without obtaining the "license for operating audio and video products" condition, purchase price is clearly infringing video copy to overseas sold later at a higher price, huge amount of illicit income, constitute the crime of selling infringing products. 2005.9.
61Xu Lei v. Zhonghui real estate company property ownership dispute case (Civil); the second; the Beijing first intermediate people's court; according to the provisions of the contract law article forty-first, the lessee and the lessor without consultation from the lessor to refund the deposit obligations, the lessor to the two sides signed the provided by the lifting of housing lease contract format "both sides no economic relations" agreed on the grounds, refused to return the deposit, the tenant objection, the lessor shall not absolve the refund of the deposit obligations. 2005.9.
62Wu Weiming v. Shanghai Citibank savings contract dispute case (Civil); the second; the Shanghai first intermediate people's court; foreign financial institutions charge account management fees behavior to small savers, not in violation of laws, regulations and prohibitions, do not constitute a crime. 2005.9.
63One group, Yang Cun Chen Qingzong v. Ting Ting Yang Cun Cun Wei Hui land acquisition compensation allocation dispute case (Civil); the second; Xiamen City Intermediate People's court; in accordance with land management law article fourteenth and land contract law the twenty-sixth regulation, the land contract farmers settled in the small town, the land contracting right of management may retain or circulation according to the law; if the land expropriation of land, farmers have the right to obtain compensation. 2005.10.
64Wang Baofu v. Sanxin law property damage compensation dispute case (Civil); the second; the Beijing second intermediate people's court according to law; forty-ninth the first paragraph, the lawyers witnessed the testament is confirmed to be invalid because the form is not in accordance with the law, the beneficiary left to suffer economic losses, lawyer's it shall bear the liability for fault. 2005.10.
65Hunan Wang Yuewen v. Hebei Wang Yuewen, copyright infringement, unfair competition disputes (Civil); a trial; Changsha City Intermediate People's court; writers through the sale of works of the publishing rights, access to their own economic interests from the cultural market, is the business of his works. According to the Anti Unfair Competition Act second provisions in the third paragraph of the writer, belongs to the cultural market commodity manager; well-known writer has signed on, identification of goods, to sell their works, taking reference, counterfeit, climbing or desalination and other means, the identification of goods by the famous writer has to sign mislead consumers, it is the unfair competition action of Anti Unfair Competition Act second provisions of the second paragraph. 2005.10.
66Liyuan Co. v. cam Ranh Bay Company for trademark infringement (Civil); Jiangsu Province Higher People's Court of second instance;; commercial housing sellers in advertising, place names are registered trademarks of others in use to mark the commercial housing location, did not cause public confusion, mistake of commercial housing source, does not infringe the exclusive right registered trademark. 2005.10.
67Chen Lihua and so on 23 investors v. Daqing Lianyi, Shenyin Securities Misrepresentation tort compensation dispute case (Civil); the second; Heilongjiang Province Higher People's court; according to the "Regulations" on the trial of civil compensation cases caused by false statement in securities market, the actual controller of listing Corporation in the name of the listing Corporation to implement the misrepresentations to investors losses, investors only sued listing Corporation, the listing Corporation shall bear the liability of compensation in advance, and then recover the compensation from the actual controller, securities underwriting business, securities listing recommendation party knew or should have known that the listing Corporation and not correct or not false statement issue reserved opinions, constitute joint tort, jointly and severally liable to the loss of investors, investors in their subject false statements against the grounds, the civil suit for compensation for misrepresentation of people, must be based on the administrative punishment decision of the relevant organ or the people's Court of criminal judgment as the basis, the limitation of action shall be published in such cases, administrative punishment decision of the relevant organ or the people's Court of criminal judgment and date. 2005.11.
68Jiangsu Foreign Enterprise Co. v. Shanghai Winterthur insurance ocean marine cargo insurance contract dispute case (Civil); a maritime court trial; Shanghai; the insured to the insurance contract, not to the insurer shall inform the knowledge or in the ordinary course of business should know, enough to affect the insurer is made as to whether the underwriting and how to determine all the important insurance decision, in violation of the principle of utmost good faith, the insurer may therefore declare the insurance contract shall be invalid. 2005.11.
69Bonet Co. v. Shanghai Mei steaming company trademark infringement and unfair competition disputes (Civil); the second; the Shanghai Municipal Higher People's court; according to the Trademark Law Implementing Regulations of article fiftieth (a) of the Convention, commercial operators in the same kind of goods or similar goods, mark the registered trademarks of the same words with others as the name of the enterprise, or to use the registered trademark split himself into the use and others registered trademark approximation, so as to mislead the public, which belongs to the trademark law article fifty-second (five) provisions of the trademark infringement behavior; according to the Anti Unfair Competition Law Article fifth (two) the provisions of item, merchandise operator in his store, signs, labels, packaging bags and other office use and a well-known commodity approximate name, packaging, decoration, which confused their goods and other well-known commodities, which belongs to the act of unfair competition. 2005.12.
70Zhejiang Textile Co. v. Taiwan holding company contract of carriage of goods by sea delivery without original bill of lading disputes (Civil); the second; the Shanghai Municipal Higher People's court; provisions article third maritime law forty-second of the shipper, can be a contract of carriage of goods by sea of the parties, also can be the delivery. Bill of lading is the existence proof of the contract of carriage of goods by sea, and not only that, the subject when the bill of lading subject and the contract of carriage of goods by sea is inconsistent, in the absence of a written contract, the people's court may determine the contract of carriage of goods by sea in the shipper according to the actual situation to fulfil obligations; for delivery of goods without the the shipper does not receive payment, the carrier shall be liable for compensation to the shipper. The shipper in the port of shipment without trade circulation of bill of lading against the carrier, there is no contract of carriage of goods by sea in May by one-way claim right to purchase third person, do not need to solve the holder of the bill of lading has no right of taking delivery problem. 2005.12.
71Li Jinhua v. Li Rong pawn, pawn dispute case (Civil); a trial; Shanghai Jingan District people's court; off when, destroy the closer foreclosure on pawn pawn contract based, not in violation of the law, also in line with the pawn industry practices and the general public understanding. 2006.1.
72Tasting food Co. v. Industrial Bank of Korea, China Nuclear Power Plant Branch credit dispute case (Civil); the second; the Jiangsu Provincial Higher People's court; letter of credit fraud, refers to the beneficiary in no goods or inferior quality cannot delivery situation, alone or with others malicious collusion, forged in accordance with one or several documents the credit requirements, payment by letter of credit from the issuing bank, so that the applicant has suffered economic loss behavior. If the issuing bank is no evidence that the credit card for the documents under a letter of credit is the beneficiary alone or with others malicious collusion to cheat forged, under the credit funds from the issuing bank, and the forged behavior has given the credit application, cause substantial damage, could not invoke the fraud exception principle of L / C payment credit payments under the license. 2006.1.
73Jianming food company v. Sihong county government quarantine dispute administrative command case (administrative); the second; Jiangsu Province Higher People's court; review the internal organs of superior to subordinate to indicate whether the people's court to which the case scope of administrative procedure law in the acts of administrative litigation, whether from the instructions on compulsory legal persons or other rights of citizenship make a real impact on. In the administrative process, the form of administrative command subordinates to make instructions, if has a direct, external legal effect, if a party refuses to accept the administrative proceedings, the people's court shall accept. 2006.1.
74Binhai County People's Procuratorate v. Liu Bizhong contract fraud (criminal); the second; the Yancheng City intermediate people's court; welfare lottery is a country to raise social welfare development funds, China franchise issuing welfare lottery center monopoly the valuable credence, by lottery issuing agency, betting the non national staff welfare lottery in the lottery station pin, if not to pay the lottery money way to print and obtain the lottery, is a violation of property for public welfare lottery issuing agency management behavior, according to the first paragraph of article 272nd of the criminal law regulations, shall be punished for the crime of misappropriation of funds behavior. 2006.2.
75Huang Yingsu the U. s.splendor property company commercial housing sale contract dispute case (Civil); the second; the Beijing first intermediate people's court; the house owners that have obviously flaws, developers in the "receipt" owners acceptance certificate signed, the developer refuses to provide the owners signed the "owners acceptance", but by to the owners have admitted, that owners of housing status approval, according to the Supreme People's court "on the civil evidence regulations", it can be presumed owners about has objection proposition; according to the contract law the 107th regulation, the delivery of housing does not meet the pre-sale of commercial housing contract agreement, the developer to the owners shall bear the liability for breach of contract, the delivery of housing construction items change, whether through administrative organs for approval or compliance with building codes, are another legal relationship, cannot become the developers do not default or exempted from liability for default. 2006.2.
76Zhou Peidong v. Jiangdong bank savings contract dispute case (Civil); the second; Hunan Province, Hengyang City Intermediate People's court; the provisions of the commercial bank law guarantee payment, freedom of withdrawal, confidentiality for the depositors shall conduct a comprehensive understanding, guarantee to pay not only refers to the bank and shall not delay, refused to pay, also includes the bank shall, in a proper way to pay compulsory, free withdrawal, including not only the money time, withdrawals of freedom, in a counter and automatic teller machines and other methods of withdrawal case, shall also include the choice of the method of withdrawal free, confidentiality for the depositors not only refers to the personal information confidential bank shall provide to depositors have, including shall go through the formalities for transaction depositors for the bank to provide the necessary security, secure environment; if the bank does not fulfill this obligation, constitutes a breach of contract, it shall bear corresponding responsibility for breach of contract. 2006.2.
77Wang Deqin v. Yang Desheng, Luzhou City, two team car traffic accident damage compensation dispute case (Civil); a trial; Luzhou City Jiangyang District People's court; the general principles of the civil law "provisions of article 119th of the dependents of the dead", including the deceased practical support people, including the support should be, but because death accident the dead are not raised, the children of. 2006.3.
78Flowers Co. v. Shuttle sale contract dispute (Civil); the second; Guizhou Province Higher People's court; according to the guaranty law of the first paragraph of article forty-ninth and "'problems concerning the application of Guaranty Law of the people's Republic' interpretation of the" sixty-seventh, did not inform the mortgagee and did not inform the transferee case, mortgage person has registered the transfer of the collateral, as long as the collateral after transfer to the mortgagee to repay the debt, or the assignee in that the fabrics have mortgage mortgage people offspring pay off debt, to set mortgage eradication, transfer behavior can still effectively; can invoke provisions in the first paragraph of the guarantee law forty-ninth to advocate the transfer act invalid, should be to impair the lawful rights and interests of the mortgagee or the assignee, not fulfilling the provisions of duty of disclosure, the mortgagor, mortgagee filed a lawsuit claims that the transfer act invalid, on the base of realizing the mortgage right, the claim shall be dismissed. 2006.3.
79A company v. Wuxi City Administration of industry and commerce administrative punishment case (administrative); the second; Jiangsu Province, Wuxi City Intermediate People's court; the seizure, seizure and administrative punishment, the specific administrative act is independent, the administrative organ has told the power of reconsideration, litigation right to the opposite person to the Administration and the prosecution deadline, the administrative relative person in the within the statutory time limit on detention, seizure not make reconsideration or prosecution, but in the request for revocation of the administrative punishment decision of administrative litigation charges detained, seized the illegal, according to the relative people of administrative litigation request, the people's court only review the legality of administrative behavior of administrative penalty; according to the product quality law and "the State Administration of industry and commerce administration management functions within specified" structure and staffing, commodity once entered the circulation field, both in the warehouse shelves or in other locations, storage, the quality of supervision and management of the administrative department for Industry and commerce; no Chinese logo imported product packaging to be used within a time limit on foreign identification, no safe use period or the expiration date, production date is not complete, is not in accordance with the product quality law twenty-seventh stipulation Product, product seller such illegal if the circumstances are serious, according to the product quality law the thirty-sixth regulation, ought to be illegal responsibility of product quality law fifty-fourth stipulation. 2006.3.
80Chongqing District People's Procuratorate of Yuzhong v. Zhu Bowei, Lei Xiuping robbery (criminal); a trial; Chongqing city Yuzhong District People's court; the taxi driver in the normal operation of the process, to obtain illegal benefits, by means of violence or threat, forced to passengers, claim and reasonable price is the difference between the high taxi services, if the circumstances are serious, which constitutes the article 226th of the criminal law of the crime of forced transaction, should not be convicted and punished for robbery. 2006.4.
81Xi'an City People's Procuratorate v. Wei Kingdom theft (criminal); the second; Shaanxi Province Higher People's court; the motor vehicle has the special property, ownership must be based on the documents of title to assert their ownership, motor vehicle trading only in the transfer registration procedures, to transfer property, at the same time, motor vehicle license, registration system it is further enhanced by the owner or the person in possession of the vehicle control, therefore, even if the vehicle owner or possessor forgot to close the windows, the lights before leaving the car, will the car keys to forget in the car, also cannot recognize completely lose control of the vehicle, and thus presumed that the motor vehicle belonging to the forgotten things, in this case under the act, for the purpose of illegal possession, the motor vehicle to steal a secret way, shall be convicted and punished as theft. 2006.4.
82Guo Jingzhong v. Thai company, Blue Star Ltd sales contract dispute case (Civil Law); the second; Tianjin first intermediate people's court; in the sale contract dispute, the defendant in order to conclude the business contract handling people suspected of economic crimes by criminal detention on the grounds, claim to suspend the trial sale contract dispute, waiting for the criminal case processing results, but in between the plaintiff of the sale contract, but can not be used to deny the real evidence, the lawsuit claims that cannot be established. 2006.4.
83Dan Hongyuan, Liu Chunlin v. Hu Xiuhua, Dan Liang, single Yixian statutory succession dispute case (Civil); the second; the Jiangsu Provincial Higher People's court; "interpretation of the Supreme People's Court on certain issues concerning the application of the people's Republic of China Marriage Law '' (two)" the provisions of article twenty-fourth, this is meant to protect the creditor, generally only suitable for processing the couple external debt relationship, the people's court to husband and wife property relations in the treatment of internal disputes, not simply on the basis of the provisions of the adjudication either the husband or wife's foreign debt disputes, is not of course as to dispose of their internal property dispute decision, a husband or wife. External debt belongs to the common debts between husband and wife still bears the burden of proof the proof of debt is the common debts between husband and wife. 2006.5.
84Nanjing snow Zhongcai shadow Co. v. Shanghai snow Zhongcai shadow company or its branch company for trademark infringement, unfair competition disputes (Civil); a trial; Nanjing City Intermediate People's court; the act of climbing the registered trademarks of others awareness, free has other commercial reputation infringement intentionally, with the registered trademarks of others the same text for registration his name in the company name, registered name to use their own behavior of enterprise trademark all the same services in and, size of the font does not exist and the identical or similar to a registered trademark, is easy to highlight the use of or related to mislead the public plot, although not constitute trademark infringement, but due to the violation of the principle of honesty and credit and the generally recognized business ethics, also make consumer confusion or may confuse the market main body as well as the service from the use of the consequences, thus constituting unfair competition. 2006.5.
85Zhaoqing Foreign Trade Corp. v. Zhaoqing customs administrative disputes (Civil); the second; Guangdong Provincial Higher People's court; there are sub company and the general company, co management, profit sharing and other special relationship with overseas seller buyer of imported goods, imports of goods declaration prices significantly lower than the actual transaction products of the same type of comparable prices, even below the cost of production, the applicant can not prove that the special relationship between the seller did not affect prices, according to the Customs Law fifty-fifth, "customs valuation approach" the provisions of article thirty-fourth, the customs may refuse to accept the declared price, in accordance with the provisions of the customs and assess "examination" seventh to Article eleventh of the dutiable value. 2006.5.
86Sun Lixing v. Tianjin Park Labor Bureau work-related injuries that administrative dispute case (administrative); the second; Tianjin Municipal Senior People's court; according to the "Regulations" industrial injury insurance article fourteenth (a) regulations, workers in the workplace and working time, by the accident injury because of work reasons, should be identified as work-related injuries, the provisions in the "workplace", "because of work reasons" should be comprehensive, correct understanding; "workplace", refers to workers engaged in the occupation activity place, where there is a plurality of workplace situations, including workers from the plurality of work must pass through the region between the places; "because of work reasons", is the workers were injured a causal relationship exists between the engaged in work with, namely the worker because engaged in their work and injured, in addition to "Regulations" provisions of article sixteenth of the industrial injury insurance for the crime or violation of public security administration casualties, drunk cause casualties, self mutilation or Dutch act and other circumstances, the staff engaged in the work of negligence, does not affect the the establishment of the causal relationship. 2006.5.
87Wu Wenjing, Zhang Kaiyi, Wu Caijuan v. Xiamen City Healthy Travel Service Co. Ltd., Fujian province Yongchun Niumulin tourism services limited personal damage compensation dispute case (Civil); Xiamen City Intermediate People's court; tourism services and tourist guides to the natural risk prevention awareness should be higher than the visitors, and the responsibility to protect the safety of tourists responsibility, should be tourists safety first for the purpose, according to the principle of good faith and combined with the specific circumstances of the time to make the right judgments on whether to adjust the stroke, the tour guide is not customer risk view, insist on taking tourists adventure play by tourists, danger, and the actual cause damage happen, tourism service structure of civil liability of its subordinate; tourists in distress or hurt, tourism related service agencies should try their best to give timely assistance, not tourism services to rescue duty, cause damage to the expansion, should bear corresponding civil liability; trees cause damage, in addition to being the owner or manager of trees has been to do maintenance, management duty, or the result of the occurrence of the damage is prevented by force majeure caused by, or the victim because of his Fault damage three kinds of circumstances, the owner or manager of the tree shall bear the responsibility for compensation; according to the provisions of the Supreme People's court "on certain issues concerning the application of law in the trial of personal injury compensation case explanation" article third paragraph second, more than two people have no joint intent or negligence, but separately commit several acts the indirect binding the same damage, should be based on the size or negligence cause proportion each bear corresponding liability. 2006.6.
88Xinyu company v. Feng Yumei shop sales contract dispute case (Civil); the second; Nanjing City Intermediate People's court; according to the contract law the 110th regulation, a breach of a party requests the termination of the contract, no breach of the other party to perform the contract, the breaching party to continue to perform the contract when the necessary financial, material force over the contract both sides based on contract to obtain benefits, the contract has not continue to fulfill the conditions, to balance the interests of both parties, can allow the breaching party to terminate the contract, but must by the breaching party shall bear the liability for compensation to the other party, the other party to ensure the reality of the termination of the contract for the vested interest does not decrease in segmentation; shops for the subject of the contract of sale, the buyer to shop right, different from the independent shops, to assure integral function property of the play, the buyer the right must be influenced by other shop owners will limit the overall. 2006.6.
89Bottom Co. v. Xiamen customs administrative punishment decision disputes (administrative); Fujian Province Higher People's Court of second instance; responsible for the warehousing enterprise legal person; review of obligations for sources of goods under customs supervision, knowingly smuggled goods, although repeatedly to go private said refused to provide storage service for smuggled goods, but implementation has been provided for smuggled goods storage service did not report to the customs, administrative punishment of the Customs Law of the people's Republic of China "sixth rules for the implementation of the provisions of the second paragraph of" the violation behavior, constitute the common smuggling; the administrative organ for the implementation of laws and regulations, according to law, administrative regulations, the relevant legal changes, as long as it is not legal, administrative regulations or the formulation departments expressly abolished, and does not conflict with the change in the law, they can still apply for failure; and for smuggling people convenience for people to give administrative punishment, confiscate the illegal income and impose a fine in accordance with the provisions, "administrative punishment of the Customs Law of the people's Republic of the second paragraph of" sixth rules for implementation, the person penalized the provisions of other documents as an example, the cost of inputs required by deduction from the illegal income Why not set up. 2006.6.
90Li Xuehua, Fan Yang v. fan, Teng Ying inherited property dispute case (Civil); a trial; Nanjing city Taihuai District People's court; during the marital relationship, the two sides agreed to by artificial insemination and make the woman is pregnant, the man's sperm by others, is subject to the consent, the case of consensus, then the death of children born in failed, although the child and the man have no blood relationship, should still be considered the couple's children born in wedlock, the man in his will to the children not to retain the necessary share of heritage, not in conformity with the law of succession nineteenth regulation, this part of content of will is invalid. 2006.7.
91Li Sijia v. Xiling people's Insurance Company contract dispute case of person insurance (Civil); Yichang City Intermediate People's Court of second instance; insurance law; according to the ninety-second paragraph second, accident insurance is insurance, not applicable in property insurance "the principle of compensation"; have the exclusion clauses in insurance contract, in conclude when insurance contract, the insurer shall specify, unspecified, the clause shall not be binding, the insurance company shall be in accordance with the contract claim. 2006.7.
92PENAVICO Lianyungang Lianyungang Harbor Bureau, Inc. v. Hong Ming Industrial Company, Hong Ming Trading Company delivery without original bill of lading infringement compensation dispute case (Civil); the second; the Shanghai Municipal Higher People's court; the port operator and operation according to the principal contract, to import goods for some of its regulatory responsibilities, in order to perform this duty, the port operator in the delivery the goods, should be on the bill of lading for review, review of the content is limited to review the bill of lading with and without consent of the customs release chapter, the holder of bill of lading is one among the consignee or its agent, the port operator did not examine obligation; delivery single out, would be to acknowledge that the holder has the right to take delivery of the goods, the port operator customs bill of lading agreed to release chapter, deliver the goods to the holder of the bill of lading Fanghuo, is normal behavior, there is no fault; knowing only the original bill of lading to goods, but in a false reason from the carrier or his agent business through bill of lading, single for delivery procedures and then use the delivery, is to illegal appropriation of property act, in accordance with the general principles of the civil law, maritime law article seventy-first 101st The provisions of Article Seventeen, the actor should the economic losses to others shall bear tort liability. 2006.7.
93Huaian City People's Procuratorate v. Kang Zhaoyong, Wang Gang of dangerous goods accident case (criminal); a trial; Huaian City Intermediate People's court; there are dangerous goods transport qualifications, knowing that the use of motor vehicle overloading transportation of highly toxic chemicals with potential safety hazard, may cause endangering public safety accidents, but trust can be avoided, so that the accident occurrence and causing serious consequences, constitute the crime of dangerous goods accident "criminal law" the provisions of article 136th; engaged in toxic chemicals transportation professionals, in the event of accident caused poisonous chemicals leaked out, have the obligation to use emergency treatment equipment and protective equipment with the vehicle equipped with rescue each other vehicle on the injured, the obligation to near the scene set the alert area, damage characteristic, have the obligation to give an alarm and take note of the dangerous goods in the alarm when possible, and need to take what rescue tools and assistance to prevent, reduce and eliminate the hazards, have the obligation to wait for rescue personnel at the scene of his arrival, the highly toxic chemicals professional knowledge as well as to transport understand the use of vehicle structure, helping rescue people Member of emergency accidents, engaged in highly toxic chemicals transportation professionals do not fulfill these obligations, should bear the responsibility for the serious consequences caused by. 2006.8.
94Dai Xuefei v. Huaxin company commercial housing subscription agreement deposit disputes (Civil); the second; Suzhou City Intermediate People's court; satisfied buyers on the model of the housing developers signed a subscription agreement, and the delivery of the deposit to the developers, the two sides agreed on a set of commercial housing sale contract, because the model rooms are for reference only, not for the purchase of commercial housing developers to provide pre-sale format to the terms of the contract, the purchase of the format of the terms of objection to delete, developers can not reply immediately, so that the commercial housing sale contract is not in agreement concluded by order date, belonging to the Supreme People's court "on the law applicable to a number of commercial housing sale contract dispute cases interpretation of" the provisions of article fourth "no imputation of the subject matter in both parties", the developers will return to collect the deposit for the purchase. 2006.8.
95Dispute over compensation for Yang Wenwei v. Bao twenty smelting company personal injury (Civil); the second; the Shanghai second intermediate people's court; due to the employer other than the third person tort workers caused personal injury, occupational injury, injured workers and the workers is not only the industrial accident, it is tort victims have the right at the same time, compensation insurance and personal tort compensation; the employer and the infringer shall bear the liability, even if the employee has already from one party to obtain compensation, also cannot exempt or reduce the liability of the other party. 2006.8.
96Shao Zhongguo v. Huangpu District Safety Supervision Bureau of safety production decisions on administrative punishment case (administrative); a trial; Shanghai Huangpu District people's court; "called" illegal "as mentioned in the preceding paragraph of production safety law" eighty-first paragraph second, refers to the first paragraph of the article "the main person in charge of a production and business operation fails to perform the duties and functions of production safety administration" of this Law provisions of the act, the illegal behavior regardless of whether they were safe production supervision departments found and order correction within a prescribed time limit, as long as the cause of production safety accidents, safety production supervision departments have the right in accordance with the "production safety law" eighty-first paragraph second, directly on the production and management is mainly responsible for the unit given administrative punishment, do not need to order correction within a prescribed time limit after the implementation of administrative punishment. 2006.8.
97Ji Yizhen v. Bao also an branch, Mu Guangjin, Xu Jun traffic accident damage compensation dispute case (Civil); a trial; Haian County People's court; the Supreme People's court "on certain issues concerning the application of law in the trial of personal injury compensation case interpretation" in article twenty-ninth, is to consider the urban residents in the average level of consumption and income levels were higher than that of rural residents, reasonable compensation for the victims, while avoiding aggravated damages people's responsibility, while the urban residents and rural residents of the death compensation standard distinction, the intention and non-human factors to the household registration division of life value, life is not worth to calculate, the the above provisions should be comprehensive and correct understanding, not simply according to the household registration confirmation of the death compensation standard, and we should consider the victim's habitual residence, work, get paid more, consumer and other factors to judge; for many years of living and working in cities and towns, relatively stable income, consumption level and the general urban residents basically the same, have been integrated into the urban life of rural residents, if death occurred accident, involving And the issue of compensation, in accordance with the urban residents of the death compensation standard calculation. 2006.9.
98Ding Xiaochun v. Nantong City Board of education, Jiangsu fine arts publishing house the copyright infringement case (Civil); a trial; Nantong City Intermediate People's court; according to the "Compulsory Education Law" provisions of the compulsory education, teaching system, teaching content, curriculum and textbook review, shall be determined by the competent administrative Department of Education under the State Council, the provisions of the State Education Commission formulation of the "national primary and secondary school textbooks authorized committee charter", the compilation of the textbook must be approved by the central government or the provincial education administrative departments, the disciplinary committee through, and submit the examination committee approved, by the national Education Committee in the national average middle and primary school teaching book directory, therefore, "textbook is not specified in the first paragraph of article twenty-third of the copyright method" flood all textbooks used in primary and secondary schools, and should be defined as approved by the education administrative department at the provincial level and above, by written by the state set up special subject review committee, and shall be submitted to the Committee for approval, by the State Board of education in primary and secondary schools throughout the country class official book ordinary primary and secondary school textbooks directory, in addition teaching materials, does not apply to "copyright law" Twentieth The first paragraph of article three of statutory licensing regulations. 2006.9.
99Kwu Tung Chun Co. v. Yiqingyuan companies and other unfair competition disputes (Civil); the second; the Hunan Provincial Higher People's court; the general principles of the civil law ninety-seventh stipulates: "citizens shall enjoy the right of discovery on their findings, that person has the right to apply for the certificate of discovery, bonuses or other incentive." According to the regulations, finding the right of individual or collective is found to give a right of honor and reward power, can not transfer can not be achieved by the following; the protection of new plant varieties act third stipulates: "agriculture, forestry administrative department of the State Council (hereinafter referred to as the examination and approval authority) according to the division of responsibilities jointly responsible for the new plant variety award the new plant variety right." The act of thirty-first stipulates that: "the variety right application of the provisions of these regulations by the substantive examination, the examination and approval authorities shall make a decision to grant the variety right, issued a warrant, and register and announce." According to the above provisions, made the new plant variety right, must be in accordance with legal procedures, any individual or organization can't be any other way the original variety right. 2006.9.
100Xia Shanrong v. Xuzhou city construction bureau chief that dispute (administrative); retrial; the Jiangsu Provincial Higher People's court; the competent administrative department for construction of residential district organization built on the collective land on the completion of a comprehensive inspection and issue a certificate of acceptance, does not violate the "City real estate development and management Regulations" on the "real estate development project is completed, after acceptance, the original intention of legislation can be delivered for use", is a specific administrative act in accordance with the terms of reference implementation, the behavior directly affects the interests of the residents of residential area, the specific administrative action; administrative department in charge of construction is the administrative area of residential completed comprehensive inspection and final inspection of the organizers, on behalf of the State exercises the completion of a comprehensive inspection of residential quarters in power, the completion of a comprehensive acceptance construction administrative departments issued "housing final acceptance certificate", is to the government to guarantee the credibility of residential construction quality achieved can be delivered for use, construction administrative departments in the certificate, must ensure that each of the facts certificate proves true, so as not to damage the credibility of the government, such as fruit A fact certificate proves to be false, construction administrative departments shall bear legal responsibility to review the administrative litigation cases of dereliction of duty; in accordance with the procedure for trial supervision procedure, the parties should provide new evidence found in the burden of proof after the expiry of the law, is due to objective reasons can not be collected and provide relevant clues the parties may apply to the people's court, the people's court may take, in accordance with the terms of reference to other organizations or citizens to obtain evidence, administrative organs, according to the evidence, the certification of new, specific administrative acts being sued by the main facts not according to the established, and shall be amended to cancel the original specific administrative act. 2006.9.
101Chongqing and real estate development company limited and Chongqing Chenguang Industrial Development (Group) Co. Ltd., Chongqing Chenguang Department Store Co. Ltd., Chongqing Chenguang Le Grand Large Hotel limited liability company housing relocation dispute case (Civil); a trial; the Supreme People's court; revoke the business license of enterprise legal person administrative punishment, the administrative department for Industry and Commerce on the basis of the national industrial and commercial administrative regulations to make the illegal enterprise legal person. Corporate business license was revoked after liquidation shall be carried out in accordance with the law, the liquidation procedure over and for cancellation of business registration, the enterprise legal person perish. Judge the status of an enterprise legal person existence or not, shall be subject to the administrative department for Industry and commerce is the cancellation of its legal person qualification standards, if the enterprise fails to be cancelled, even if the business license is revoked, still have the qualifications of a legal person, still have the litigation rights and ability, has the right to own the name of action. 2006.10.
102Yaoxian cement factory and China building materials group company, Shaanxi Province Building Materials Corporation debt to Investment Disputes (Civil); trial; the Supreme People's court; the central level "batch change borrow", "special dial lending" and "basic construction management fund" to the country of the investor of the enterprise, respectively according to the former State Planning Commission and the finance relevant measures for implementation, to apply, the former State Planning Commission and the Ministry of Finance approved by use of the units of the way, did not reflect the acting state capital capital function unit and the unit will be funded, is different from the ordinary happens between creditors and debtors debt to investment, which belongs to the policy of debt to capital. The debt can turn for state funded, who took the national capital capital function, to the question of who investment, belong to the relevant competent administrative organs of the state to exercise administrative power, does not belong to the scope of mediation in civil litigation. Due to the above issues of the dispute between the parties, shall be settled by the competent administrative authorities; have objection to the relevant competent administrative departments to coordinate the resolution of the specific administrative act, can be in accordance with the relevant provisions of the administrative law to seek relief. 2006.10.
103Zhang Zhiqiang v. Xuzhou Suning Appliance Co., violations of consumer rights dispute case (Civil); the second; Jiangsu Province, Xuzhou City Intermediate People's court; commercial operators to provide consumers with goods or services, shall follow the principle of good faith, the real situation of consumers also have the right to know their purchase, use of goods or services received. In cases of violations of consumer rights, consumer advocate commercial operators to provide goods have quality problems, and provide the corresponding evidence, commercial operators such as claims that the product does not exist quality problems, should advocate bear the burden of proof. 2006.10.
104Abdel Vahid v. Eastern Airlines international air passenger transport contract dispute case (Civil); the second; Shanghai City Intermediate People's court; according to the provisions of the international convention is the issue of, by an airline company and the actual carrier flight, part of another airline to another part of the actual carrier flight passengers transport, the two airlines aviation law is not continuous transportation. Passengers for the voyage of the actual carrier carrier responsibility, can choose to suit. An airline company was prosecuted for adding another airline to participate in the proceedings, the court may according to the convenience factor trial actual need, the litigation cost, passenger rights to decide whether to grant. Passengers paying full fare, the airlines will provide complete transportation service for the passenger; passenger to buy discounted tickets, airlines can of course corresponding to cancel some service. However, the airline stated "in discount tickets not refund, not to sign", is restricted to buy discounted tickets passengers because of their own reasons and refund or transfer, can not deprive the passengers have to pay the fare after in time flight arrived in the right. When the irresistible force caused flight delays, the airline will not transfer to other passengers transported to the destination, the airlines after the obligation in the origin to transfer passengers explicitly told to reach the destination whether to sign service, as well as providing transfer service passengers should be handled in the not travel procedures. According to the "1955 in Hague" Warsaw convention amendment nineteenth, Twentieth (1) paragraph, airlines do not do this obligation or cannot prove that he has done this obligation, and causes losses to the transfer of passengers, it shall bear the liability for compensation. 2006.10.
105Jiao Zhigang v. peaceful Public Security Bureau Public Security Management Punishment Decision of administrative disputes (administrative); the second; Tianjin first intermediate people's court; the decision on administrative punishment, according to law, make a once it takes effect, its legal effect is only part of the administrative relative person, are also applicable to administrative organs, can not be arbitrary revocation. Administrative punishment decision is effective if the arbitrary revocation, is not conducive to the restoration of social order and stability. Two, the management of public security administrative punishment decision error only in accordance with the statutory procedures to correct. "The supervision work rules" is the Ministry of public security to safeguard the public security organs and people's police to perform their duties properly, prevent and correct illegal and improper behavior of law enforcement, protection of citizens, legal persons and other organizations of the legitimate rights and interests and the development of internal rules, can not become the legal basis for the administrative punishment decision making of public security management. Three, in the procedure of administrative punishment has been carrying out allows the statements and defenses of the parties principle, can only be identified and the correct application of the law to the facts, do not confuse right and wrong, but not to the offender escape punishment. 2006.10.
106China Nonferrous Metals Industry Changsha survey and Design Institute of Hainan province and the rich real estate development company, Changsha Company, Hainan province Kingsway real estate development company building cooperation contract dispute case (Civil); trial; the Supreme People's court; based on re trial cases in accordance with the procedure for trial supervision, is a legally effective judgment, ruling is wrong, or there is evidence of a legally effective mediation violates the principle of voluntary mediation or the mediation agreement illegal content. Correct the mistakes is the basic function of retrial. Therefore, the retrial shall be carried out in accordance with the scope of trial, but not beyond the scope of the referee. 2006.11.
107Xinjiang Yakun commercial trade Co., Ltd. and Xinjiang Jinghe Kangrui cotton processing Co., Ltd. sale contract dispute (Civil); trial; the Supreme People's court; in the case of disputes in contract review, confirm the liability of breaching party shall follow the principle of "the rule of foreseeability", namely, the default party only for its breach of contract caused to the other party liability for loss, due to market risk factors, both parties are unforeseeable losses, due to the non defaulting party caused by fault, also there is no causal relationship between and breach, the defaulting party does not assume liability to pay compensation. 2006.11.
108Founder, a research institute and Gaoshutianli company, high technique company computer software copyright infringement dispute (Civil); retrial; the Supreme People's court; a, according to the "Regulations of PRC Civil Procedure Law" in article sixty-seventh, the legal fact proved by notarization procedure, unless there is evidence to the outside the people's court shall, as a basis for finding the facts. But if the illegal to take the way of proof itself, even if the proof of notarization, the obtained evidence also cannot be used as a basis of fact. Two, although the law made more provisions for the illegal acts, but because of the social life widely and the complexity of the benefit relationship, the law more time for illegal behavior does not take the exhaustive list, but the determination of rules of law, judges according to the interests of the measure, value judgment. Three, in view of computer software copyright infringement behavior of strong concealment, difficult to investigate and collect evidence, the infringee through notarial evidence, its purpose is not unfair, their behavior does not harm the social public interests and the legitimate rights and interests of others, at the same time, the evidence also helps to solve the difficult problem of evidence in such cases, is beneficial to the deterrence and to stop the infringing act, to strengthen the protection of intellectual property rights, so the notary evidence shall be deemed to be valid, the obtained evidence should be regarded as the facts of the case evidence. Four, is accused of illegally selling pirated software installed, the behavior of people, if not the installation, sales of software to provide relevant evidence, it shall be presumed to its violation of the copyright owner of the right of reproduction and distribution rights. 2006.11.
109Shanghai Huangpu District people's Procuratorate v. Meng, He Likang network theft (criminal); a trial; Shanghai Huangpu District people's court; a, in accordance with legal procedures if electronic files collected cases and relevance, and can objectively reflect the real situation in the case with other evidence, in accordance with the law can become the evidence in criminal procedure. Virtual behavior, behavior of two people through the network implementation if the object protected by criminal law in real life harm constitutes a crime, shall be subject to criminal punishment. Three, secret stealing virtual property in the network environment constitute the crime of theft, loss of the amount shall be determined according to the actual amount of theft of property of virtual property in the real life counterpart. Virtual property in real life corresponding to the amount of property, virtual property can be determined by the actual transaction prices in the real life. The object of the crime of theft in four, is a wide variety of public and private property, different types of theft of public or private property, that will be accomplished crime, attempted a different method. In judicial practice, there is no specific cases of attempted theft that standard, should according to the criminal law twenty-third stipulation "started to commit a crime", "unfinished crime", "unfinished crime is due to reasons other than the criminals will" three conditions, combined with the theft of property types and other specific circumstances, that the crime of theft if the attempt. Virtual property in network theft, crime should be identified. As for whether the actor to make the final processing of stolen goods, and killed the personnel is to recover the virtual property, independent form of crime and behavior has been completed. 2006.11.
110Dispute over compensation for Ma Qing v. Grand Hotel personal damage (Civil); the second; Nanjing City Intermediate People's court; according to the Supreme People's court "on hearing personal injury compensation case applicable legal interpretation" provisions of article sixth, security obligor shall perform the obligation of safety guarantee in the reasonable scope, reasonable limits should be based on the common sense to determine. In the security obligation has gone as far as to the premise of safety and security obligations, with full civil capacity of people because of their own judgment error caused damages occur, the consequences by the acts themselves bear. 2006.11.
111Zhengzhou No.2 Construction Co. v. king Liangchu public housing sale agreement contract dispute case (Civil); the second; Zhengzhou City Intermediate People's court, the distinction between ownership of the building; a person only in the building their own proprietary part ownership of four functions, without the building its ownership and property management, repair the license, not sharing parts of the building's exercise of rights. Two, public housing units sold public housing sharing parts to bear the responsibility to repair. Units sold in the buyer signed sales agreement and public housing, in order not to increase their own side of the housing sold the burden of repair, the buyer shall not impede the implementation of public housing sharing parts safety behavior, this Agreement does not limit the buyer the legitimate exercise of their rights, so it is a legitimate and effective. 2006.11.
112Dalian East Housing Development Co. Ltd. and Liaoning Jinli building industrial company, Liaoning Macao Jinli real estate development company limited the use right of state-owned land transfer contract dispute case (Civil); a trial; the Supreme People's court; a, according to the "Regulations of the people's Republic of general principles of civil law" article seventy-ninth, article eightieth, the creditor may be the contract rights fully or partly transferred to third people, transfer only notice to the debtor can be without the need to obtain the consent of the debtor. Therefore, the transfer is completed by the original creditor, which is no longer a contract the subject of rights, which is lost in his own name as a creditor to a debtor advocate the rights of contract qualification. Two, the court rejected the prosecution by the people's court, the ruling has already become legally effective, if the parties of the decision not to accept, in addition to the start of the trial supervision procedure re hearing of the case, not after the lawsuit claims and the effect that the opposite content, also cannot be repeated prosecution on the same subject matter of litigation. 2006.12.
113Hongrun Jinyuan (Xiamen) Real Estate Development Company Limited and Peng Xiong Hun, Hongrun Group Real Estate Investment Limited commercial housing sale contract dispute case (Civil); trial; the Supreme People's court; according to the "PRC Civil Procedure Law" article 108th (four) and the provisions of article thirty-eighth, the jurisdiction objection refers to the parties to the case is accepted by the people's court or by the action of the scope of the jurisdiction of the people's court challenge. The parties shall have the right to put forward objection to jurisdiction, but the parties to it is not proper defendant on the grounds of jurisdiction objection, do not meet the above requirements, do not belong to the jurisdiction objection. Whether the parties belong to the proper defendant, the people's court hearing to determine the entity shall. 2006.12.
114Xi'an City People's Procuratorate v. Pei Guoliang business secrets (criminal); the second; Xi'an City Intermediate People's court; a, according to the Supreme People's court "about some problems in the implementation of" the people's Republic of China Criminal Procedure Law > interpretation "of article eighty-sixth (five) of the rules, behavior person steal others technical secrets for our company use, thus to the right technology secret cause especially serious consequences, shall be investigated for criminal responsibility behavior in the crime of infringement of commercial secrets, can according to the plaintiff of the supplementary civil litigation request, the behavior of companies listed as the defendant investigation of civil liability of infringement. Two, according to the Supreme People's court "about the provisions of the" criminal incidental civil litigation scope of the provisions of article second, and suffered from the right person for technical secrets were stolen material losses, including the actual loss has been suffered and the inexorable market share to be cut, competitiveness weaker loss. The infringer using stolen technology secret performance of technology contract signed with others, so as to reap huge profits, shall be by the infringer during the period of the profits derived from the infringement by determining the amount to give the right amount of compensation technology secret. Only if the infringement is signed by the total amount of the contract, can not be determined by the infringer during the period of the profits derived from the infringement by the industry average profit, according to the standard calculation of the infringer profits. 2006.12.
115Xu Kaisu Shanghai Baosteel Metallurgical Construction Company reputation infringement dispute case (Civil); the second; the Shanghai second intermediate people's court; reputation refers to the citizen viewpoints, behavior, function, performance about the citizen moral character, ability and other qualities of the general social evaluation, is the general understanding of the social values of the citizens. Citizens shall enjoy the right of reputation, the law prohibits the use of insult, libel or other means to damage the reputation of citizens, an important part of evaluation of the employing units of labor, work and the social evaluation. The employer to evaluate false, bad for workers, enough to affect the workers employed in the future job search and work life, constitute a breach of the labor right of reputation. 2006.12.
116Dispute over compensation for Wu Kaisu Zhu Chao, dawn school personal injury (Civil); a trial; Huaian city Chuzhou District People's court; a, according to the sixteenth general principles of civil law, and the Supreme People's court "about some problems of implementation of the general principles of the civil law of people's Republic of China > views (for Trial Implementation)" the provisions of section twenty-second, the guardian will the minor students sent to the school, the duty of guardianship did not transfer to the school; the school also not because of an underage students to study, come very naturally to assume the duties of guardianship for the students. The guardian if you want some or all of the guardianship duties entrusted to the school, must make clear the principal and the school agreed. No explicit delegate agreed, commissioned by the school Guardian cannot presume to accept, to go to school the minor students take part or all of the duties of guardianship. Two, according to the Supreme People's court "on hearing personal injury compensation case applicable legal interpretation" provisions of article seventh, studying in school to minor students, although there is no school guardianship duties, but the education, management and protection obligations. The school performance of education, management, protection obligations properly, and the minor students injury on campus and other minor students, in addition to the perpetrators of the guardian shall bear liability, the school also should bear the responsibility for compensation and fault corresponding. 2006.12.
117Fujian province Longhai City People's Procuratorate v. Yang Yizhang intentional injury (criminal); the death penalty review; the Supreme People's court; behavior person beating and killing people, has constituted the crime of intentional injury, but the main reason is the victim's death was suffering from serious illness, the main reason people beating behavior not only is the victim's death, the cause of death, people should not bear full responsibility for the death of the victim results. In this particular case, if a person does not have the statutory mitigating circumstances, can be provided for in the second paragraph sixty-third of the criminal law, punishment below the legally prescribed punishment. 2007.1.
118Xiangcai Securities Co. Ltd and China Everbright Bank Chinese Changsha branch Xinhua, third people in Hunan Province peace Light Technology Industrial Co. Ltd. the loan contract subrogation dispute case (Civil); trial; the Supreme People's court; a, customers and the securities operating institutions signed a contract, agreed to by the customer funds will be delivered to the securities operating institutions, entrust the securities business in a certain period of time to invest in the stock market, and the securities operating institutions on a regular basis to the customers to pay a return on investment. Such contracts are commissioned financing contract. Two, customers and securities institutions in the entrust financing contract, from securities institutions to ensure customer investment income reaches a certain proportion, in part by the lack of securities institutions complement. Such interest is fixed repayment terms agreed to guarantee entrust financial contract, namely, the minimum guarantee clause. According to the "Securities Law" provisions of the people's Republic of China in 143rd, a securities firm shall not make any promise in any way for customer securities trading income or securities trading loss compensation. The guarantee clause is invalid due to violation of the provisions of. Because the objective clause or core provisions guarantee clause belongs to entrust financial contract, so the base clause is invalid or entrust financial contract invalidity of the whole. 2007.1.
119Wang Xinghua, Wang Zhenzhong, Lv Wenfu, Mei Mingyu and Heilongjiang radio factory patent disputes license contract case (Civil); retrial; the Supreme People's court; patent and non patent people together as a party to the contract, signed a patent license contract with others, the contract clearly agreed the other non patent human rights and obligations, the patentee exercise of patent right shall be bound by the contract, non consent by other non patentee, the patentee the right to independently the discharge of the patent licensing contract. 2007.1.
120Shanghai Huangpu District people's Procuratorate v. Chen Xiangguo kidnapping (criminal); a trial; Shanghai Huangpu District people's court; a, extortion and kidnapping, refers to the act of kidnapping others as hostages, the hostages safety to coerce the kidnapped person third people outside, extortion to the third of human behavior. Although the actors took control of the victim's personal freedom, but the objective is not to the victim is a third victim hostage to coerce outside and extortion to third people, but the implementation of violence, coercion to direct the robbing the victim, the act does not constitute the crime of kidnapping. Two, the crime of illegal detention for debts, is refers to the act to repayment of the debt (including legal debt and debt for the purpose of illegal), detention, detention or other means to deliberately illegal deprivation of personal freedom act. If you can not confirm the existence of debtor creditor relationship between offenders and victims, it does not constitute the crime of illegal detention for debts. Three. For the victim to violence behavior, stress to hand over their property, because the property is not around, people had to agree to the victim told others sent property, also had to wait with the arrival of the property. This behavior is not the victim hostage extortion to victims of third people outside, but in line with the "robbery violence on the spot, stress characteristic method to plunder property", in accordance with the provisions of article 263rd of the criminal law shall be convicted and punished. 2007.1.
121Case decided Liao Zongrong v. Chongqing Public Security Bureau Traffic Management Bureau of the second detachment of punishment in the road traffic administration (Administration); a trial; Chongqing city Yuzhong District People's court; a, in accordance with the provisions of article eighty-seventh of the law on road traffic safety, traffic police on duty, illegal act of road safety are found on the local area, have the right to correct. The traffic police violations of the law on presentation if there is no evidence to the contrary to deny its objective reality, and there is no relation between the evidence to prove that the traffic police and the violator shall, traffic police statement as the preponderance of the evidence the existence of illegal behavior. Two, the traffic police a human law enforcement, illegal acts on people on the spot to give a fine of 200 yuan the following, in accordance with the law on road traffic safety law on the management, the convenience of the masses, ensure the road traffic order, security, open principle and the law the 107th regulation, also in line with the "procedures" provisions of article eighth dealing with violations of road traffic safety, the specific administrative act is legal. 2007.1.
122Bell Wang Corporation v. Wuxi City Labor Bureau inductrial injury decision of administrative disputes (administrative); the second; Wuxi City Intermediate People's court; that, in a "Regulations" before the implementation of the industrial injury insurance of inductrial injury by the people's court decision to withdraw, and re - start in the "industrial injury insurance regulations" after the implementation of work-related injury confirmation procedures, shall carry out the "Regulations" provisions on work-related injury insurance. Two, "work-related injury confirmation method" the provisions of article eighth, investigation and verification of work-related injury confirmation procedure, to the administrative departments of labor security according to the need for. The investigation is not each work-related injury confirmation procedures necessary procedure. In the end of job injury identification procedure, the administrative departments of labor security if you have mastered the relevant staff by accident evidence, restart the work-related injury program can no longer check. Task three, the people's court in administrative litigation, is to review the legality of the sued specific administrative action. The people's court only about the specific administrative acts being sued to make facts and evidence, it may be whether the specific administrative act of the legitimacy of making correct evaluation. 2007.1.
123Suzhou Dongbao Properties Limited, Suzhou Jincheng Company Limited by Guarantee, Suzhou Dongbao metal materials Co., Ltd., Suzhou City, Dongbao has a black metal materials Co., Ltd., Xu Ada and Suzhou department store company, Jiangsu girl spring group asset transfer contract dispute case (Civil); trial; the Supreme People's court; multiple copies of the contract, party a signing of the agreement, the arbitration clause or agreement, neither the arbitration clause, there is no clear as its agreed arbitration contract annex, or accept the agreement arbitration clause in the contract on the jurisdiction of the arbitration agreement. Although has some relevance between the contract, but we cannot therefore deny their independence. Two, according to the relevant provisions of arbitration law, the parties adopting arbitration to resolve disputes, should be willing to reach an arbitration agreement; arbitration agreement is not reached, one party applies for arbitration, the Arbitration Commission shall not accept the. Therefore, the parties agreed arbitration jurisdiction must have clear meaning and conclude an arbitration agreement, the arbitration clause is only between reach an arbitration agreement the parties have the legal effect. 2007.2.
124China Haohua chemical (Group) Corporation and China Investments International Ltd loan contract dispute (Civil); trial; the Supreme People's court; the parties to a contract, in order to solve possible disputes expressly agreed in the jurisdiction of the court. Since then a contract formed after based on the transfer, but the new creditor and debtor, guarantor fails to agree the jurisdiction of the court, also did not rule out the original contract on the jurisdiction of the court agreed, as long as the original agreement jurisdiction agreement is not in violation of the law, should be identified to effectively. 2007.2.
125Agricultural Finance Limited company and Guangdong Samsung enterprise (Group) Company axle Limited by Share Ltd guarantee contract dispute (Civil); trial; the Supreme People's court; according to the Supreme People's court "on the application of" PRC security law "interpretation of several issues" regulations, the mortgage contract is confirmed to be invalid, the parties bear the responsibility should be according to their degree of fault recognition. Due to the violation of laws, administrative rules and regulations of our country and the invalid contract of mortgage, because the law, administrative rules and regulations in our country are open to the public, the parties should understand the relevant provisions in the law, administrative rules and regulations of our country, so that the parties should have some fault is not valid for the mortgage contract. 2007.2.
126Li Haifeng v. Ye Ji branch of the Public Security Bureau, Anhui TV and other infringing the right of reputation, the right of portrait dispute case (Civil); the second; Hefei City Intermediate People's court; the public security organs to provide relevant information to the news media in the detection of cases, for the news media for the news, should the careful attention obligation to protect the legitimate rights and interests of others. Not this obligation to others the right of reputation infringement, should bear corresponding civil liability. Legality, act of investigation of public security organs with the news media publicity and legitimacy and news media in news reports of negligence, shall not constitute a statutory exemption from the public security organs to the civil liability. 2007.2.
127Home Co. v. Senderui company contract dispute case (Civil); the second; Tianjin Second Intermediate People's court; the contract unconscionability, is a party to the contract to use their own advantages, or use the other did not experience in the case, signed a contract with each other significantly to set their own side of favorable terms, as the two sides the rights and obligations under the contract and the objective interests based on serious imbalance, in clear violation of the principle of fairness. The two sides signed the contract set certain seemingly on one side is obviously unfavorable terms, but the terms of the establishment is the true meaning of the parties, the essence of which is to balance the rights and obligations of both parties. In this case, a party to the contract unconscionability claim to rescind the contract, and shall not be supported. 2007.2.
128Guannan County Bureau of budget administration, two-phase and Co. v. Tao Qin trademark infringement case (Civil); the second; Jiangsu Province Higher People's court; according to the "Regulations" of article forty-ninth in the implementation of the Trademark Law of the people's Republic of China, trademark contains the names of the exclusive right to use a registered trademark, one has no right to forbid others from legitimate use of the place name. According to the Supreme People's court "on hearing the law applicable to a number of cases of civil disputes trademark interpretation" of the provisions of Article 1, with the registered trademark of the same or similar words as the number of enterprises in the same or highlight the use of similar goods, easy to make the relevant public cause misidentification, belongs to the trademark infringement behavior. According to the above provisions, the use of a registered trademark of person names to others is well intentioned, is to show the origin or geographical origin, after use will not cause the relevant public confusion or misunderstanding, the proper use of part of the law. If the perpetrator of the use of place names are not in good faith, its main purpose is to cling to others has a geographical name trademarks well-known high goodwill, so that the relevant public confusion or misunderstanding, the use behavior does not belong to the right to use a trademark infringement, and. 2007.2.
129Laoshan Land Bureau and the south too much home company of state-owned land use right transfer contract dispute case (Civil); trial; the Supreme People's court; a, according to the "contract law" the people's Republic of China, the provisions of article forty-fifth, the parties to the contract agreed to the conditions, is refers in the contract agreed to certain conditions, to conditions for success or not as the validity of the contract occur according to the. The condition must be happening in the future, uncertain, contract, legal facts. The government organs of the relevant matters or contract approval or approval authority and responsibility, the provisions in laws and administrative regulations, does not belong to the category of the parties. The parties to the rights and duties of the contract agreed to the conditions, not in accordance with law. Two, according to the "contract law" article fifty-second of the people's Republic of China (five) and the Supreme People's court "interpretation of several issues concerning the application of people's Republic of China Contract Law > (a)" the provisions of section fourth, to confirm the contract null and void in accordance with laws and administrative regulations as the basis, not by local regulations and the administrative rules and regulations as the basis. The parties signed the "state-owned land use right transfer contract" agreed upon in the land use of land use and planning and assessment of different, if may result in land leasing contract below, the local government in accordance with state regulations to determine the lowest use right belongs to the influence factors, state-owned land transfer contract price clause use right, but does not lead to invalidation of a contract for transferring state-owned land use rights. Three, according to the "Regulations of the people's Republic of general principles of civil law" in article sixth, civil subject to engage in civil activities, in addition to must abide by the law, no provisions in the law case shall also comply with national policy. The State Council issued the relevant norms issued by the land market order rectification notice and the relevant ministries of the State Council to implement regulations and other normative documents, which belongs to the national policy. In accordance with the provisions of relevant state policies, in 2002 July 1 days without the city, the county government pre-approval or sign a written project development agreement and thereafter the operating agreement transferring land, should be in accordance with the relevant provisions to sold by tender auction listing means. Improve the bidding auction listing procedures, which belongs to the alteration or termination of a contract of transferring state-owned land use rights, related to the actual performance and whether the contract can be lifted, it shall not affect the validity and limitation of the contract. Four, the rescission right belongs to the right of formation in the entity aspect, the procedure is shown as the action of formation. According to the proposed in the no litigation request, the people's court not by its own immediate judgment. 2007.3.
130Juan Li v. eBay eBay should the network information service (Shanghai) Co., Ltd service contract dispute case (Civil); a trial; Shanghai Huangpu District people's court; a, transactions in the network, which brokered the contract relationship between provide transaction platform site and transaction parties, website for contract provisions of the obligation of the broker such as shall, on matters related to contract to contract both sides to report truthfully, and shall not intentionally and contracts related to conceal important facts or providing false information. If the violation of these obligations, the website should bear the corresponding legal responsibility. Two, the parties entered into a contract with others through the website network trading platform, but not the actual performance of the contract, but the use of personal information of the other party site provided by the contract, the contact each other on the phone with a completely different from the network of contract for the sale of the new contract, the new contract with unrelated website, the parties arising out of the contract the losses suffered, the website does not assume liability to pay compensation. 2007.3.
131Bai Guanghua refuses to accept the reeducation through labor management committee of Tianjin city reeducation through labor decision case (administrative); the second; Tianjin Municipal Senior People's court; "reeducation through labor" Twelfth measures for the provisions of the second paragraph: "by the decision of reeducation through labor, refuses to accept the main fact, the examination and approval authorities shall organize and recheck". Here the "review" should be understood as the original examination and approval authority to review decisions of reeducation through labor, and cannot understand or regarded as administrative reconsideration. The existing laws, rules and regulations in our country has not stipulated in administrative litigation cases against the reeducation through labor must pass through the pre procedure of administrative reconsideration, the parties accept the decision of reeducation through labor, have the right to "Administrative Reconsideration Law stipulates the freedom of choice", apply for administrative reconsideration or bring an administrative lawsuit to the people's court. 2007.3.
132Daqing Zhenfu Real Estate Development Company Limited and the Daqing Municipal People's government debt dispute case (Civil); trial; the Supreme People's court; according to the "contract law" regulation of the people's Republic of China in second, the contract is equal to the main natural persons, legal persons, other organizations set up, change, terminate civil rights and obligations protocol. The legal response to the call of the government to government, written report and by the government for approval in the form of municipal construction, the government without notice in case of unilateral legal person corporate involvement in municipal construction and enjoy the preferential policy decisions, legal only in accordance with the government decided to implement the equality of the main civil law, not the sense of the relationship between legal persons and the government, the parties have not formed on the relationship between civil contract. Therefore the dispute, despite the dispute between the two sides have civil certain factors, also do not belong to the people's court in civil cases. 2007.4.
133Tianjin city Hongqiao District People's Procuratorate v. Li Huanqiang vandalism case (criminal); a trial; Tianjin Hongqiao District People's court; a, according to the Supreme People's court "about the specific application of law in the trial of cases of theft problems of interpretation" of article twelfth (four) of the rules, behavior person does not have the illegal possession of public or private property the objective, but for other purposes to steal a motor vehicle caused damage to the vehicle, shall be in accordance with the provisions of article 275th of the criminal law on the crime of intentional destruction of property, conviction and punishment. Two, people from the parking lot to others after the damage of vehicle motor vehicle theft, constitute the crime of intentional destruction of property, although there are between the vehicle and open parking units and owners of safekeeping contract relationship, but the unit does not belong to the subject of criminal incidental civil compensation shall bear the responsibility of the owners, the contract dispute caused by the same the crime of criminal incidental civil compensation liability system of different legal relations. The owner in the unit for the criminal supplementary civil defendant, and advocated the unit to the crime person for the criminal supplementary civil compensation liability shall bear joint and several liability, in accordance with the law shall not support. Three, according to the Supreme People's court "about the rules of criminal incidental civil action" the first, second, personal right is the crime of infringing suffered material damage or destroy property by criminals has suffered material losses, can bring criminal incidental civil action. Suffer from crime victims by the material loss, refers to the actual loss due to crime has suffered and the inexorable loss. Accordingly, the scope of criminal incidental civil compensation shall be limited to the direct economic losses suffered by the victim of crime. 2007.4.
134Wuhan China Securities labor Service Corporation and Hong Kong and Macao Cheung Hing Industrial return of property disputes (Civil); retrial; the Supreme People's court; a, according to the "Regulations of PRC Civil Procedure Law" in article eighty-fifth, the people's court may, according to party mediation, must also be in fact clear in fact distinguish non. Two, for a legally effective mediation, the parties did not apply for retrial, but the damage to the outsider's legitimate rights and interests, the people's court finds definite error, must be a retrial, the people's court for retrial according to the procedure of judicial supervision. 2007.5.
135Zhu Yong won the world peace, the person damage compensate dispute case (Civil); a trial; Anhui province in the East County People's court; according to the provisions of the Supreme People's court "on certain issues concerning the application of law in the trial of personal injury compensation case interpretation" in article fourteenth, labour relationship is the legal relationship refers to help people free to be help workers handling affairs and in between. To help workers because of helper activity suffers from a personal injury, is to help workers shall be liable for compensation. 2007.5.
136Zhang Guiping v. Wang Hua equity transfer contract dispute case (Civil); a trial; Jiangsu Province Higher People's court, the company law; one of the first paragraph of the original one hundred and forty-seven "held by the promoters of the company shall transfer," within three years of the date of incorporation of the company, the company set up to prevent the promoters for improper benefits, and through the transfer of shares to escape the sponsors may bear the legal responsibility. Two, the Limited by Share Ltd launched in three years after the company was founded, signed the equity transfer agreement with others, agreed to be founded three years after the transferee equity transfer procedures, and agreed in the agreement will be entrusted to the transferee equity, the equity transfer contract is not contrary to the original 147th anti corporate law of the first paragraph provisions. During the period of the promoters' shares lock up agreement stipulated in the company law, equity will be entrusted to the future of the transferee to make, also does not violate the mandatory provisions of the law, and the two sides for the formal registration of shares transfer, legal responsibility of the above behavior does not exempt transfer stock promoters, does not absolve the responsibility of shareholders. Therefore, the equity transfer contract shall be deemed to be valid. 2007.5.
137Jiangxi Zhenye Real Estate Development Company Limited and the Jiangxi Construction Engineering Limited company of China construction contract dispute case (Civil); trial; the Supreme People's court; according to the Supreme People's court "several regulations about the civil action evidence" of the provisions of article thirty-fourth, the parties concerned shall submit evidential materials in the people's court within the time limit of burden of proof, the parties not submitted within the specified time period, regarded as giving up the right, the people's court may find the facts of the case according to the other party to provide evidence. However, be regarded as giving up the right of one of the parties shall still enjoy the right of defense, the people's court shall review the defense, defense right should be adopted, support. 2007.6.
138Germany Europe Exchange Co. Ltd. and Suifenhe Qingyun trade limited company cooperation agreement disputes (Civil); trial; the Supreme People's court; contract clearly agreed in the contract by contract to the jurisdiction of the court, then in other parts of the contract matters not signed the supplemental agreement, but did not modify the original contract supplemental agreement the validity of jurisdiction clause, clause under the jurisdiction of the contract is not due to the supplementary agreement signed between the parties change, contract dispute should be the signing of the contract by the court. 2007.6.
139Gaochun County Civil Affairs Bureau v. Wang Changsheng, Lv Fang, Tian An insurance company Jiangsu branch traffic accident damage compensation dispute case (Civil); the second; Nanjing City Intermediate People's court; caused by traffic accident personal injury compensation cases, death the victim for the city's outcast, by the public security departments not published enlightenment discover their close relatives, the Civil Affairs Department of the government as a plaintiff litigation request, compensation obligor shall assume the liability of compensation, the provisions of the civil affairs department is not a legal right to compensation, there is no civil rights and obligations relationship with the case, and the legal duties do not include representative or replace the city life of vagrants and Beggars with no litigation therefore, the civil affairs department is not the case the proper subject of litigation, the prosecution shall be rejected. 2007.6.
140Starbucks Corporation, unified Starbucks v. Shanghai, Shanghai Starbucks Starbucks branch trademark infringement and unfair competition disputes (Civil); the second; the Shanghai Municipal Higher People's court; the well-known trademark of others as their own enterprise name, enough to cause the relevant public all people mistake or misunderstanding to the business people and the annotation book business name, belongs to trademark law article fifty-second (five) provision of "causing other damage to others, the exclusive right to use a registered trademark" behavior, he shall assume the tort liability according to law. 2007.6.
141Settlement of disputes in Jintan city construction and installation engineering company and the Daqing City Dragon Real Estate Development Company Limited construction project (Civil); trial; the Supreme People's court; in the case of the construction contract dispute case, the court of first instance for the employer and the contractor has completed the project cost, material analysis, unqualified refund price engineering repair costs and other matters of disputes, the parties based on the application, respectively entrust appraisal institutions appraisal on these matters, the court of first instance tissue after examination, the parties still have objections to appeal against the conclusion of the second trial, supplementary examination, the parties to the appraisal conclusion not provide sufficient evidence to the contrary and rebuttal reasons the proof can be identified, the identification conclusion (2007.7)
142Liaoning province Haicheng City Ganquan Town Guanghua bag factory to apply for State Compensation Confirmation case (administrative); appeal; the Supreme People's court; a, according to the "PRC State Compensation Law" thirty-first and "Supreme People's Court on the implementation of people's Republic of China State Compensation Law > several issues of interpretation" second provisions, the people's court in civil litigation, administrative litigation process, law enforcement measures, preservative measures or judgment, ruling or other effective legal document execution error, and caused the damage, it shall bear the liability for compensation from the country. Two, the parties claim their legitimate rights and interests in accordance with the law, the people's court shall support, the parties to the execution time has passed, to execute judgment for state compensation confirmation, does not belong to the people's court has accepted the case scope of the state compensation confirmation, the people's court shall not accept; has been accepted, it shall reject the application. 2007.7.
143Fuzhou City People's Procuratorate v. Peng song homicide (criminal); the second; Fujian Province Higher People's court; behavior person because of drug to produce the abnormal state of mind and the implementation of harm the social behavior, which constitutes a crime, shall bear criminal responsibility according to law. 2007.7.
144Dispute over compensation for Luo Qian v. aoshida company personal injury (Civil); a trial; Taizhou province Zhejiang city Huangyan District People's court; a, engaged in social activities of civil subject, if the activity has the danger damaging others, the civil subject has the reasonable limit within the safety guarantee obligation. Do not perform the obligation of safety guarantee, which belongs to the 106th general principles of civil law "provisions of the non performance of other obligations", should bear corresponding civil liability. Two, in the production operators to the premises, the natural person temporary labour acquiescence by producers and operators, even without the formation of the legal relationship of labor official, production operators still retained within reasonable limits of the security obligation of the natural person. 2007.7.
145The contract zone Beijing branch v. Copper River company, the world company of carriage of goods by sea to claim dispute case (Civil); the second; Zhejiang Province Higher People's court; a carrier, in the performance of the contract of carriage of goods by sea delivery obligations, should be on cargo records in accordance with the clean bill of lading delivery. Even if the carrier to the loading port ullage report the actual received goods or the shipment with a clean bill of lading at odds, the consignee shall have the right in accordance with the provisions of article seventy-seventh in accordance with the law, the bill of lading records to claim the goods. Two, the crude oil trade contract and transport documents were not agreed loading, discharging port measurement method, the actual handover the metering flowmeter, shore tanks measurement and oil tank air distance measurement in different. In this case, the consignee to record and the descriptions of bill of lading unloading port shore tanks measurement certificate does not match that shortage of goods, but the bank can provide measurement data occurring during the carrier's responsibility, also cannot provide effective evidence that crude oil shortage occurred during the carrier liability, carrier for loading and unloading port cabin ullage report and dry cabin report and bill of lading conform to defense, the number of oil can be based on the actual delivery of the ullage report and dry cabin report confirmed. Provided by the consignee to shore tanks weight measurement certificate, unless otherwise agreed by the carrier, has not proved the validity of the crude oil delivery quantity. 2007.7.
146The Republic of Korea to the people's Republic of China, the Republic of Korea, the request for extradition criminal civil case of Bian Renhao (extradition); the Supreme People's court; according to the relevant provisions of "Extradition Law of the people's Republic of China" and "Extradition Law of the people's Republic of China and the Republic of Korea treaty", the Republic of Korea to our request for extradition of criminals, must comply with the double crime the principle, which is indicated in the request for extradition of the requested action in accordance with the provisions of the Republic of Korea "penal code" and the "PRC Criminal Law" constitute crime. The Republic of Korea for the execution of punishment and to our request for extradition, the extradition request, the requested is not yet finished serving sentence shall be not less than six months. If the Republic of Korea is based on the default judgment of extradition requests, must promise to trial in the court case to the person sought in extradition, otherwise it will be China's refusal to extradite. In the case of the Supreme People's court has made a ruling in accordance with the extradition treaty, and that the judicial organs of China's criminal proceedings against Bian Renhao suspected of committing a crime of contract fraud in China, on whether to extradite Bian Renhao or to grant extradition but decided to postpone the extradition decision by the state Council, china. 2007.8.
147Changzhi Huamao non-staple food Fruit Co. Ltd. and Changzhi Jiechang real estate development company limited to develop real estate contract dispute case (Civil); trial; the Supreme People's court; the cooperative development of real estate contract, refers to the parties to provide land use rights, capital, joint investment, profit sharing, risk sharing the cooperative development of real estate projects, contract. Land use right into the party to the change of land use rights for all parties to the public or item company name, usually is the important content of the contract. Confirm a contract is to invest in the land use rights of the cooperative development of real estate contract, or a single contract of assignment of land use rights, should be based on the contract the parties whether to judge the real estate development projects share profits, risks etc.. 2007.8.
148Sichuan Province Luxian County people's Procuratorate v. Huang Yi, Yuan Xiaojun and other fraud (criminal); a trial; Sichuan people's court in Luxian County province; the act of illegal possession of property to induce method, take the fictional facts, conceal the truth, set a trap to others to participate in gambling, and by fraud means to control the game winning results, thus defrauding the property of others, the larger amount, constitute a crime of fraud, should be in accordance with the "PRC Criminal Law" provisions of article 266th convicted and punished. 2007.8.
149Land Yanzuo v. Shanghai municipal housing and Land Administration Bureau of Zhabei District house dismantlement administrative ruling case (administrative); the second; the Shanghai second intermediate people's court; demolition of houses, the demolition, housing tenant for the demolition assessment report houses have objection, have the right to apply for re assessment. Therefore, based on the principle of due process, for the protection of the demolition, housing tenant for the demolition assessment report in accordance with the law for the evaluation of housing rights, the person should be taken timely assessment report housing was removed by the demolition, housing tenant. The house dismantlement administrative ruling authorities in the ruling process, also should be the assessment report whether housing is removed by the demolition, housing tenant to find out problems, and to ensure that the ruling will assess the report by the demolition, housing tenant. The administrative ruling did not identify the problems that the demolition of housing to housing units administrative decisions, and cannot prove demolition assessment report of housing has been by the demolition, housing tenant, house dismantlement administrative ruling is a fact that is not clear, the main evidence for violation of the statutory procedures, and. The demolition, housing tenant to the people's court for cancellation of the award, the people's court shall support. 2007.8.
150Shenzhen City Commercial Bank Baoan branch and Hunan Changlian Xingchang Refco Group Ltd, Shenzhen Min Xin Industrial Co. Ltd, Guangdong Jin Huiyuan investment Company Limited by Guarantee, the northwest of the information technology Limited by Share Ltd, Wu Zhong Instrument Group Co. Ltd., Shenzhen Guoan Union Alpha Cpa Ltd return of funds guarantee contract dispute case (Civil); trial; the Supreme People's court; financial institutions for the debtor to provide false proof of funds, the liability for compensation should be on the creditor losses false proof of funds, should review the creditor whether loss of reasonable reliance on false certificates issued by the financial institutions or use based on the cause, whether there is a causal relationship between the loss of financial institutions and creditors providing false evidence behavior. If there is no causal relationship between the loss of financial institutions and creditors of the false proof of the act, shall bear the liability for compensation issues false proof of funds, financial institutions should not creditors' loss. 2007.9.
151Funing Xinxing packing material factory, Funing public asset management Co. Ltd. and Funing County Rural Credit Cooperatives, Qinhuangdao Yuandong Petrochemical Co. Ltd., Qinhuangdao Jinjia Limited by Share Ltd loan guarantee contract dispute (Civil); trial; the Supreme People's court; according to the provisions of the Supreme People's court "on certain issues concerning the application of people's Republic of China guarantee" interpretation "of article thirty-ninth, the main parties to the contract agreement with the new loan to repay the old borrowing, except when he knows or should know, that person shall not bear civil liability. But the new and the old loan with a loan guarantee, not exempt the suretyship liability of the surety. 2007.9.
152Yangpu Economic Development Zone in Hainan Province primary procuratorate v. Xie Jiewei, Liang Yanling smuggling drug - making (criminal); intermediate people's Court of second instance; Yangpu Economic Development Zone; a, judging whether some items of precursor chemicals shall, according to relevant state laws, administrative regulations. Relevant state laws, administrative laws and regulations not as precursor chemicals, even if the object can be used to manufacture drugs, also cannot be identified as precursor chemicals. Two, according to the provisions of article 350th of the criminal law, constitutes a crime of smuggling precursor chemicals crime must act with knowing is the precursor chemicals and smuggling crime. If people do not know the behavior of smuggling goods is the precursor chemicals, and the smuggling of objective system for legitimate production, even if the goods can be used for manufacturing, also can't cognize the smuggling of precursor chemicals is the intentional crime. 2007.9.
153Qingdao Zhongnan Property Management Co., Ltd. Nanjing branch v. Xu Xiantai, Lu Suxia property management contract dispute case (Civil); a trial; Jiangning District People's Court of Nanjing city Jiangsu province; one, the owners and the community Property Management Company signed property management services agreement, property management services contract to establish the relationship between the Property Management Company and. Property Management Company as providing property management services contract party, have the obligation to contract for property management, require owners to comply with the provisions of property management owners Convention and community, have the right to violate the provisions of convention by the owners and property management act to be correct, in order to maintain the normal order of residential property management, safeguard the common interests of all the owners of small. When the owner is not in accordance with the requirements for rectification rectification in violation of the provisions of the owners of the Convention and property management behavior, the Property Management Company as a party to the contract, have the right to bring a lawsuit according to law. Two, for the problems with the owners purchase housing adjacent to the gardens of the ownership, is not only based on the real estate developers sales personnel told the owners oral commitment "to buy a building to the garden", and the green courtyard for the owners, the use of actual facts, namely that the owners to enjoy the exclusive right to use of the courtyard space. The gardens as immovable property, the right to use the sale of housing ownership must be based on the two sides formally signed commercial housing sale and purchase agreement and property registration to be determined. Three, the owners shall not violate the provisions of the Convention on the owners and property management, based on personal interests to damage, reconstruction and housing adjacent to the courtyard space. Even if the owner has the exclusive right to use the green courtyard, if the green courtyard area belongs to the green part, the owners should also comply with the Convention owners in the use of the green courtyard, property management regulations on residential green, green courtyard without damage, damage the legitimate rights and interests of other owners. 2007.9.
154Zhang Yanjuan v. Jiangsu Wan Hua Industry & Trade Development Co., Ltd., Wan Hua, Wu Liangliang, Mao Jianwei (civil case dispute shareholders); a trial; Xuanwu District People's Court of Nanjing city Jiangsu province; one, limited liability company to convene the shareholders meetings and make meeting, shall be conducted in accordance with the relevant provisions of the law and the company's articles of. In accordance with the law without convening a shareholders' meetings and make meeting resolution, but by the actual holding company shareholder of fables Corporation shareholders' meeting and meeting, even if the shareholders actually enjoyed the company most of the shares and the corresponding right to vote, validity of his personal decision also cannot replace the resolutions of the shareholders' meeting. In this case, other shareholders for confirmation of shareholder meetings and resolutions imaginary invalid, the people's court shall support. Two, the revised Company Law "article twenty-second of shareholders or the general meeting of shareholders, board of directors meeting convening, voting in violation of laws, administrative regulations or the articles of association, or the resolution is in violation of the articles of association of the company, the shareholders may within sixty days from the date of the resolution is made, shall request the people's court to revoke", is rules for the meeting of the shareholders of a company and its actual held a conference to make resolutions, which in this case shareholders must be sixty days, request the people's court to revoke the resolution of the shareholders' meeting to date, overdue is not supported. As for the fictional shareholder meetings and resolutions, as long as the other shareholders to know or should know their own shareholders rights are infringed, proceedings in the litigation of law, people's court shall accept the case according to law, not limited by rules revised Company Law Article twenty-second to shareholders for the revocation of the resolution of the shareholders' meeting of sixty days deadline. 2007.9.
155China XinDa Asset Management Co Lanzhou office and Gansu Yasheng salt chemical industry (Group) the loan contract disputes limited liability company (Civil); trial; the Supreme People's court; both parties signed the contract, agreed to a party to the higher authorities for approval as the entry into force of the contract, the party that has and times please its superior departments in charge of examination and approval to the entry into force of the contract obligations. If the party fails to perform the obligations stipulated in the contract, the parties signed and sealed by the industry was established, the contents of the contract is not in violation of provisions, does not damage the interests of others and has been part of fulfilling the case law, the contract shall be deemed already in force. 2007.10.
156Fengfeng Group Co., Ltd. and China Energy Conservation Investment "corporation loan contract dispute (Civil); trial; the Supreme People's court; parties because of the possession and use of national basic construction management fund and the occurrence of loan contract dispute, does not belong to the Supreme People's court act April 2, 1996 complex [1996]4" for government to adjust the transfer of state-owned assets of the enterprises dispute whether or not to accept the the first reply "stipulated" because the government and its subordinate departments in the enterprise adjustment of state-owned assets, state-owned enterprises during the transfer related disputes between, should be handled by the government or state-owned assets management department, state-owned enterprises as a party to a lawsuit in the people's court, the people's court shall not accept the case ". If the loan contract dispute to the people's court in civil proceedings, the people's court shall accept the case. 2007.10.
157Yamaha engine Ltd and Zhejiang Hua Tian Industrial Co., Ltd., Taizhou Hua Tian Motorcycle Sales Co., Ltd. for trademark infringement (Civil); trial; the Supreme People's court; a, according to the "Supreme People's Court on the trial of trademark cases regarding jurisdiction and law application range of issues of interpretation" provisions of article eighth, decided to bring a suit before the implementation the trademark infringement behavior case modification to the trademark law, the people's court in the modification of the decision has not yet made an effective judgment, refer to the revised provisions of the Trademark Law Article fifty-sixth. Two, according to the "Regulations of the Supreme People's Court on the law applicable to a number of cases of civil disputes trademark interpretation" of article thirteenth, the people's court according to the Trademark Law of the first paragraph of article fifty-sixth shall be determined by the infringer liability, can according to the right people choose the way to count the calculation of the amount of compensation. Three, for trademark infringement one calculation of the illegal income, can refer to the "Regulations" the Supreme People's Court on the trial of patent disputes of applicable law article third twentieth rules, namely the infringer has acquired from the interests of the general tort of business profits, to complete the infringement on the industry of tort people, can be calculated according to the sales profits. 2007.10.
158The Peoples Insurance Company of China Zhejiang branch v. Shanghai LMS Logistics Limited cargo loss of subrogation dispute maritime case (Civil); the second; the Shanghai Municipal Higher People's court; a, according to the provisions of article fifty-first of the maritime law, the contract of carriage of goods by sea in the period of responsibility within the carrier for the fire accidents caused by the loss or damaged, do not bear the liability for compensation. Here the "carrier" means the person by whom or the conclusion of the contract of carriage of goods by sea in my name and the shipper who. Two, according to the provisions of article forty-sixth of the maritime law, the carrier for the container during shipment responsibility, refers to the delivery of goods at the port of discharge. Check up to receive the goods from the port of shipment, the goods in all the period during which the carrier is in charge of the. In this case a fire occurs in a carrier liability period, and there is not a fire caused by the actual fault of the carrier. Therefore, the carrier shall have the responsibility to. 2007.10.
159Yang Yimin v. Chengdu City Hall other administrative disputes (administrative); the second; Sichuan Provincial Higher People's court; administrative organs dismissed the appeal petition response, repeat the process behavior belongs to administrative organs according to the party refuses to accept the administrative behavior of any appeal, does not have the legal effect of new parties rights and obligations, the provisions are not administrative reconsideration law may apply for administrative reconsideration of administrative behavior. If a party refuses to accept the administrative organ to the petition response, apply for administrative reconsideration, the administrative reconsideration organ accepts an application to make a decision of rejection, if a party refuses to accept the decision, appeal to the court to revoke the decision of rejection, the people's court shall not support. 2007.10.
160Lei Yuancheng and the king of Xiamen Real Estate Development Company Limited, East Real Estate Development Company Limited property right ownership dispute (Civil); trial; the Supreme People's court; according to the provisions of the relevant laws, regulations and judicial interpretation, legal business license has been revoked shall be performed after the liquidation by the liquidation group, responsible for cleaning up the debt, debt. Corporate business license was revoked after failing to liquidation, the creditor may apply to the people's court to designate relevant persons to form a liquidation group. Corporate business license was revoked after no conduct liquidation according to law, the creditor does not apply to the people's court to designate relevant persons to form a liquidation group, but in the course of the proceedings by a legal person or legal person and admission creditors to reach a mediation agreement, prior to liquidation of the debt deal, to dispose of the assets of legal person, damage the interests of other creditors, not in line with the principle of fairness, the people's court shall not support this. 2007.11.
161Chongqing Zhengtong Pharmaceutical Co., Ltd., review committee, State Administration for Industry and Commerce Trade and Sichuan Huashu animal pharmaceutical limited company trademark administrative disputes (administrative); retrial; the Supreme People's court; trademark law stipulates that the fifteenth "agents", including not only accept the entrustment of the trademark registration applicant or the owner of a registered trademark, the trademark agents, representative delegated authority within the scope of trademark agents and other matters of people, also includes the total distribution, general agent (exclusive) (exclusive) agent, representative and other special sales agency relationship of human. 2007.11.
162Yang Shu Ling v. Ping An Property Insurance Limited by Share Ltd Tianjin Baodi branch company insurance contract dispute case Chinese (Civil); the second; Tianjin first intermediate people's court; a, "family members", "Kin", "family" are the legal concept, the insurance business insurance company shall have no right to the legal concept of voluntary interpretation. "Family" in the legal equivalent of the household registration, "family members" refers to the same household permanent living together, each member of the economic income as the family property person. "Family member" and "Kin", "relatives" is not the same concept, with lineal blood relationship are not necessarily mutually family members. Two, according to the provisions of article eighteenth of the insurance law, insurance contract provides for the exemption of liabilities for the insurer, the insurer shall specify in the contract, the terms of unspecified invalid. The so-called "clear", refers to the insurer before signing insurance contract with the insured or the signing of the insurance contract, the exemption clause in the insurance contract agreement, in addition to the tips of the insured policyholder pays attention, it should also be the relevant concepts, the exemption clauses and legal consequence in writing or oral form to the insured or their agents to explain, true meaning and legal consequences to the insured that the clause. 2007.11.
163Contract disputes Feng Yueshun v. life insurance company insurance scheme (Civil); a trial; Tianjin Heping District People's court; according to the provisions of section second of the insurance act ninety-second, accident insurance is insurance, not applicable in property insurance "loss compensation principle". The insured or the beneficiary to obtain compensation from the implementation of the damage caused by the behavior of the third office, can still claim to the insurer of insurance, the insurer shall not refuse to perform the insurance liability to the insured or the beneficiary has acquired tort compensation. 2007.11.
164Zhejiang Province Food Co. v. Shanghai Taikang Food Co. Ltd., Zhejiang Yongkang Road four ham factory trademark infringement dispute case (Civil); a trial; Shanghai second intermediate people's court; the registered trademark is formed because of historical reason, containing the names, although the trademark shall enjoy the exclusive right to use trademarks according to the trademark law, but if the name approved by the special administrative organs of the state to implement the protection of geographical origin of products, will be allowed to use the civil subject can use the geographical origin of special signs in the statutory scope. Trademark infringement of their trademark behavior to the legitimate use of the geographical origin of special signs on the grounds to the people's court, request damages for infringement, the people's court shall not support. 2007.11.
165Shaanxi Xiyue villa Co. Ltd. and in the building of three Construction Engineering Company Limited, the construction of Third Construction Engineering Co., Ltd three Bureau of construction contract dispute case (Civil); trial; the Supreme People's court; according to the "contract law of the people's Republic of China" in article seventy-ninth, the creditor may assign its rights under a contract in whole or in part of the transfer to the third person, but according to the nature of the contract shall not be transferable, agreed upon by the parties and in accordance with the law shall not be transferred except shall transfer. Legal, regulations do not prohibit the construction under the contract of assignment of the obligee's right, if the construction contract the parties have not agreed on the contract creditor's rights shall not be transferable, the creditor to the third assignment of creditor's right and notify the debtor, creditor's rights transfer legal and valid, the creditor will not be required to obtain consent of the debtor creditor's rights transfer matters. 2007.12.
166Zibo Wanjie hospital and China bank Limited by Share Ltd Boshan branch, Zibo Zibo Boyi Fiber Co. Ltd., the Refco Group Ltd loan guarantee contract disputes jurisdiction of bill (Civil); trial; the Supreme People's court; for the contract interpretation, must explore the contract party inner, true representation, and exploring the primary method for the parties to the contract real meaning said, is to determine the contract provisions of the literal meaning, namely, the method of literal interpretation. Only in the literal interpretation cannot determine the exact meaning of the contract provisions, to use other methods of interpretation. 2007.12.
167Beijing Jingdiao Co. v. Shanghai Electronic Technology Co., Ltd. copyright infringement dispute (Civil); the second; the Shanghai Municipal Higher People's court; according to the "Regulations on the protection of computer software" article twenty-fourth (three) the provisions of item, technical measures deliberately avoiding or breaking copyright owner to protect the copyright of the software and to take the behavior, is the acts of infringing the software copyright. The above provisions reflected on the malicious evasion techniques limit, the protection of computer software copyright. The copyright owner can take technical measures to protect the copyright of the software in accordance with the law, safeguard their legitimate rights and interests. A behavior intentionally to avoid or destroy the technical measures, the software copyright infringement, should bear the corresponding legal responsibility according to law. However, the legal provisions can not be abused. The main limitation is the protected software copyright circumvention malicious technology. The copyright owner for output data set file format, and the file format encrypted, limiting the other brand machines to read in order to save the file format of the data, so as to ensure their own computer software bundling machine market competitive behavior, does not belong to the provisions of the copyright owner to protect the software copyright right to take technical measures behavior. Copyright software development to others read it set a specific file format of the software copyright infringement, should bear the corresponding legal responsibility to others, the people's court shall not support. 2007.12.
168Hebei Shengda Yongqiang new building materials Co., Ltd. and CITIC Bank Limited by Share Ltd Tianjin Branch, Hebei Baoshuo Limited by Share Ltd bank to accept a draft agreement disputes (Civil): the Supreme People's Court of second instance:: "contract law of the people's Republic of China" thirty-second stipulates that: "the parties conclude a contract in written form, the contract the parties sign or seal when the." Therefore, effective seals of the parties sign the contract, on the book, is that the contents of the contract is the true meaning of the parties said, the parties hereby contract rights, to perform its obligations under the contract. At the same time, the parties in the contract signed, stamped on the book, also has to make the contract relative people are convinced that the counterparty, so as to determine the role of the parties to a contract. 2008.1.
169Chinese the Great Wall Asset Management Co Ji'nan Office of Shandong province and Ji'nan pharmaceutical procurement and supply station, Shandong Pharmaceutical Group Co. Ltd., Shandong province Medicines Co loan guarantee contract dispute (Civil): the Supreme People's Court of second instance:: according to the provisions of the Supreme People's court "approval" of the bankrupt enterprise of state-owned land use rights should be included in the bankruptcy property issues such as third the building, if attached to the allocated to acquire state-owned land use rights, the buildings and land are mortgaged, the land use right of mortgage shall be in compliance with legal procedures, otherwise, shall be deemed mortgage invalid. The parties in the mortgage contract signed, if only agreed to own property mortgage for housing and mortgage registration, not the property attached, transfers the way to obtain the land use right of state owned land shall be mortgaged together, these Provisions shall not apply to. 2008.1.
170Chinese Hengji Group Co. Ltd., Beijing Beida Jade Bird Co. Ltd and rising investment development limited company, Hongkong Qingdao science and technology development limited company loan guarantee contract dispute (Civil):: the Supreme People's Court of second instance: the Supreme People's court "on the application of people's Republic of China Arbitration Law" interpretation of several issues "the sixteenth stipulation:" to review the validity of arbitration agreement is agreed upon by the parties, if the parties have not stipulated law; applicable law but agreed to arbitration, arbitration law to apply; no agreement applicable laws have not agreed to arbitration or the arbitration agreement is unclear, the law courts." Accordingly, in foreign contract disputes, the parties agreed in the contract with an arbitration clause, can also make a clear agreement on the applicable law of the validity of the arbitration clause. Due to the independence of the arbitration clause stipulated in the contract, it is applied to solve the governing law of contract disputes, can not be used to determine the validity of the arbitration clause. If the parties have not agreed in the contract to determine the applicable law of arbitration clause, have not agreed to arbitration or the arbitration agreement is unclear, the application of the legal effect should review the arbitration agreement. 2008.1.
171Wu Linxiang, Chen Huanansu, Zhai Xiaoming patent dispute case (intellectual property):: Jiangsu Province Higher People's Court of second instance: one, "the people's Republic of China Company Law" 148th stipulates: "the directors, supervisors, and senior management personnel shall abide by the laws, administrative regulations and the articles of Association of the company, the company responsible for the duty of loyalty and duty of care. Directors, supervisors, senior management personnel may not exploit their position to accept bribes or other illegal income, and may not misappropriate company property." The law 153rd stipulation: "provisions of directors, senior management personnel violate laws, administrative regulations or the company's articles of association, damage the interests of the shareholders, the shareholders may bring a lawsuit to the people's court." According to the above provisions, company directors, senior managers or controlling shareholders and other personnel in violation of laws, administrative regulations or the articles of association rules, against the interests of the company, and the company is not under the control or delayed in its own name rights advocate, resulting in damage to the interests of other shareholders, other shareholders to safeguard their legitimate rights and interests and the interests of the company, have the right to bring a lawsuit to the people's court. Two, according to the "patent law of the people's Republic of China" in article sixth, execution of the tasks of the entity or mainly by using the material and technical conditions of the unit of the invention for the invention of the invention creation, the right to apply for a patent belongs to the entity. 2008.1.
172Yang Qingfeng v. Wuxi Municipal Bureau of labor and social security administrative dispute work-related injury (administrative):: Wuxi City Intermediate People's Court of second instance: according to the "Regulations" provisions of the second paragraph of the industrial injury insurance seventeenth, application for ascertainment of a work-related injury accidents occur from time shall be the date of. Here the "accident happened," shall include the accident damage results in the actual date. Industrial accident damage results has not actually occurred, inductrial injury worker actual harm results within one year after the application for ascertainment of a work-related injury, do not belong to the application for ascertainment of a work-related injury situation over time. 2008.1.
173Pan China Engineering Co. Ltd. Southwest Company and Chinese life insurance (Group) Company commercial housing sale contract dispute case (Civil): the Supreme People's Court of second instance:: according to the "Regulations of the people's Republic of China Company Law" in article thirteenth, the company may establish branch, branch does not have the qualification of legal person, and its civil liabilities shall be borne by the company. Therefore, with branch offices in corporate change process is practical by the industrial and commercial sector cancellation is completed, does not affect the company based on the qualification of independent legal person to exercise its branches enjoy civil rights, assume its branches for the civil obligation. 2008.2.
174The Tianjin Branch, Hebei Baoshuo Limited by Share Ltd loan guarantee contract disputes Fengshen tire Limited by Share Ltd and China CITIC Bank Limited by Share Ltd (Civil): the Supreme People's Court of second instance:: one, the "PRC security law" fourteenth stipulates: "the guarantor and the creditor may a singleprincipal contract guarantee contract, also can protocol must continuously during occurred in the maximum amount of the loan contract or a commodity transaction contract a contract of guarantee." The maximum amount of guarantee stipulated above, usually for the future occurrence of the creditor's rights guarantee period, the effectiveness of a transaction does not affect the maximum guarantee the validity of the contract, while the ordinary guarantee should be the main contract to be invalid. Therefore, the maximum guarantee than common guarantee the biggest difference, that is independent of the maximum guarantee and the main obligation is more. The maximum guarantee people's responsibility is to establish the time of the conclusion of the contract, the period of the maximum guarantee and the maximum limit guaranteed liability, as long as occurs during the period of the maximum guarantee period, does not exceed the maximum amount of debt outstanding, the maximum guarantee per capita should undertake suretyship liability. In the case of the maximum guarantee, even if the principal debt principal debt based on invalid, ineffective and determine the debt as the maximum guarantee debt balance calculation base. Two, according to "the Supreme People's Court on certain issues concerning the application of people's Republic of China Security Law > interpretation" in article twenty-third of the "no particular claim the maximum guarantee contract is determined, to ensure that the provisions should be on a certain period of time for the maximum amount of debt the right balance of suretyship liability", the most high assurance range difference during the maximum guarantee has creditor's rights and debt, not during the maximum guarantee has expired creditor balance. Three, according to the bills without due reference theory, basic relationship of instruments (including the reason relations) is independent of the negotiable instrument relations, basic relationship of instruments (including the reason relations) validity shall not affect the validity of bill relationship. 2008.2.
175Liu Zhibing v. Lu Chi Shing Property ownership dispute (Civil): the second instance: Zhejiang Province, Shaoxing City Intermediate People's Court: the bona fide acquisition refers to the person unauthorized to dispose of immovable property or movable property is transferred to the assignee, the assignee in good faith and to pay a reasonable price, in accordance with the law to obtain the immovable property or movable property ownership. Therefore, the bona fide acquisition should meet the following three conditions: first, the assignee accepted the movable property in good faith; the two, at a reasonable price; three, the movable property in accordance with the law shall have the registration registration registration is not required, has been delivered to the transferee. Motor vehicle while belonging to the estate, but there are some strict management measures so that the vehicle is different from the other without registration of chattel. Behavior person uncommitted transactions in the second-hand car motor market made others legal all motor vehicles, can not prove that pay reasonable price for good faith and, for its claims of bona fide acquisition of vehicle ownership request, the people's court shall not support. 2008.2.
176Tianjin Goubuli Group Co., Ltd. v. Ji'nan City Grand View Garden Shopping Day Feng Yuan Hotel for trademark infringement (intellectual property):: Shandong Province Higher People's Court of second instance: a service mark, also known as service mark, is the operator service industry in order to service the difference between their own services and others off and use a professional logo. According to the "implementation rules" fifty-fourth trademark, service mark used continuously to July 1, 1993, the same or similar and registered on the same or similar services on the service trademark, can continue to use; however, in 1993 July 1 days after the interruption of the use of 3 years or more, shall not continue to use the. The same or similar two, behavior of the registered trademarks of services and others words used as the name of the commodity, does not belong to the "trademark" Regulations for the implementation of the provisions of article fifty-fourth of the situation. If you use the perpetrator of the commodity composition of prior use, and does not belong to the breach of business ethics, out of battle for market and the use of a registered service mark the reputation of the subjective malice, intent to commit a tortious act, as long as the behavior of regulating the use of the name of the commodity, there is no infringement of the exclusive right of trademark registered service the problem. However, if people act the commodity name for publicity boards, wall advertising and signage, highlight the use of the commodity name or the name of commodity and their names separated independent use, easy to enable consumers to cause misidentification, constitute infringement of a registered trademark the exclusive right to use a service. 2008.2.
177Shanxi Jiahe Thai real estate development company limited and Taiyuan heavy machinery (Group) transfer contract disputes the right to the use of limited land (Civil): the Supreme People's Court of second instance:: ", according to the provisions of the Supreme People's Court about the right to use the contract dispute case applicable legal trial involving state-owned land interpretation" of article ninth, the transferor fails obtain land use right transfer certificate and the transferee shall conclude a contract transferring land use rights, transfer has been made before filing a lawsuit, transferring land use right certificate or approval by the people's government agreed to the transfer of the right, should be identified contract. Two, although the law, regulations and tax administration in our country for the various types of taxes imposed are clearly defined in the tax obligations, but does not prohibit the taxpayer and the contract relative person agreed to by the relative contract or third people to pay taxes, the actual who pay taxes did not make mandatory or prohibitory regulations. Therefore, the parties agreed in the contract, other than by the taxpayer who undertake the transfer of the right to the use of land taxes and fees, mandatory provisions do not violate the relevant laws, regulations, shall be deemed to be valid. Three, according to the "contract law of the people's Republic of China" in article 114th, the parties in the contract agreed liquidated damages amount, only when the parties request adjustment, and the contract agreed liquidated damages amount is lower or much higher than the default losses caused to a party concerned, the people's court to adjust. 2008.3.
178Chinese the Great Wall Asset Management Co Ji'nan office and Chinese CNHTC Ji'nan truck Limited by Share Ltd, Shandong duckling Refco Group Ltd mortgage loan contract dispute case (Civil): the Supreme People's Court of second instance:: mortgage is the material guarantee. The person in charge is not the principal debtor's case, the mortgagee can request the auction, sale of the mortgaged property of priority, but not to request the mortgagor direct debtor debt. 2008.3.
179Lufeng city Lufeng pawn line with Chen Weiping, Chen Shuming, Kangle Lufeng City Dairy Co., a liquidation group, third piece of their land debt contract dispute case (Civil): the Supreme People's Court of second instance:: pawn holds the people's Bank of China issued by the financial institution legal person license, its business scope includes pledge for loans to small businesses and non state owned, individual, financial institutions approved to set up the legal. Behavior person to obtain land legal procedures as collateral to borrow hock OK, do not violate the provisions of relevant laws. Even if the mortgage of land not to the relevant departments for mortgage registration, only do not have legal effect against the third party, does not influence between actor and pawn pawn agreement valid. 2008.4.
180Zhong Chongqing v. Shanghai Jinxuan Dadi Real Estate Development Company Limited contract dispute case (Civil): Shanghai City Intermediate People's Court of second instance:: appointment contract, generally refers to the agreement between the parties for a future certainty of the contract agreed. Make an appointment after the effective date of the contract, both parties shall perform their obligations stipulated in the. One of the parties not obligations that the contract negotiations, consultations fail, constitutes a breach of contract, it shall bear the liability for breach of contract. 2008.4.
181Qingdao city land resources and Housing Management Bureau of Laoshan Land Resources Bureau and Qingdao Qiankun Wood Industry Co., Ltd. the land use right transfer contract dispute case (Civil): the Supreme People's Court of second instance:: one, for both parties to state the truth, no damage to the state, the collective agreement and the third person's legitimate rights and interests, which has been notarized contract has been established, shall be determined. Two, according to the relevant provisions of the contract law, the contract established according to law, since its establishment in force. The provisions of the laws, administrative rules and regulations shall go through the formalities for approval, registration as, in accordance with the provisions of. The three part, the contract is invalid, but does not affect the validity of the other parts, the other parts of the contract shall be deemed valid. 2008.5.
182The Inner Mongolia Autonomous Region people's Procuratorate of Wuhai City v. white snow clouds, robbery (criminal):: the Inner Mongolia Autonomous Region Higher People's Court of second instance: according to the "PRC Criminal Law" provisions of article 263rd, robbery refers to the illegal possession for the purpose, by violence, coercion or other methods, forced to plunder of public or private property behavior. The violence crime, refers to the victim's body strikes or mandatory, such as killing, beating, binding or incarceration. Behavior of people for the purpose of illegal possession, to deceive the victim lure to lease housing, then the victim locked in the pre renovated room, causing the victim can't resist, thus robbing the victim's property to carry, violence to the victim's body belongs to compulsory confinement, forced to plunder of public or private property shall be in accordance with the provisions of the conviction, "PRC Criminal Law" article 263rd of punishment. 2008.5.
183Eastman Kodak Co. v. Suzhou Keda Hydraulic Elevator Co., Ltd. trademark infringement dispute (intellectual property): First: the Suzhou City Intermediate People's court, the people's Court: a trademark infringement dispute in the trial of cases, involving trademark is well-known trademark to identify, belonging to the judgment of case facts, not by the litigant request limit. Two, according to the "Supreme People's Court on the law applicable to a number of cases of civil disputes trademark interpretation" of Article 1 (two) the provisions of item, copying, imitation, translation is a well-known registered trademark of another person or the major part in the commodity is not the same or similar as trademark use, to mislead the public, resulting in the well-known the registered trademark interests may be damaged, which belongs to the trademark law article fifty-second (five) provision of other damages caused to others to exclusive use of a registered trademark, it shall bear corresponding civil liability according to law. 2008.5.
184Italy Ferrero company and Montresor (Zhangjiagang) Food Co. Ltd., Tianjin Economic and Technological Development Zone Zhengyuan Marketing Co., unfair competition disputes (Civil): retrial: the Supreme People's Court: "the people's Republic of China, the Anti Unfair Competition Law" refers to a well-known commodity, has a certain market visibility at China territory, are known by the relevant public goods. Is the international well-known commodities, China's protection of the special name, packaging, decoration, still should be in its China territory for the public aware of the relevant necessary. The identification of famous product, should consider the goods in time China sales, sales area, sales and sales target for any publicity, the duration, extent and geographical range, known as the goods protected conditions, comprehensive judgement. Does not rule out the proper consideration the commodity is in abroad already known. Two, holding or protect the containers of goods packaging decoration, and formed in the packaging of the goods or additional text, pattern, color and permutation and combination, in which different sources of goods, which belong to the "people's Republic of China Anti Unfair Competition Law" the protection of specific packaging, decoration. Three, as for the packaging of goods, packaging design, different operators can learn from each other, draw, specific packaging, decoration but not with identifying the source of goods for others is enough to cause confusion in the market, the misidentification of imitated, otherwise it would constitute unfair competition. 2008.6.
185Shaanxi province Weinan City People's Procuratorate v. Weinan city especially Lake Tower Park Limited liability company, Hui Qingxiang, Chen Chuang, Feng Zhenda Hui Qingxiang of illegal absorbing public deposits, the crime of misappropriation of funds (criminal):: Shaanxi Province Higher People's Court of second instance: without the approval of the people's Bank Chinese, not to absorb public deposits of the name, the absorption of funds to the community is not a specific object, but promised to fulfill the obligations of the same nature and absorb public deposits, namely commitment to the payment of interest within a certain period of time, disguised absorbing public deposits belong to the criminal law 176th stipulation "". As long as the behavior of illegally absorbing public savings behavior, whether to take what kind of illegal absorbing public deposits, the establishment of means, had no effect on the crime of illegal absorbing public deposits. 2008.6.
186Hebei Sanhe Fucheng cattle Group General Co. v. Harbin Fu Cheng Food Co. Ltd. Kunming branch infringe the exclusive right to use registered trademarks and unfair competition disputes (intellectual property):: Yunnan Province Higher People's Court of second instance: one, according to the Supreme People's court "on hearing the law applicable to a number of cases of civil disputes the interpretation of" the first brand part (a) of the Convention, and others to register the same or similar trademark words as the number of enterprises in the same or similar goods to highlight the use, easy to cause confusion among the relevant public belongs to the damage caused to others registered trademark act. According to the provisions of the State Trademark Bureau "several problems about protecting trademark" seventh views of the second paragraph of the service industry, others normal use conventional signs, as well as the normal way using the trade name (name), name, place names, places, said the service characteristics, the service matters that do not constitute infringement upon the exclusive right of trademark, but obviously unfair competition intention except. According to the above provisions, the enterprise registration and others will be the same or similar trademarks of text as a name in the identical or similar goods use should follow the principle of honesty and credit. Actors to cling to other well-known trademark, confuse the public for related goods for the purpose of simplifying their cognitive, arbitrary name used in the commodities, belonging to the infringement of the exclusive right to use a trademark registration act. Two, the anti unfair competition law fifth stipulates: "operators shall not adopt any of the following illegal means in market transactions, damage the competition: (a) counterfeiting a registered trademark of another person; (two) the name, the unauthorized use of a well-known commodity specific packaging, decoration, or name, using the approximate and famous product packaging, decoration, and others caused confusion with the well-known commodity, so that the buyer is mistaken as the well-known commodity;......" According to the above provisions, the name, the unauthorized use of other famous product specific packaging, decoration, or name, using the approximate and other famous commodity packaging, decoration, which confused with those of a well-known commodity, so that consumers mistakenly believe that is the famous commercial behavior is improper competition behavior. 2008.6.
187Shi Wenpei and Gansu Huangtai wine (Group) Co. Ltd., Beijing Huangtai trade limited liability company reciprocal contract dispute case (Civil): the Supreme People's Court of second instance:: between the parties, two contract while involving the same batch of goods, but because the two contract objective and content are not agreed upon the same, it should determine the value of the goods according to the contract, not agreed to a contract for the value of the goods to deny another contract agreed. Two, according to the provisions of the second paragraph 114th of the contract law, only when the agreed liquidated damages is excessively higher than the losses caused, the parties may request the people's court or an arbitration institution to make an appropriate reduction. Therefore, when the parties malicious default, if there is no evidence that the contract agreed liquidated damages is excessively higher than the losses caused, the request of the parties to reduce the damages for breach of contract, the people's court may not support. 2008.7.
188Tiantong securities limited liability company liquidation group and Prudential Bank Limited by Share Ltd, evergrowing bank Ji'nan branch of Limited by Share Ltd, the bank Limited by Share Ltd Yantai Qingnian Road branch of evergrowing Bank (Civil): the Supreme People's Court of second instance:: one, according to the "Securities Law of the people's Republic of China" and "the first paragraph of article 139th of clients' transaction settlement funds management approach" article twenty-first, the provisions of article twenty-second, a securities company for the clients' transaction settlement funds has management right, and should guarantee the customer transaction settlement funds complete responsibility. For any of the clients' transaction settlement funds of infringement, the securities company shall have the right and responsibility to claim relief. When a securities company is ordered to close down, for administrative liquidation, the liquidation group by the securities supervision and administration institution appointed by securities companies to ensure appropriate have the rights and obligations of the customer transaction settlement funds complete. Is to ensure that the securities and exchange each other in full settlement of two, customer trading settlement funds, the financial burden of other priority rights, must ensure the integrity of the funds. The clients' transaction settlement funds dedicated account when a securities company for the management of the bank debt, banks can not directly from the account deduction of clients' transaction settlement funds to implement the creditor's rights. 2008.7.
189Dispute over compensation for Zheng Kebao v. Xu Weiliang, Peoples Insurance Company of China Changxin branch personal injury in road traffic accidents (Civil): Huzhou City Intermediate People's Court of second instance:: A, according to motor vehicle insurance contract, the motor vehicle third party liability insurance in the "third party", refers to the addition of the insured, the insurer and the insured is outside people, victims of insurance vehicle insurance vehicle accident suffers from a personal injury or property damage under; the car personnel liability insurance "in the personnel on the car", refers to the personnel in the vehicle. When there was an accident. Accordingly, judging by the insurance vehicle accident victims belong to "third" or the "staff car", must be based on the people in the accident happened at this particular time is in the vehicle above as the basis, in the car is "the personnel on the car", under the car is "third", two, because the motor vehicle is a vehicle, it is impossible for anyone to permanently in a motor vehicle, the motor vehicle insurance contracts that are involved in the "third" and "the personnel on the car" are temporary identity under certain time-space conditions, namely "third" and "the personnel on the car" are not fixed forever, identity, the two can be due to changes in the specific conditions of time and space and change. Because the insurance car accident victims, if before the accident insurance vehicle car personnel, at the time of the accident have exposure to the insured vehicle, belonging to the "third". As for what reason leading to the staff at the time of the accident in the insured vehicle, do not affect its "third" identity. 2008.7.
190Construction contract dispute case of Xi'an city Lintong District Construction Engineering Company and the Shaanxi Hengsheng Real Estate Development Company Limited (Civil): the Supreme People's Court of second instance:: "on the legal issues concerning the application of the construction contract dispute cases the interpretation of" twenty-first close to "the party in respect of the same construction project shall be entered into the construction contract and after record contract substantive with inconsistent, should take the record contract as the provisions of the settlement project price according to", refers to the same construction signed two different versions of the contract, disputes shall be based on the filing of the contract as the settlement of project price according to, rather than refer to the text of the contract as a clearing Archive Project Payment receipt. 2008.8.
191Tianjin Municipality procuratorate first branch v. Jeky, Yuan Nanjing, Hu Haizhen Dong Hui, Yan Yufeng, Liu Yu, Liu Shaorong, Liu Chao kidnapping (criminal): Tianjin Municipal Higher People's Court of second instance shall:: according to the "PRC Criminal Law" in article twenty-fifth, common crime is an intentional crime committed by two or more persons jointly, the joint crime intention people must have a common crime. The so-called common intentional crime, refers to the common crime through contact, know yourself and others with common facts of crime, realize the harm caused by the behavior of social nature of joint crime and the behavior of the results, and wishes or allows such results occurred. If people do not understand their true intention of crime, property crime others do not know of, but deceived by others or in their own mistakes, in others the crime understanding the nature of the crime in the wrong circumstances, it can not be identified it as the man and others implementation of a common crime, and should be based on the crime of the actual situation in the behavior of people, convicted and punished according to the subjective and objective consistent with the principle of right. 2008.8.
192Le Cheng Zhen Shi Ma Cun, Yueqing City, Zhejiang Province, the village committee and the Zhejiang Yi Shun Real Estate Development Company Limited to develop real estate contract dispute case (Civil): the Supreme People's Court of second instance:: according to the "Regulations of the people's Republic of China Village Committee Organization Law" article eighteenth, article nineteenth, the villagers assembly shall be convened by the villagers committee, for the other matters involving the interests of villagers, the villagers committee must draw the villagers meeting to discuss the decision before it can apply for. The village committee in accordance with the law to convene villagers committee meeting to discuss the decision and others to enter into any agreement, shall be recognized as valid. 2008.9.
193The branch of Agricultural Bank of Harbin city China and Songhua River in Harbin dairy limited liability company, Limited by Share Ltd, Harbin hit group in Harbin long Union Alpha Cpa Ltd loan contract dispute case (Civil): the Supreme People's Court of second instance:: a man sent by the creditor, the debt overdue debt collection notice the signature or seal of the action, although not necessarily said debtors are willing to perform the debt, but can said that its recognition of the existence of the debt, which belongs to the parties' of civil debt relationship, the people's court may exist between the parties that debt. Two, after the reform of state-owned enterprises, the existing debts shall be borne by the enterprises. The creditor to the enterprises after the reform issue overdue debt collection notice, shall be regarded as the alteration of approval. Three, the right of appeal is a procedural right of the parties to the law, the parties may exercise, can also give up. According to the "Regulations of PRC Civil Procedure Law" in article 151st, the people's Court of second instance trial of a case on appeal, the appeal shall be examined according to the facts and the law problem. If the parties fail to file an appeal within the statutory period, while in the second to the first instance judgment objection, the people's Court of second instance shall not review. 2008.9.
194Case of dispute over loan contract China the Great Wall Asset Management Co Kunming office and the new seafood restaurant in Kunming person limited liability company, restaurant Kunming new Jin Shi limited liability company (Civil): the Supreme People's Court of second instance:: the people's court, the legal representative of the defendant several corporate enterprises are the same person, and in the enterprise in the legal person of legal rights and duties are basically the same, so the court summons served as legal documents to the defendant, only served to one enterprise legal persons, and the enterprise as a legal person to the defendant Fang Qi he enterprise legal person to or retention of service approach, does not affect the litigation rights of the parties, not illegal trial procedures. 2008.9.
195Dispute over compensation for Beijing Creek Primary School, Baiyun District of Guangzhou City, Guangdong Province, Huang Yusen v. three Maoming railway international travel agency and personal injury (Civil): Guangzhou City Intermediate People's Court of second instance:: "the people's Republic of China Law on the protection of minors" twenty-second stipulates: "the school, kindergarten for minors to participate in meetings, cultural entertainment, social practice activities, shall be conducive to the healthy growth of minors, prevent the occurrence of safety accidents." "The Supreme People's Court on the trial of personal injury compensation case applicable legal interpretation" seventh article: "without the relevant obligations within the scope of the adults suffered minor personal injury, or minors to his personal damage, it shall bear the liability for compensation according to his fault." According to the Ministry of education of "student injury treatment measures" the provisions of article ninth, because the school students to participate in teaching activities and extracurricular activities, without corresponding safety education to the students, not to take necessary safety measures in the predictable scope, causes the student injury accident, the school shall bear the corresponding liability according to law. Accordingly, the signing of the contract and other educational institutions such as schools, the extracurricular activities to others to undertake specific, and agreed during the event by others responsible for students' management, protection, does not lead to changes in activities outside of school property, legal obligation is not therefore to reduce or exempt the institutions of Education management, protect students. Educational institutions in the extracurricular activities in any legal obligations, resulting in the injury accidents of students, and to conclude a contract with others shirk responsibility, the people's court shall not support. 2008.9.
196Beijing Guoyu Le Grand Large Hotel Co. Ltd. v. Beijing municipal labor and Social Security Bureau of Chaoyang District industrial injuries cognizance administrative disputes (Civil): the second: the Beijing second intermediate people's Court: A, the Ministry of labor and social security "on the implementation of views "first fixed:" while the employment the employer in two or more than two employees, the employer shall pay work-related injury insurance premiums for employees. Worker happening inductrial injury worker is injured, by their work units shall bear the responsibility for work-related injury insurance." According to the regulations, laid-off, laid off staff to other units, the unit shall pay work-related injury insurance premiums for employees; employees work-related injuries occur in the unit of work, the unit shall bear the responsibility of industrial injury insurance according to law. Two, according to the "Regulations" industrial injury insurance article fourteenth (six) the provisions of item, workers on their way to work by motor vehicle accidents, shall be identified as work-related injuries. The "commute" should start from conducive to guaranteeing inductrial injury accident victims position, to make a comprehensive, correct understanding. "The way to work, the principle of" refers to the rational path workers in order to work and back and forth between residence and work units. According to the actual situation of daily life, workers commute route is not fixed, immutable and frozen, the only, but there are a variety of options, the employer no restrictions. As long as the workers to work and back and forth between residence and work units reasonable path, belong to "the way to work". As for the path is recently, do not affect the identification of "on the way to work", the employing units to the location of the accident is not in the work to determine the workers on the grounds that route, request for revocation of an administrative organ injury, the people's court shall not support. 2008.9.
197China XinDa Chengdu Sichuan Asset Management Co office and Tailai Decoration Engineering Co., Ltd., Sichuan Tailai Housing Development Co. Ltd., Sichuan Tailai entertainment limited liability company loan guarantee contract dispute (Civil): the Supreme People's Court of second instance:: there is relationship between equity cross, set up, investors are the same person by one natural person as the legal representative of each the company's Associate Company, if the legal representative of the company to control the plurality, ignore the company's independent personality, free disposal, confusion relationship property and debt of each company, the company staff, property can not distinguish between the plurality of company legal person, although on the surface are independent of each other, but in fact constitute a confusion of personality. Therefore, damage the lawful rights and interests of creditors, the plurality of company legal person shall bear joint and several liability. 2008.10.
198Shanghai International Trust and Investment Co. Ltd. and Shanghai city comprehensive information exchange, Shanghai three and the Real Estate Company commissioned loan contract disputes (Civil): the Supreme People's Court of second instance:: "the Supreme People's Court on certain issues concerning the application of people's Republic of China Security Law > explanation" the thirty-ninth stipulation: "the main parties to the contract agreement with the new repayment of old loans, except when he knows or should know, the guarantor shall not bear civil liability. New and old loans loan department of the same guarantor, does not apply to the provisions of the preceding paragraph." Accordingly, the loan contract both parties based on consensus to repay the old borrowing in new loans, has entered into a plurality of loan contract, the same shall know the guarantor in the case in which the plurality of loan contract agreed to guarantee the seal, shall bear guarantee liability according to law. The guarantor citing no form and the relationship between the plurality of loan contracts, denying the nature of the contract to the new loan to repay the old borrowing, and refuses to perform the obligation of warranty, the people's court shall not support. 2008.10.
199Wang Chunsheng v. Zhang Kaifeng, Jiangsu province Nanjing engineering higher occupation school, China Merchants Bank Nanjing branch of Limited by Share Ltd, Limited by Share Ltd Merchants Bank Credit Card Center infringement dispute (Civil): First: Jiangning District People's Court of Nanjing city in Jiangsu Province: A, according to the "general rules of the civil law" provisions of the people's Republic of China in ninety-ninth, the name refers to the right citizens' freedom of decision, and legally change his name, a civil rights and prohibit others to interfere, theft, counterfeiting his name. Without the consent of others, identity theft certificate, taking someone's name to get a credit card behavior, which belongs to the theft, counterfeiting name, tort infringes the right of name. Credit card overdraft consumption in this manner, causing the name of the bank have been included in the bad credit record, resulting in loss of reputation to others, belonging to the infringement of the right of name behavior harmful consequences, not belonging to the infringement of reputation right behavior. Two, the parties for violations of the right to name others, using his name for a credit card and overdraft consumption, leading to the bad credit records in the bank's credit system, have a significant adverse impact on parties engaged in commercial activities and other social, economic activity, to the actual cause mental suffering, to interfere with their inner peace, reduce the social the proposed evaluation, compensation for spiritual damages claim, the people's court shall support. 2008.10.
200Dalian Bohai Construction Engineering Corporation and Dalian century Housing Development Co. Ltd, Dalian Yu Real Estate Development Co. Ltd, Dalian Baoyu Group Limited company construction contract dispute case (Civil): the second: debt belongs to the relative right, relativity is the basis of creditor's rights, the creditor is the nature of human rights. Debt is a specific legal relations between parties, creditors and debtors are specific. The creditor can only to a specific request for payment of debt, the debtor only to specific creditors bear the payment obligation. Even if the parties to a contract of third people outside the actions lead creditor's rights can not be achieved, the creditors could not according to the effect of creditor's rights to third requests to remove the hindrance, nor in the situation of no legal basis for breaking the relativity principle of contract third of the debt shall bear joint and several liability. 2008.11.
201Industrial Commercial Bank of China Ltd of Sanmenxia station branch and Sanmenxia Tianyuan aluminum Limited by Share Ltd, Sanmenxia Tianyuan Aluminum Group Limited loan guarantee contract dispute (Civil): the Supreme People's Court of second instance:: one, according to the "Regulations of the people's Republic of China Contract Law" in article eighty-fourth, the obligation of the contract in whole or in part to third person, it shall with the consent of the creditor. Therefore, the issue letter of commitment to the creditors, said the debt in whole or in part to third person, and the creditors would not accept, nor in the signing of the debtor and the third person of debt transfer agreements with official seal, shall be deemed as creditors agree to debt transfer, between the debtor and the third person's debt transfer agreements the creditors shall have no legal effect. Two, also the old new borrowed, the maturing loans on time can not recover the circumstances, as a financial institution creditors and debtors to enter into agreements, extend new loans to the debtor for the return of the old loan behavior. The behavior and the debtor to use its own funds to repay the loan, the difference to destroy the original debtor creditor relationship with the nature of behavior. Although the new loan instead of the old loan debts, but the original is not eliminated, the objective is to form new loans extended the old loan repayment period. 2008.11.
202Henan province Zhengzhou city Jinshui District People's Procuratorate v. Yang Zhicheng theft (criminal): the second instance: Henan Province, Zhengzhou City Intermediate People's Court: according to the provisions of the criminal law article 271st of the crime of duty encroachment, the so-called "using the convenience of duty" refers to the behavior of people in the implementation of crime, by their own authority, competent, convenient conditions management, handling the property units or use their own for performing the duties of and access to. Here the "competent", refers to the behavior of people have prepared, in a certain range the disposal of this unit property rights; the so-called "management", refers to the act of taking care, treatment, the use of functions on the unit property directly, which has certain powers of the unit property. The so-called "handled", refers to the behavior of people although will not have the supervisor or the management of the unit property responsibilities, but the need for work at a given time, the actual control of the unit property space. Therefore, the crime of duty encroachment. Requires the behavior of people in the illegal possession of the property, with its own duties within the scope of authority, responsibility as the foundation, with its duty of director, management or handled on the property, the implementation of illegally in the actual control, control, disposal of the property units at. If the perpetrator is only easy to contact others, management, in charge of handling the unit property in their own work, or familiar with the crime situation, and using the above work itinerary hungry convenience secret steal the property, does not belong to "using the convenience of duty", should be in accordance with the provisions of article 264th of the criminal law, in order to theft punishment. 2008.11.
203Li Zhongping v. Nanjing Arts Institute, Jiangsu Zhen Ze law firm reputation right infringement dispute case (Civil): Nanjing City Intermediate People's Court of second instance:: law firm or lawyers entrusted release lawyer statement, statement of client requirements shall be published is true, legitimate necessary to review, verify. Law firms or lawyers not necessary review of obligations, which is in accordance with the requirements of clients issued by lawyers, if the lawyer statement against the facts, infringing the right of reputation of others, law firm or lawyers shall bear the joint liability for tort. 2008.11.
204The National Development Bank and the Shenyang high voltage switchgear Co. Ltd., new Northeast Electric (Shenyang) high voltage switch Co., Ltd., the new Northeast Electric (Shenyang) Co., Ltd., Shenyang North Fu Machinery Manufacturing Co., a loan contract dispute case, the right to revoke the high-voltage isolating switch (Civil): the supreme people's Court of second instance:: according to the "contract law" "the people's Republic of China in seventy-fourth, the debtor obviously unreasonable low price to the transfer of property, damage to the obligee, and the transferee is aware of the situation, the obligee may petition the people's court to cancel the debtor to transfer property behavior. 2008.12.
205Netherlands Antilles Eastern Shipping Co. Ltd and China Chengxi shipyard ship repair contract dispute case (Civil): retrial: the Supreme People's Court: the ship while in the garage for repair, but not the whole ship belongs to the repair shop repair, the crew always keep all the series on the state. The fire occurred in this case, the ship that repair factory fire damage to bear the liability for breach of contract, should be on the point of fire within the scope of the contract, in the ship repair repair factory existence does not fulfill the contract or the existence of a causal relationship between not by default behavior, the fire damage to fulfill contractual existence and repair factory default behavior and fire losses shall bear the burden of proof. The ship can not on the above issues and evidence, the people's court shall not support on the litigation request. 2008.12.
206Ruihua Invest-holding Company and Shandong Luxiang Copper Group Co., Ltd., Shandong province Jiaxiang Jing Wei Copper Co. Ltd., Chen Zhongrong, Gao Xuemin secured loan contract dispute case (Civil): the Supreme People's Court of second instance:: proceedings the plaintiff accordingly the basic legal relationship involving multiple copies of the loan contract, the borrower as though the same subject, however, to provide guarantee system for more people per capita loan contracts, the object, the guarantor provides guarantee amount, is not the same. According to the "Regulations of PRC Civil Procedure Law" in article fifty-third, with such action requires the parties consent and approval by the people's court, the people's Court of the case or not the merger trial. 2008.12.
207Chen Weisu Guangdong Airport Management Corp, Guangzhou Baiyun International Airport, hurt the stock exchange Limited by Share Ltd infringement dispute (Civil):: Shanghai Higher People's Court of second instance: genus of securities derivatives warrants, warrants Information Disclosure Notice and securities law issued warrants information relates to listing Corporation financial condition, ownership structure and corporate management personnel change company internal major matters of information disclosure, by the issuer and investors assume the obligation of information disclosure, and not by the underlying securities listing Corporation bear. The perpetrator should carry a high risk based on the full understanding of the warrant trading rules and all the warrants transaction risk. Where the issuer to warrant information disclosure obligations, securities trading institutions as the premise of the regulatory obligations, behavior person once according to decide to warrant transactions, in the enjoyment of the warrant trading may bring benefits at the same time, should also bear the risk of possible. Because of carelessness found no important information, or no rules to fully understand the warrants, produces a loss in transactions, the consequences shall be borne by the. 2008.12.
208Xi'an Automation Instrumentation Co. v. hurt Huibo Automation Instrument Co Ltd request confirming non infringing patents and Shanghai Huibo Automation Instrumentation Co., Ltd. counterclaim Xi'an Automation Instrument Co. Ltd. patent infringement dispute case (Civil): Shanghai City People's Court of second instance: high grade: A, according to the "patent law" of the people's Republic of China fifty-sixth the provisions of paragraph 1, the scope of protection of the patent right for invention of the content of the claim, the description and the appended drawings may be used to interpret the claim. When the patentee and understanding the alleged infringer technology characteristics recorded to patent rights when there are differences, can be characterized by related content recorded patent specification interpretation claims recorded in meaning, and should be based on common technical personnel related to the patent specification understanding to explain the scope of protection of patent, so clear right. Two, judgment infringing product or method is a violation of the patent right for invention, the infringing product or method with the technical features of the invention patent right requirements shall be technical characteristics are compared. If the accused infringing product or method includes the technique characteristics of the same technical feature and patent rights, or the accused infringing product or method of a corresponding technical features or some technical features of the patent claims is with different but equivalent, is accused of infringing product or method of patent infringement, or does not constitute patent infringement. 2008.12.
209Agricultural Bank of Chinese Changsha City Pioneer branch and Hunan Jinfan Cci Capital Ltd, Changsha Jinxia Development Company Limited loan guarantee contract dispute (Civil): the Supreme People's Court of second instance:: lead to contract parties respectively held within the same from the complicated reasons, not as simply as a contract a party of deliberate fraud the case. One party of the contract if the other party malicious fraud claims, should also provide other evidence to prove. 2009.1.
210Infringement dispute transfer Guangdong the Yellow River Industrial Group Co. Ltd. and Beijing natural medicine science and technology development center general equity case (Civil): the Supreme People's Court of second instance: natural persons as the legal representative of the people, in the name of the legal person, through the use of fraud means to enter into a civil contract with others, to obtain the property is the legal possession, the legal consequences, is the natural person suspected contract fraud crime, and between the corporation and others for the cancellation of the contract and the formation of debtor creditor relationship. The people's court shall, in accordance with the provisions of the Supreme People's court "" on several issues involving suspected economic crimes in the trial of cases of economic disputes in the provisions of article tenth, the natural person suspected of a crime part transferred to public security organs, while continuing to hear civil disputes part. 2009.1.
211Zhejiang province Ningbo City People's Procuratorate v. Ning Polly Cci Capital Ltd, Chen Zongwei, Wang Wenze, Zheng Chun, the case of illegal business operation (criminal): First: Zhejiang Province, Ningbo City Intermediate People's Court: human behavior illegal operation of securities business and the establishment of the company, beyond the administrative department for industry and Commerce approved the registration of the business scope of the company, without statutory authority, not specific to the social public sales of non listed Limited by Share Ltd shares (stock), its behavior belongs to unauthorized illegal operation of securities business, disrupting the national securities market illegal business behavior, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operation. 2009.1.
212Jiangsu province Taizhou City People's Procuratorate v. Wang Guiping in a dangerous means to endanger public security, selling fake and inferior products, false registered capital case (criminal): First: Jiangsu Province, Taizhou City Intermediate People's Court: actor will endanger the health consequences, but based on the purpose of illegal profit, let these results occurred, medicinal accessories to the drugs production enterprise sales of counterfeit drugs for the production of drugs, resulting in serious consequences of serious injuries, death of the drug into the market, their acts constitute the crime of endangering public safety. 2009.1.
213Case of dispute over loan contract China the Great Wall Asset Management Co Urumqi office and Xinjiang Huadian trade limited liability company, Xinjiang Huadian Hongyanchi Power Generation Co. Ltd., Xinjiang Huadian weihuliang power generation limited liability company (Er Shen): Civil: the Supreme People's Court: A, registered capital of the company is the most basic assets, determine and maintain a certain amount of capital for the company, establish the basic debt paying ability, to protect the interests of creditors and the transaction security is of important value. The basic requirements of company capital shareholders determine, maintenance principle, contribution is the most basic, the most important shareholders obligations, the shareholder shall make full payment specified in the articles of association of the capital contribution subscribed capital contribution in currency, in the currency, shall be paid into a bank account opened by the company in the capital contributions in non monetary properties; the procedures for the transfer of property rights, should do according to the law. Two, according to the "property law" provisions of the people's Republic of China twenty-third, transfer of ownership of real estate to the actual delivery date. Shareholders in real estate investment in kind, should be as capital property to the actual delivery to the company. Not the actual delivery, shall be deemed as shareholders do not perform the obligation of capital contribution, the contribution is not the actual place. 2009.2.
214Dongfeng Automobile Trade Company, Inner Mongolia automobile factory and Inner Mongolia Huancheng Automobile Technology Co. Ltd., Inner Mongolia supplies Refco Group Ltd, Helianjiaxin, Liang Qiuling and the three Inner Mongolia Dongfeng Automobile sales and technical service company tort case (Trial): the Supreme People's Court: A, according to the regulations on certain issues concerning the application of the highest the people's court "(a)" the provisions of second, because the implementation of the company law on civil act or event of disputes brought to the court, if the laws, regulations and judicial interpretations is not clearly defined, the relevant provisions of the company law for reference; two, according to the "state asset appraisal regulations" third one, state-owned assets of asset transfer is not in accordance with the above provisions asset assessment, transfer contract is invalid; the transferee knows or should know the transfer of assets of state-owned assets, and not according to the law of the planning and assessment of the situation, still is obviously improper price assigns the state-owned assets, not a bona fide assignee. Three, the people's court after review, confirmed the basic facts in the original judgment is clear, the evidence is reliable and sufficient, the applicable law is correct, the petitioner retrial reasons not established, it shall reject the application for retrial. 2009.2.
215Jiangsu province Wuxi City Binhu District People's Procuratorate v. Ma Zhisong, destroying the computer information system project (first): Criminal: Jiangsu province Wuxi City Binhu District People's Court: according to the "PRC Criminal Law" provisions of article 286th, in violation of state regulations, the computer information system function to delete, modify, add, interference or the computer information system in storage, processing or transmission of data and applications to delete, modify, increase operation or intentionally making, dissemination of computer viruses and other destructive procedures, resulting in the computer information system can not operate normally, if the consequences are serious, formed destroy blame of computer information system. Acts in violation of state regulations, the strike means interference hijacking Internet operators of public domain name server, add instruction in the domain name server, in a lot of personal computer information system in the implantation of Trojan virus, resulting in the computer information system can not operate normally, if the consequences are serious, shall be convicted and punished the crime of destroying computer information system. 2009.2.
216Wang Yongsheng v. Chinese bank Limited by Share Ltd Nanjing Hexi Branch savings contract dispute case (first): Gulou District People's Court of Nanjing city in Jiangsu Province: criminals use omission commercial banks to maintain its ATM machine management, on the card, installed by the self-service bank door opening card reader, to install the camera device in the way of the ATM card, upper, steal information and password depositors debit card, copy fake debit card, debit card, the depositors withdraw money accounts within the consumer, should be recognized by commercial bank depositors funds shortage is due to debit card crime behavior, it should not bear civil liability on the grounds of defense, not to support the defense claims that the people's court. 2009.2.
217Guangdong sing this video Co. Ltd. and China Wenlian press, Tianjin Tianbao Culture Development Co. Ltd., Tianjin Tianbao CD Co. Ltd., Hebei Province, Hebei Bangzi theater, audio-visual audio-visual products wholesale Hebei people limited copyright dispute case (Civil): the second: A, drama performance, organization, preparation and rehearsals activities presided over by a theater performance units, performance inputs required from performance units, performance is the embodiment of the performance of the unit will, so the whole drama, performance units are copyright law meaning. In the absence of special agreements, the actor person does not enjoy the rights of performers. Two, according to the "law" provisions of the people's Republic of China Copyright forty-first, video maker's right is limited to prohibit unauthorized copy, distribute the video products, for the non manufacturing, it has no right to forbid others from production and distribution. But if the video maker in addition to its production, video products issued has exclusive distribution rights, also involved in the video products enjoy exclusive publishing content, distribution rights, while others without permission related content creation, publishing, video products, also constitute infringement. Three, according to the "Regulations" article twenty-third of the administration of audio and video products, audio and video product reproducing entities receiving by reproduction of audio and video products, should be in accordance with the relevant provisions of the state, the authorization validation of duplication of authorization and the copyright owner. If the replication unit not serious, fully fulfill the verifying obligation shall copy, audio and video products to the replication of the violations of the legitimate rights of others, the replication entity shall and tort of audio and video products maker, publisher assume collective tort liability. 2009.3.
218Ritz Co. v. Shanghai Ritz Huangpu Leisure Limited infringement dispute (Civil): First: the Shanghai second intermediate people's Court: "according to the provisions of the Trademark Law of the people's Republic of China" in article fifty-second, without the authorization from the trademark registrant, identical or similar to the registered trademark of the trademark on the same goods or similar goods with the use of a registered trademark, special right infringement. According to the provisions of the law fourth, regulations on commodity trademarks in this law, apply to service marks. Determine the registered trademark infringing mark and the claim is approximate, should consider the registered trade mark significant, the market popularity on the basis of comparison between the text, sound, shape, righteousness, composition and color of picture elements, or text and graphics as well as the combination of factors, on the whole, elements the main part plays mainly to identify the role of the judgment, thus both are easy to cause the relevant public confusion results. Similar services, refers to the service objective, content, mode, object, the same, or the general public believe the existence of a special relationship, easily confused with service. Accordingly, the behavior person without the trademark registrant licenses, the approximate identification for trademark registration services provided similar services, easy to cause the relevant public misunderstanding, confusion or think that they have certain connections, which constitutes the infringement of the exclusive right to use a registered trademark. 2009.3.
219Shi Honglin v. Taizhou Huaren Electronic Information Co., Ltd. copyright infringement dispute (Civil): First: Jiangsu Province, Taizhou City Intermediate People's Court: in computer software infringement dispute, one of the main methods to determine whether there is infringement is a software copyright infringement, between both software source code is the same or substantially the same. The Supreme People's court "several regulations about the civil action evidence" the seventy-fifth stipulation: "there is evidence that a party has the evidence refuses to provide evidence, if the other party claims that the evidence is against the holder, can be presumed that the proposition." The software source code in general by the developer holding, the accused infringer refuses to provide software source code for direct comparison without justifiable reasons, due to technical limitations from the infringing products cannot be directly subject to the foregoing, that the software is formed between the substantially the same, is controlled by the infringer to bear civil liability. 2009.3.
220Chongqing Suote salt Limited by Share Ltd and Chongqing Based Real Estate Development Company Limited, the transfer of land use right contract dispute case (Civil): the Supreme People's Court of second instance:: one, according to "people's Republic of China Property Law" 191st article, "PRC security law" the provisions of article forty-ninth, collateral collateral collateral assignment, he shall notify the mortgagee and the consent of the mortgagee, otherwise the transfer act invalid. But the "property law" 191st article Chinese people's Republic of China and the Supreme People's court "on certain issues concerning the application of people's Republic of China Security Law > explanation" article sixty-seventh also at the same time, without notice or without the consent of the mortgagee, the transfer of the mortgaged property, such as the transferee to terminate the mortgage right to pay off the debt, the effective transfer. The transferee through the exercise of MOR eliminate transfer the subject matter on the mortgage burden, transfer behavior. The provisions of the law, judicial interpretation, aims to achieve a balance of interests between the mortgagee, mortgagor and the assignee, can fully guarantee mortgage rights are not violated, and don't hinder the free circulation, give full play to the benefits. Two, according to the "property law" provisions of the people's Republic of China fifteenth, entered into between the parties relating to the establishment, alteration, transfer and elimination of immovable property in the contract, except as otherwise stipulated by law or the contract provides otherwise, in force since the establishment of the contract; not for Wu Quandeng, does not affect the validity of the contract. The provisions of the real property right change the principle of distinction between the cause and result. Behavior transfer of real property rights can not be achieved, not necessarily lead to real right transfer contract is invalid. 2009.4.
221Dispute over compensation for Li Jianqing, Song Baoning v. Qinghai Huangchuan school personal injury (Civil): First: Qinghai province Xining City West District People's Court: A, according to the Ministry of education of "student injury accident treatment measures" the provisions of article ninth, because the school teacher or other staff to corporal punishment or corporal punishment of students, or violates the work in the process of performing their duties, operating rules, occupation ethics or other relevant provisions, resulting in the injury accidents of students, the school shall bear the corresponding liability according to law. Two, according to the "Regulations of moral education work rules" in article twenty-seventh, primary and secondary schools to be serious discipline, for serious violation of school discipline students should according to the mistake degree give criticism and education or disciplinary punishment, and will inform the parents of students. Primary and middle school students is a minor, the psychological development is not mature, to the outside stimulation capacity is limited, individual differences between students is relatively large. Schools as educational institutions, in the punishment of students should fully consider students' psychological ability, good education, counseling in action at the same time. Fundamentally speaking, the students' action is the means of education, rather than simple penalty. We should fully consider the punished students psychological quality of basic education, counseling, based on actual situation, sanctions can really give play to the role of education, in order to avoid the possibility of tragedy. If the school in the disposal process, just for the sake of timeliness in pursuit of punishment, not fully consider students' psychological ability, and not in accordance with the provisions of timely communication with parents, so that parents no opportunity for students to carry out targeted guidance and education, the school is to make students injury accident has fault, accident violations and students should be identified school has certain causal relationship, the school should bear the responsibility for compensation and fault corresponding law. 2009.4.
222Jiangsu Baite import and export trade limited company, Huaian City, Jiangsu Province Kang Beit carpet Co. v. favor because of the application of provisional measures damage compensation dispute case (Civil): First: Jiangsu Province, Nanjing City Intermediate People's Court: the "PRC Civil Procedure Law" the ninety-sixth stipulation: "the application is wrongfully made, the applicant is the applicant shall compensate for the losses incurred from the property preservation." The Supreme People's court "certain provisions" on the pre litigation to cease the patent infringement of applicable law thirteenth stipulation: "the applicant not to prosecute or for any loss to the error caused by the people's court, the applicant may have jurisdiction to prosecute the applicant compensation, also can be in the patentee or any interested party filed a patent right infringement claim compensation for damage, the people's court may be dealt with." Accordingly, patent person's final is declared invalid, the patentee proposed property preservation and stop the infringement of patent application to be filed for losses, belong to the legal, judicial interpretation of the provisions of "application errors", the applicant hereby request the applicant to compensation, the people's court shall support. 2009.4.
223Peng Lijing and Liang Xiping dispute of tort of transfer of shares, Wang Baoshan, Hebei, real estate development company limited case (Civil): the Supreme People's court for retrial. Abstract: A, the couple jointly funded the establishment of the company, should take all their properties as registered capital, and bear their respective responsibilities. So the couple registered company shall submit proof of property division. Without the division of property, should be identified as community property funded company, in the marital duration, the husband or wife under the name of the company belongs to both husband and wife common property, as is common to all people, both husband and wife enjoy equal possession, use, disposal and the proceeds of the rights to the property. Two, according to the interpretation of the Supreme People's court "on certain issues concerning the application of people's Republic of China Marriage Law > (a)" provisions in the second paragraph seventeenth, the husband or wife is not needed in the daily life as the main decision on the joint property of husband and wife, husband and wife should be of equal consultation, agree, people have reason to believe that the treatment. Or wife side of both husband and wife common meaning, the other party shall not take different views or don't know as against a bona fide third party. So the husband or wife one party transfers the common shares of the company act, which belongs to the couples property was originally the main processing, should the couple agreed in consultation and transfer of shares, shareholders and the company's articles of association signed a resolution on the amendment. Three, whether the couple is the common shares of the company, the validity of the husband or wife a party with others, an equity transfer agreement shall, according to the facts of the case, combined with the transfer of the other party to share knowledge, the assignee is analyzed for goodwill and other factors. If it can be identified, the other party knows the equity transfer, and the transferee is based on good faith, then the equity transfer agreement to the other party binding. 2009.5.
224Tianjin Municipality procuratorate first branch v. Liu vigorously, Cao Zhenqing, Zhao Dianyong, excavating and robbing sites of ancient culture, cultural relics, the transfer of stolen goods. Abstract: the person who knowingly relics judge others robbing income, the actor who knows others robbing the cultural relics, to obtain illegal benefits from and to help others actively contact the buyer, promote cultural exchange is illegal, the act does not constitute a crime shall be based on the cultural relics stolen goods, the crime punishment. 2009.5.
225Zhejiang and letter of Electric Power Development Co. Ltd., Jinhua Daxing Materials Co. Ltd and pass and Real Estate Investment Co., Ltd. Guangsha holding Venture Investment Company Limited, Shanghai inknet Co. Ltd., third people pass and Klc Holdings Ltd to damage the interests of the company disputes. Supreme People's court. Abstract: the trial Limited shareholders in accordance with the "Regulations of the people's Republic of China Company Law" in article 152nd, to the company's directors, supervisors, managers or other about the shareholder's representative action, the people's court presided over, the parties reach an agreement of mediation, the mediation should not only after the parties agreed, other shareholders also must be approved by the mention of shareholder litigation on behalf of shareholders of the company and the company did not participate in the proceedings to the people's court, to the final confirmation of the legal effect of the mediation agreement. (2009, 6)
226Shanghai Jingan District people's Procuratorate v. Huang Chunhai help criminal escape punishment, the sale of counterfeit trademark goods case. Abstract: a trial, according to all the NPC Standing Committee "on the" PRC Criminal Law "the ninth chapter subject of crime of malfeasance the interpretation of applicable law" provisions, personnel engaged in official business exercising national administrative duties in accordance with the provisions of laws, rules and regulations on the organization, or engage in business in the state organs entrusted security state organs exercise their duties the people in the organization, or are not included in the national staffing agencies engaged in public affairs in state organs and personnel, on behalf of the state organs form of authority, negligence, which constitutes a crime, shall be investigated for criminal according to the criminal law of China. Tobacco Monopoly Bureau Department to accept administrative organ, the relevant state organs, representative shall exercise the tobacco monopoly market inspection and investigate and deal with violations of the tobacco monopoly behavior of administrative law enforcement organization. Therefore, the Tobacco Monopoly Bureau staff to exercise on behalf of the state authority, negligence, which constitutes a crime, shall be investigated for criminal responsibility in accordance with the provisions of the criminal law on the crime of malfeasance. Two, according to the article 417th of the criminal law, help criminal escape punishment most refers to the staff of state organs suppressed crime responsibility, provide convenience to send news secretly, crime analysis, help criminal escape punishment behavior. The provisions of the "regulations prohibit criminal responsibility", is not only the responsibility of judicial organs in accordance with the law of criminal investigation, inspection, trial, execution of punishment and other responsibilities, including the law prohibit criminal activities related to administrative duties. Tobacco Monopoly Bureau entrusted to the relevant state organs, administrative organs to exercise on behalf of relevant state tobacco monopoly market inspection and investigate and deal with violations of the tobacco monopoly behavior in administrative law enforcement. According to the provisions of the State Tobacco Monopoly Bureau "Regulations" punishment procedures of tobacco monopoly administration twenty-ninth, found illegal acts in violation of the provisions of the tobacco monopoly to constitute a crime, the relevant personnel shall transfer the case to the judicial organ. Accordingly, Tobacco Monopoly Bureau, and its staff has banned the illegal and criminal activities in violation of the duty of tobacco monopoly. Inspection team Tobacco Monopoly Bureau staff in the performance of their duties the amount in the process, the send news secretly technique, repeatedly raided the cigarette sales arrangement give criminals selling fake cigarettes, the criminals escape criminal punishment, constitute the crime of helping criminals escape punishment. 2009.6.
227Beijing zhiyangweibo science and Technology Development Co., Ltd. and chuangsi Biotechnology Engineering (Dongguan) Co., Ltd., Henan province Kaifeng city administration contract disputes case (Guan Xia). Supreme People's court. Abstract: a civil trial, the prosecution Liemingduo defendants, because one of the defendants domicile in the cases handled by the people's court jurisdiction, Gu is accepted by the people's court at the domicile of the defendant is determined according to the jurisdiction, the other defendants if the cases handled by the people's court has no jurisdiction over shall in the first instance, the respondent period put forward the objection to jurisdiction, objection is not within this period, because the case has entered the substantive phase of the trial, the jurisdiction has been determined, even if the acceptance of the case within the jurisdiction of the people's court is not the case of the proper defendant, the people's court ruled that the court can also rejected the plaintiff to the defendant does not affect the prosecution, trial, no need to transfer of jurisdiction. Two, the performance of the contract is fulfilled the main obligations of the contract. The main obligation of contract performance should be identified as the intermediary behavior. 2009.7.
228Wong like v. Shanghai East EV fuel injection Co. Ltd., Shanghai diesel engine Limited by Share Ltd service invention design compensation dispute case. Abstract: according to the "trial" patent law of the people's Republic of China sixteenth and "patent law of the people's Republic of China" implementation of the provisions of article seventy-sixth of the rules, the state-owned enterprise or institution which has been granted a patent right to license others to implement the patent right, should from licensing fees for the use of the patent charge tax after the extraction of not less than 10% as the payment of remuneration to the inventor or creator. According to the "patent law" provisions of the second paragraph of the people's Republic of China in forty-seventh, the decision declaring the patent right invalid, the invalidation of the patent right before the people's court has made and executed a patent infringement judgment, ruling, has to perform or patent infringement dispute to enforce the decision has been performed, and the implementation of the patent license contract and patent transfer contract, no retroactive. But because of the patentee maliciously damages caused to other persons, the compensation shall be given. According to the above provisions, the patentee shall pay the inventor, designer position in the prosecution request to license others to invent a compensation case, even if the patent because of loss of novelty is declared invalid, the patentee to the patent has been declared invalid on the grounds, refused to pay the patent right has been declared invalid patent has happened before licensing behavior should pay the duty invention designed to reward, the people's court should not support. 2009.7.
229Siwei Industrial (Shenzhen) Co. Ltd., Limited by Share Ltd and the Denison company 4D Eli, Eli (Guangzhou) Co., Ltd., (Kunshan) Co., Ltd., Eli, Eli (China) Co., Ltd. Dongsheng Town, Fenjiang city in the South China Sea city water ILLY printing factory, Foshan printing factory operating the Department of commercial secret infringement dispute jurisdiction of bill the trial, the Supreme People's court, ": according to the regulations of the people's Republic of China on Anti Unfair Competition Law" in article tenth, sales of infringing trade secret infringement products produced does not belong to the provisions of the act of infringement of commercial secrets act. Under normal circumstances, using the business secret is the process of manufacturing infringing products, when the infringing products manufacturing is completed, the use of commercial secret infringement results that occur at the same time. Therefore, the use of commercial secrets act timely and results happen usually coincides with the sale of infringing products, should not be regarded as the use of commercial secret infringement results. 2009.8.
230Shanghai Changning District people's Procuratorate v. Li Jiang embezzlement case. Abstract: according to the trial "PRC Criminal Law" provisions of article 271st, post occupy crime refers to a company, enterprise or other unit staff, taking advantage of his position, the unit will be a larger amount of property illegally for himself, the so-called "using the convenience of duty", refers to the behavior of people in the implementation of crime, using their powers, or use their own for performing the duties and supervisor, management, handling the unit property convenience. General cargo carrier not only has the goods will be safe and timely delivery duty, while keeping the goods directly to the obligations of the. Freight drivers in the transit transport, storage, use the job convenience goods stolen goods behavior, the crime of duty encroachment. 2009.8.
231The Anhui Provincial Welfare Lottery Center and Beijing Defali technology development limited liability company marketing agreement dispute case. Trial of the Supreme People's court,: A, according to the provisions of the Supreme People's court "some issues concerning the application of" the PRC Civil Procedure Law > trial supervision procedure interpretation "of article thirty-third, the people's court shall request scope range or the request of the parties, in protest of the retrial process within the chapter in the retrial. If more than the range increase, modify the claim, does not belong to the scope of retrial. But the design of the national interests and social public interests, or the parties in the litigation has legally requirements increase, modify the claim, the trial and not be except objectively cannot form the other lawsuits. Two, according to the interpretation of the Supreme People's court "on certain issues concerning the application of people's Republic of China Contract Law > (a)" the provisions of fourth, after implementation of the contract law, the people's court shall confirm the contract null and void, laws adopted by the National People's Congress and the Standing Committee and the administrative rules and regulations formulated by the State Council as the basis, not to the local regulations, administrative rules. 2009.9.
232Shandong Foodstuffs Import & export company, Shandong mountain floating Group Co. Ltd., Shandong mountain float. Water Co. v. motor Qing, Qingdao Shengke Trade Co., unfair competition case. Abstract: the trial without violating the duty of prohibition of business strife, and no infringement of commercial secrets, people use their own in the original employer learning knowledge, skills as a unit of service other competitive relationship with the original unit exists, does not belong to the "unfair competition act of the people's Republic of China on Anti Unfair Competition Law" direct regulation. The original employing unit in accordance with the "Regulations of the people's Republic of China Anti Unfair Competition Law" in article second, that the act of unfair competition behavior, the people's court shall not support. 2009.9.
233Case of dispute over loan contract Chinese XinDa Asset Management Co Guiyang offices and Guiyang Kaiyang Phosphate Co. ltd.. Abstract of judgment: important sign of other joint and several liability and general guarantee phase zone lies in: general guarantee teacher enjoys a plea that creditors must be current, that the rights of the principal debtor, in the settlement situation obtained are not enforceable, to request the guarantor to assume all responsibility; and the associated responsibility to ensure that people do not enjoy a plea. Already secured debt calculation procedure aging condition, related guarantee period shall not apply. 2009.10.
234The Bureau, third people of Panlong District of Kunming City People's Government of Donghua Street office administrative punishment dispute with Kunming city planning of Kunming HENGWEI trade limited liability company. Abstract of judgment: (1) according to the "administrative punishment law" provisions of the people's Republic of China in thirty-second, the administrative organ before making a decision on administrative penalty, the facts, grounds and basis shall inform the parties to the beginning of the administrative penalty decision, and notify the parties shall enjoy rights. The executive is not in accordance with the provisions of obligation, the procedure of administrative punishment law. (2) "programming" of the people's Republic of China City fortieth stipulates: "in the city planning area, without obtaining the prescribed construction planning permits or breach of construction project planning permits for the construction, seriously affected the city planning, the people's governments above the county level city planning administrative departments shall be ordered to stop construction, the deadline to dismantle or the confiscation of illegal buildings, structures or facilities of iqta; city planning, but can still be remedied, by the local people's governments above county level planning administrative department shall order correction within a prescribed time limit, and a fine." the provisions of punishment, without obtaining construction planning permits construction planning permission or violates the constitution between the provisions of the construction builders, and only when the construction reached "serious impact on city planning" level, in order to make the deadline to dismantle the punishment. 2009.10.
235Jiangsu province Nanjing City People's Procuratorate v. Xu, Xu Guanqing, Ma Rumei Guancheng fraud case. Abstract: decision behavior person with illegal possession for the purpose of, take the fictitious capital purposes, using false documents and high returns to lure, without authority approval, to the public funds illegally raised funds, cheating behavior constitute the "PRC Criminal Law" the provisions of article 129th of the crime of fraud. Whether the human behavior has the purpose of illegal possession, shall adhere to the principle of subjective and objective criteria to be unified, namely to avoid fade out according to the loss results in objectivity, nor by the defendant own confession, according to the specific situation of the case should be comprehensive analysis of human behavior can not repay the causes of funds, such as behavior did not carry out business entities or entities operating small proportion, not through the normal operation to repay the principal and interest of the illegally raised agreed, will raise the money hidden, profligate, acts that people should have the purpose of illegal possession. 2009.10.
236The people of Hainan province Lingao County procuratorate v. Xie Jiahai blackmail and impose exactions on case. Abstract: according to the judgment of "PRC Criminal Law" provisions of article 274th, blackmail and impose exactions on crime refers to the illegal possession for the purpose of the method used, the victim to threaten or coerce, forced to ask for the behavior of public and private property. The performance of this crime threats, coercion and other methods for the behavior in the objective aspect, to public and private property owners, keeper demanded the behavior of public and private property. The so-called threats, coercion and other methods, is refers to the public and private property owners, keeper of compulsory mental, psychological fear, dare not resist, forcing the surrender of financial method. According to the "PRC Criminal Law" provisions of article 239th, the crime of kidnapping for extortion of money refers to, or by others as hostages, the use of violence, coercion, anesthesia or by any other means the behavior of others. The objective aspect is the use of violence, coercion, or method of anesthesia hijacked the behavior of others. Act of premeditated crime victim on the grounds, to control the victim, and the victim to alarm to the public security organs to coerce, to victims and their relatives rigging. In the process of the implementation of the crime, behavior person although to a certain extent in the victim's personal freedom, and to control the victim to be mild violence, but not the use of violence, coercion or other methods to hijack the victim, nor will the occult, its behavior does not constitute the crime of kidnapping, shall be convicted of the crime of blackmail and impose exactions on punishment. 2009.10.
237The loan dispute the Industrial Bank Guangzhou branch and Shenzhen City Airport Limited by Share Ltd. Abstract: a verdict, according to the Supreme People's court "about the provisions relating to" the crime suspect in the trial of cases of economic disputes, behavior person Sike official seal units or unauthorized use of the seal of the unit crime, business letter, stamped with the seal of the blank contract method to signing an economic contract, the unit has obvious fault the causal relationship, and the fault behavior and the victim's economic loss caused by the fault of the unit, the behavior of loss, it shall bear the liability for compensation according to law. Unit rules and regulations are not perfect, human oversight, ineffective against its senior management supervision, specific performance belongs to the unit has obvious fault. Two, the apparent agency refers to the actor who has no power of agency, beyond the power of attorney or agent after the termination of the right to the name of the agent to conclude a contract, while the bona fide counterpart objectively have good reason to believe that the actor has the power of attorney, the agent behavior is effective, the principal shall bear civil liability with the relative person in the contract, but if the contract system in the form of legal cover up illegal purposes, the contract is invalid contract in accordance with the law, in this case the contract law does not apply on the apparent agency regulations. 2009.11.
238Yang Peikang and the Wuxi vitality health products Co Ltd for invention patent dispute case. Abstract of judgment: litigation and section of the agreement is terminated or prevent the parties dispute dispute from happening again, the formation of mutual concessions through consensus, the contents of the settlement agreement is not limited to litigation requests parties. The party has a high degree of culture, and a lawyer to participate in litigation, mediation, reconciliation. In this case, the parties signed the agreement and the collection of the other party payment according to the contract agreement, then to the mediation agreement contrary to its real hospital for retrial, the retrial application does not comply with the "PRC Civil Procedure Law" 182nd article of the cases, shall be rejected. 2009.11.
239Wang Yunfei v. Schneider electric (China) Investment Limited company Shanghai a labor dispute case. Abstract of judgment: the prohibition of business strife is refers to the worker has the characteristics of the confidentiality obligation from the original employing unit after leaving, there shall be no direct competitive relationship of self or others business with the original employing unit of business in a certain period of time. According to the provisions of the relevant laws, administrative regulations, the employer and the employee has a confidentiality obligation, may stipulate in the labor contract or confidentiality agreement noncompete clause, and shall stipulate in dissolution or termination of labor contracts, to give workers meet competition prohibition economic compensation; not agreed to give workers a prohibition of economic compensation, or the agreement the prohibition of business strife economic compensation is too low, not in conformity with the relevant provisions, the non competition clause shall not be binding on the workers. 2009.11.
240The decision of the administrative penalty Jinshan Industry and Commerce Administration Bureau of Commerce and industry of Shanghai roaf fairy Cosmetics Co. v. Shanghai. Abstract: a ruling of the people's Republic of China, "Anti Unfair Competition Law" fifth stipulates: "operators shall not adopt any of the following illegal means in market transactions, to damage competitors:...... Unauthorized use of others. (three) business name or name, the mistaken for the goods of others;......" Therefore, the use of other enterprise name constitutes unfair competition, should have the following elements: user and users generally exist competition relations; using behavior without the consent of the license is used, are unauthorized use; be used enterprise grinder in the market have a certain visibility, the public aware of the relevant behavior easily; the public will be used to provide goods that are used the goods. Two, according to the Supreme People's court "on the trial of Civil Cases Involving Unfair Competition Law Application interpretation of several issues" in sixth the first paragraph, has certain market reputation, are known by the relevant public enterprises in the name of the font size, can be identified as the Anti Unfair Competition Law Article fifth (three) rule "the name of the enterprise". Three, people in the overseas registered enterprises, domestic enterprises and then authorized the use of the name of the control of overseas enterprises, in order to avoid the enterprises registered in China review, thereby indirectly to the unauthorized use of the well-known enterprises at home and abroad name or business name of the purpose, cause confusion among the relevant public goods although this behavior on the surface, is the use of the acts themselves registered enterprise name or in the name of the enterprise name, also belong to the "people's Republic of China Anti Unfair Competition Law" article fifth (three) Regulation of unfair prohibited acts, it shall bear the corresponding legal liabilities. 2009.11.
241China XinDa Asset Management Co Xi'an Office and the Hainan Huashan real estate development company, Xi'an China Co truction Bank Corp Qujiang branch loan contract dispute. Abstract of judgment: parties signed a civil contract with complex motivation, purpose and effect, unless the contract determine the specific transaction relationship, but also has the norms and guidance, the parties by contract norms and guidelines on subsequent relationship of rights and obligations; he has to identify and evaluate the same can also function, nature, objective and the role of civil legal act is the contract the other previous occurrence of confirmation, supplement, perfect and evaluation. 2009.12.
242Chinese XinDa Asset Management Co Xi'an Office and the Shaanxi province grain and oil import and Export Corporation Xi'an transfer cold storage, Shaanxi province grain and oil import and export corporation loan guarantee contract dispute. Abstract of judgment: according to the "Regulations of people's Republic of China real estate management law" in article thirty-first, the transfer of real estate, mortgage, housing ownership and occupancy of the housing within the land-use right transfer, mortgage and. "City housing management authority registration management approach" also provides that: "the housing ownership housing ownership and registration should be followed the premises is the right of the main land use consistent principle." Therefore, the transfer of real estate have to sell housing occupied the right to use the transfer to the assignee of the land within the limits of obligations, the assignee corresponding requirements will be purchased housing occupancy within the land use right transfer to their rights. Before the registration of change of land use right transfer completed, artificial registration name ownership, but the transferee is just right, can request will change to your own land use rights. 2009.12.
243Li Weixiang v. Li Gemei inheritance disputes. Abstract of judgment: according to the "Regulations of people's Republic of China Rural Land Contract Law" in article fifteenth, the rural household land contract, the contractor is the collective economic organizations of farmers, its essence is the farmer family within the collective economic organizations for the contracted management of rural land units trial. The way of family contract of rural land contractual management right belongs to the household, but does not belong to a certain family members. According to the "Regulations of the people's Republic of China Law of succession" in article third, heritage is a legitimate personal property of citizen's death left. Rural land contract and management rights do not belong to the individual property, so no inheritance. Except for the forest land of the household contract responsibility system, household contracting farmland when one person or several people died, contract still belongs to the household as the unit, the contract by the other family members of the farmers continue to contract; when the member contracting households have all died, the contracted management right is the members of the collective rights as the foundation, the land contract according to perish together, not by the farmer family heirs continued to contract, but cannot be treated as the family member of the heritage. 2009.12.
244Shanghai Hongzheng law firm v. China ship and marine engineering design and Research Institute of service contract dispute case. Abstract of judgment: voluntarily accept the mediation, reconciliation in the course of legal proceedings, for their own rights and interests of punishment, is a party is entitled to right of action. Law firms and lawyers as legal services, in accept party entrusts acting legal affairs, shall abide by the independent choice of the principal about the wedding. Mediation, reconciliation, even if that improper selection of the principal, shall be in the maintenance of the legitimate rights and interests of clients to consider providing legal advice, not to maximize their own interests, more the fee is based on the purpose of the agreement with the client, the relevant provision of the contract limit client accepts mediation, reconciliation. These acts not only violated the principal of litigation rights, increase litigation risk of the client, and is not conducive to the promotion of social harmony, a violation of public interests, the relevant provision of the contract also belongs to the invalid. 2009.12.