Xu Xin: for a long time, received a large number of legal advice and help, unable to answer all of or concern. After careful consideration, the establishment of the platform. At present, the legal professional volunteer has begun to take shape, to provide free legal advice to the public, and according to the specific circumstances, to provide legal aid to have serious difficulties in the weak obligation.

The consultant, please add Micro message: mycase/ cases, or scan the two-dimensional code

This is the answer of 751st to 780th legal consultation

 

"Major" legal aid Micro message platform Q & a record (thirty-two)

 

Thank you for your trust and consulting! According to the information provided, combined with China's relevant laws and regulations, this paper answer is as follows:

751Ask: Hello, teacher, I want to three on a WAL-MART supermarket sales of questions.

1Party B in the non voluntary cases, have the right to refuse to be transferred to other departments and other shopping malls or shopping malls?

2A trade secret clause, Party A has the relevant constraints to Party B, Party A to B but not conservative commercial secrets to make economic compensation to Party A, whether there are violations?

3Party A as a salesman of a WAL-MART supermarket, his duties do not include the cashier checkout, special the cashier this aspect, but because of the shortage, leading to request Party A to help the supermarket cashier, excuse me, Party A has the right to refuse? You must obey the leadership arrangements?

Thank the teacher answer!

Answer: the premise: you signed "labor contract".

(1) because of China's "labor law" emphasizes the written labor contract, so the company changes in the job must first be and employees signed a labor contract. "On the job, the worker accepts company work arrangements, and voluntarily accept the company according to mobilize and adjust" the need for their own jobs such as agreed in the contract according to the "labor contract" article26Provision is invalid, the employer disclaims its legal liability, exclude the rights of workers, the labor contract is invalid. The work contents of labor contract terms shall be specific, easy to follow. "The employer can according to need, adjust the work place" workers similarly is invalid. Workplace changes must be determined in consultation with the employer and the worker. The supermarket to unilaterally change the place of work, work content to change labor contract, should be your own consent, you can refuse, the company can fire you is to give you compensation according to law.

(2Party A shall not illegal). According to the "labor contract law" article23Article: "the unit and the laborer may agree in labor contract conservative employer's trade secrets and confidential matters related to intellectual property. Responsible for employee confidentiality obligation, the employing unit may agree with the employee on the competition restriction provisions in the labor contract or confidentiality agreement, and agreed to terminate the labor contract in lifting or later, during the term of the competition restriction monthly compensation. If the employee breaches the competition restriction agreement, when pay liquidated damages to the employer in accordance with the contract." Article24Article: "the competition shall be limited to senior management personnel, units of senior technical personnel and other confidential personnel. The scope of prohibition of business strife, geographical, time limit stipulated by the employer and the worker. Apparently the sales situation does not belong to the prohibition of business strife.

But the conservative trade secrets is one of the basic obligations to labor, shall comply with the.

(3The supermarket clerk) belongs to the supermarket business department, the financial department belongs to, can refer to the first question. Such as signed labor contract and no agreement, according to the "labor contract law" article thirty-fifth, a unit and a laborer, can change the content of the labor contract. The change of labor contracts, shall be made in written form. If the supermarket to unilaterally change the working content, this situation can of course be refused.

(law student Duan Yuli, Sina micro-blog@A short walk to--)

 

752, Q: Hi, I'm going to park in the university campus to open a store, the main business of shower gel, shampoo etc.. But the school gave us the application form which wrote not related to business and school supermarket things. What should I do?
Answer:1, according to your questions, we studied and discussed in detail, the mainstream view, the core of the contract law is
The principle of freedom of contract, the contract shall be concluded between the parties voluntarily comply with the agreement, it shall bear the liability for breach of contract. If you feel that the school is too demanding, you can't sign the lease contract. This opinion may be established in the law.
2The above views, put aside, just from your point of view, I think you can have the following reason to support:
   The first; Park school shall be composed of multiple shops or stores, school application form is the most not specific to the lessee, if in the future was included in the lease contract, then the"Not related to business and school supermarket goods"The terms, which belongs to the pre prepared and reused for standard terms, have ruled out the main rights you too, according to the "contract law" article40Provision may be invalid, if the clauses, in interpretation, it shall make a decision not to each other's interpretation, if the dispute, can explain the efforts, such as in the"Relevant"Two words can make the article;
   Second; if you lease shops for business activities, shall apply to the local administrative department for Industry and commerce registration, apply for individual and industrial and commercial business license, the registration contains business scope of content, as long as engaged in business activities within the scope registered, shall be protected by law;
   Third; I think, individual industrial and commercial households as the main body of the market economy part, within the limits prescribed by law shall be entitled to"Independent right of management", your identity as both the lessee and manager, the lessor in the lease contract to bind you in the business activities of the business scope is not appropriate, interfering with your"Independent right of management"Individual industrial and commercial households, about whether there is"Independent right of management"The problem, mainly by the local laws and regulations to be established around, such as "Anhui Province, individual industrial and commercial households and Private Rights Protection Ordinance" article ninth:"Individual industrial and commercial households, the private enterprise shall enjoy the right of autonomous management, engaged in the production and operation activities in the scope of the provisions of the laws, regulations and rules, no unit or individual shall intervene."
Another example,"Qingdao individual industrial and commercial households and Private Rights Protection Ordinance" article ninth:"Individual industrial and commercial households and private enterprises enjoy operational autonomy, can choose the production and business operation and the project in accordance with the law, in the ratified scope of independent operation."So I think"Independent right of management"There is evidence, and in your identity as both the lessee and manager, also belong to the main right you.

Fourth; the shops named "Park", and the school has limited the lessee to others how to conduct entrepreneurship, venture projects limited, also seems to be contrary to reason. (this article views from major Zhang Tingyuan lawyers)

Fifth; since you have not yet signed a contract with the school, we recommend careful operation. If you decided to lease the store, you can consider the above reason dispute. (this article views from major Liang Hui party micro-blog Sina (lawyer)@Major case-Wang Xiaotang.

753, Q: my ID theft loans outstanding, Chinese bank blacklist me, I buy a house loan you cannot now. To remove the black list,What should I do? Seek help.

Answer: you can collect non you evidence outstanding loan to the bank and the people's Bank of China complaint, asking them to correct, if not, you direct prosecution of the people's Bank of China, Chinese bank as the third party. (Chengdu lawyer Lei Fugen)

 

754Ask: the teacher is good, simple, explain the situation: my father was remarried, died because not enjoyed the housing reform, the army gave the old cadres made a housing subsidy of about12Million yuan. Issued a document on the clear I am alive to me I died to legal heir. We have a legitimate child3One child born out of wedlock one wife one Co5A legal heir. The military retirement management center did not inform us legitimate children once12Million to the second wife. I find the army on the management center for money they say they have no obligation to give us a specific segmentation can only give wife. I find their superior units of the Municipal Civil Affairs Bureau petition office they may not give specific conclusion. I think I should find the army on the management center should belong to me but I don't know how to engage in a lawsuit of military retired management center is under the Bureau of civil affairs units I should sue? Is a civil debt disputes and administrative disputes? I should be playing what the legal relationship between the case? No matter is the director of military retired management center or Civil Affairs Bureau petition reception staff don't tell me their names I should sue the individual or unit? Please give me some teachers taking legal advice and suggestions.

Answer: this case belongs to the civil dispute over the right to inheritance, can be directly to the people's court, the three of you as a plaintiff, the defendant as a wife, children born out of wedlock for third people. (Chengdu lawyer Lei Fugen)

 

755, ask: Hello, I want to build a house in a village of the rural collective land, ready to use the villagers Wang's name for the various housing approval procedures, but the housing built after the village of Wang and Wang, I want to sign a contract, what issues need attention. How to maximize the protection of I won't lose both men?

Answer:1, the countryside homestead right of use with a certain degree of welfare and social security function, the application is the main body of the members of the economic organizations. Wang in his own name for the housing approval procedures, land use right owned by Wang all. You as the economic organization outside people and Wang Mou signed by Wang apply for homestead contract behavior, violation of the provisions of the second paragraph of "contract law" of the people's Republic of China on the invalid contract fifty-second"The malicious collusion, damage the interests of the state, the collective or the third person". Cause the contract invalid.
2, China's law on the transfer of the right to use homestead law does not make provisions prohibiting, but in how to transfer, "land management law" is only from the angle of administration provisions of the homestead right of use to approve or not, is only to standardize behavior rather than buying and selling behavior. You can refer to the local regulations on the homestead circulation of local laws and regulations, rules and other processes. In Wang made the use right of homestead and Wang Mou signed the homestead transfer contract to build housing, can also be signed housing contracts of sale in the building, the homestead right of use with the housing transfer, in order to"The maximum protection of I won't lose both men"First, according to the local regulations, regulations for the land transfer procedures after the construction of housing.
3In addition, in the contract signed with the general provisions of the contract law: (1) name and domicile of the parties; (2Mark ()3Number.4(quality)6The price or remuneration (;)7), place and method of performance period (8Liability for breach of contract; ()9) method of dispute resolution. In addition the transfer from the collective organizations agree, because the countryside collective land owned by collectives, the villagers only enjoys the right of use, sign the collective organization of witness and stamp certificate, to avoid future disputes. Sina (micro-blog@Waiting for Frank)

 

756, Q: internal performance bonus, for example:Cooling costs, performance, and other inherent subsidies, many subsidies do not to is no reason disappeared, not to vote on the abolition of welfare benefits, like these, what should I do to protect my biggest rights.

Answer:1No specific provisions of law, performance bonus, to see if the labor contract, labor contract the computing performance bonus and release form, then the picture processing unit of labor contract, did not provide performance wages can be brought to arbitration. If there is no agreement, so can not.
2, high temperature allowance, enjoyed only under certain conditions, certain types of work, usually more than thirty-five degrees Celsius, outdoor work, different places have different provisions specific standard situation, to see the local regulations. If you comply with local regulations, the unit was not sent, can be brought to arbitration. At the same time, high temperature allowance is not included in the basic wage, is a separate issue, if included in the basic wage can also be brought to arbitration.
3Not specified in the labor contract, the subsidy is not right. So we should not require security rights. The unit can give, can not give, at the same time, not because of last year to this year, will have to.
4However, some rights are protected by law, even if a labor contract without provisions also can enjoy, such as maternity leave, paid holidays, therefore, you said the subsidies to specific, according to different situation combined with the analysis of the labor contract and labor law one by one.
5How to protect the right, the biggest, you can according to the labor contract, to see what units are not implemented. Remember that it is according to the labor contract and labor law, rather than the previously received what.
6If not, implement, can request to the unit, no consensus can mediation and arbitration. (Jing Hao, Sina micro-blog@King Mu Siyu)

 

757, q:Hello. Want to ask a question. I had a land, some time ago to transfer to others, the transfer process is just we have signed the contract of assignment, without permission and approval of any sector, the effective transfer, transfer contract we signed legally do

Answer: according to the information you provide, can not determine the state-owned land and collective land. If the land owned by the state, in accordance with the relevant provisions of the law, you signed the contract is effective, but the right to the use of land does not transfer to the other side, because the real property transfer must do transfer registration. If you transfer to the collective land, the village is allowed, if the transfer to the village is not allowed.

 

758Ask: Hello, lawyer! The administrative proceedings deadline is3Months, the town government management office made a behavior, her writing is to inform, without informing regulation and aging relief way, has super3A month, I'll bring a lawsuit can be accepted? Thank you.

Answer: the township government in the form of a written tell the contents of administrative act, but didn't tell right and the prosecution, prosecution deadline should you know the relevant provisions of action and the prosecution deadline date, that is if you know now that you have the right to sue and the relevant provisions of the prosecution, the prosecution in the three months you should know after the. If you know the right of appeal and the prosecution period after receiving notice of two years later, this case has lost the right to sue.

 

759Q: forgery, canteen, and then sold to the students constitute what crime

Answer:1The meaning of the criminal law, fraud, the perpetrator objective implementation of the fabricated, fictional facts or intentionally concealing the truth behavior. Forged canteen volume belongs to fabricate, fictional facts behavior, in accordance with the characteristics of the crime of fraud.
 2266th, the crime of fraud fraud [] a large amount of public or private property,, is less than three years imprisonment, criminal detention or control, or be fined; if the amount involved is huge or other serious circumstances, three to ten years in prison, and shall also be fined; if the amount involved is especially huge or other especially serious the plot of a department for more than ten years of fixed-term imprisonment or life imprisonment, and concurrently be sentenced to a fine or confiscation of property.
 3According to the related interpretation of the Supreme People's court, the public and private property, individual fraud2One thousand yuan of above, belong to"A large amount of"Individual fraud of public or private property3Million yuan of above, belong to"A huge amount of". The legal punishment are different.
 4The crime of property violation, which belongs to the case, people get property value to meet the standards of conviction and punishment, but the country control standards vary slightly and gap. For did not meet the above criteria, shall be dealt with according to law in general. (for the administrative punishment micro-blog (Sina)@Major case-Zhang Tingyuan.

760Ask: Excuse me, Mr. Xu, the trees below ten cm diameter, land need to pay? Only need to pay transfer fees?

Answer:1, according to the current law, ground attachments and young crops compensation fee should be paid. Not to the size of species has not provided compensation.
2Both sides can negotiate, for compensation or payment of transplanting fee. However, for malicious rush, strong, the law does not protect. Sina (micro-blog@Major case-Zhang Tingyuan.

 

761Ask: the debtor to borrow money from me, in the name of a person10Million yuan, as the major shareholders and the legal representative of the garment factory as a guarantor, the loan has expired, but the debtor is suspected of committing a crime in jail, I how to claim?

Answer: because the garment factory should bear the joint responsibility to ensure that, according to the relevant provisions of the "security law", joint responsibility to ensure that the debtor in the main contract debt discharge period expired not to fulfill the debt, the creditor may require the debtor to fulfill the debt, also may request the guarantor to assume guarantee liability within the scope of.

2, then, in view of the suspected criminal in prison conditions, you can ask the garment factory to repay the loan, if the garment factory not you can the garment factory as defendants sued to the court, also can apply for property preservation, preservation of the garment factory is equivalent to10Million yuan of property. (Ningbo-Lawyer Chen Xiang, Sina micro-blog@Major caseCASE-Chen Xiang lawyers)

 

762Ask: Hello.Property disputes after divorce, the prosecution is a property undivided. Legal fees to pay how much?

Answer:1According to "the people's Republic of China, litigation fee paying means" provisions, divorce cases each pay50Yuan to300Element. Involving the partitioning of property, the property does not exceed the total amount20Million, without pay; more than20Million yuan part, in accordance with the0.5% pay. (Ningbo-Lawyer Chen Xiang, sina micro-blog:@Major caseCASE-Chen Xiang lawyers)

 

763Ask: Hello, is this, the public security bureau can register? The thing is, our company is the chain of Chapter carved shop, every night, a car back to the company and public funds back to the company, but yesterday I from the company shuttle bus to get off the bag in the car, over 10 minutes back found less1470Public funds. Can make sure no other people in addition to the driver. But last night to go to the police station, police say it belongs to negligence, not on file, to settle. This how processing is good, thank you.

Answer:1Issued by public security organs, according to the criminal procedure law and the Ministry of public security procedures for the provisions for citizens accused of criminal cases, public security organs should accept, review. Upon examination, that the facts of a crime and criminal responsibility, and under its jurisdiction, the public security organ at or above the county level shall be responsible for the approval of the people, put on record; that no criminal facts, or the facts of the crime are minor and do not require significant criminal responsibility shall be investigated in accordance with the law, or other circumstances not pursue criminal responsibility, responsible for the public security organs at or above the county level the approval of people, not on file.
2Just you, the public security organs that crime, evidence is insufficient, the events are lost, transfer error, statistical error and so on May, depending on the existing evidence in criminal cases. There is no improper reconnaissance.
3, if you think the evidence, may apply to the public security organ where the people's Procuratorate appeal, request the procuratorial organ reconnaissance supervision, supervision of the public security organ for investigation of the incident.
4If the above are not effective, behavior, you can directly to the people's court, demanding accountability and compensate for the losses. Sina (micro-blog@Major case-Zhang Tingyuan.

 

764Ask: Hello, lawyers, to you for help:Chongqing United International Building is located in Chongqing's most bustling shopping district of Monument for Liberation, by the Chongqing McGee, development, the company will house mortgaged to the bank. CITIC Bank agreed that developers will have to mortgage building owners. The developers sales to customers - not clear the building has been mortgaged fact, reveals that the late. Developers do not have the proceeds used to repay bank loans, but for other development. Now the question is:The hands of the owners of the purchase contract, not signed, China CITIC Bank will apply for auction joint International Building,900Multi family property owners will be wasted. Chongqing Monument for Liberation International Building now the most important problem is the shortage of funds, developers, unable to repay bank loans that banks will auction house situation, if we prosecute owners developers, even if the win also may not get the money, we how to rights? Thank you

Answer:1As developers, its assets and related assets, not just the building. The related assets need to be further detailed investigation. This is important for your rights.
2In the process of construction, sales or promotion, the company or the responsible person of the company is suspected of a crime suspect, but also to claim property scope a consider expanding.
3The proposed joint victims, the corresponding investigation on the plot, also can entrust lawyers to investigate. To come up with reasonable plan as soon as possible, for adults. Sina (micro-blog@Major case-Zhang Tingyuan.

 

765At present, ask: Hello, value-added tax invoices can be used as the two sides of the transaction basis, and after disputes as to request payment evidence?

Answer:1All invoices, can be as one of the transaction of evidence, other also includes such as contracts, transport delivery credentials, receipt, payment evidence, both on the bill.
2, arrears dispute, only according to open value-added tax invoice to prove that the other party owe, the evidence is insufficient, still owe one or several of the above evidence. Sina (micro-blog@Major case-Zhang Tingyuan.

 

766Ask: see, video chat sites on the Internet, because of boring and curious point went in to have a look, say to recharge can play, on the charge of money, now feel cheated, how to recover their losses.

A: I guess you said video chat is not how to wear clothes? In legal terms, if the site to pornographic content as bait for money, may constitute fraud. Even if your man deceived amount is not up to the standard of the crime of fraud, cheating other people's money should add up to enough. You can select the alarm, by the public security organ for investigation. Just can eventually recover dare not guaranteed, and if you do is to watch pornographic performances and payment, then the public security organs even able to recover stolen money, will not be returned to you. Sina (micro-blog@Samut study law)

 

767, ask: does not have a legal entity owned enterprises under the functional departments, with an elimination system, according to various points ranking, the personnel to terminate the labor contract. The system submitted to the leadership of several main group agreed, including human resources department leader. But the initial entry when a labor relationship is identified with the group human resources department, and then to the department. Want to ask1The authorities have the right qualifications, in the last phase system to terminate the labor relationship?Even though the leaders concerned consent.2Human resource department, leadership has been signed, whether can represent the human resources department has authorized the Department of the implementation of the system? We are looking forward to your reply, thank you!

Answer:1The last one eliminated, not equal to can not do the work, but can not do the work, to terminate the labor relationship. And before the termination must be trained or changing of the guard, training, the changing of the guard is still not up to the job, can relieve labor relations.
2Due to incompetent, termination of labor relations, must be thirty days in advance notice or pay an additional month's wages, and the need to pay economic compensation. Compensation standards refer to the labor contract law article forty-seven.
3In which, can not do, must be made by the unit through specific examples to prove, if not, then lift the illegal.
4If the lifting, illegal, you can continue to carry out the labor contract, or you can get two times the economic compensation, two forms chosen by you.
5, departments have no right to terminate the labor relationship, the Department can only will you can not do the work to the company to reflect, and then the company to decide whether to terminate the labor relationship. Of course, departments may convey the company decided to.
6This system is illegal, because of the labor contract law, as mentioned before, only not competent to lift, not the last can be discharged, so the implementation of the invalid, regardless of leadership has no signature. (Jing Hao, Sina micro-blog@King Mu Siyu)

 

768Q: uncle, riding electric cars is a car hit the hospitalization, the scene has been destroyed, the perpetrators are not very willing to pay, do the walk what legal procedures to request compensation and rights?

Answer: the scene was also damaged in any of the following circumstances, first, the scene was the destruction such as driving a car to escape or send your uncle to go to the hospital, in this case, the party shall be deemed as the full responsibility; second, if the reason is because your lead to destruction, if did not report immediately to report, report asked the traffic police to deal with;

Although the site was destroyed, but received a report of the police would make the treatment of the traffic accident, such as the scene trace inspection, such as if the surveillance video can take out around, and then binding for both parties of the inquiry and investigation of the witness, as a division of responsibility;

The party does not wish to compensate, according to the specific circumstances of the injured, if need to continue treatment in hospital, so even at their own expense also should be treated, patients cured, either by the traffic police team to deal with mediation, either you by the court to solve the;

If your uncle may be disabled, you need in the hospital3Months later to do disability identification, this can sue to the court, request the court to entrust the accreditation body identification (Sina micro-blog@80After the Lambs)

 

769, Q: major, national road construction land occupation and compensation of people, others for their own passage we simply want to in their own land to he cut some areas of land to him, what is this legal?

Answer: the plots, hilly grassland and retention are belongs to all its members, only the right to use, shall not be leased, transfer or sale of, also be allowed for housing and other non production purposes. Their products to their own domination, countries did not sign the agricultural tax. Privately owned livestock herders to all and domination, in around the provision shall be exempted from tax, points not not purchase. The right to operate land, hilly grassland, retention of protection by the state, shall not be arbitrarily occupied.

    You say the situation is obviously belong to the infringement of the legitimate rights and interests of you, you can find the village committee or bring a lawsuit directly to a court of competent jurisdiction, to demand the cessation of the infringement, eliminate the obstruction, compensate for the losses. But the particularity of adjacent relation based on, as you agreed, if the other party is willing to give you some compensation, you can choose to provide convenience for the.

(Chen Zhe, Sina micro-blog@Major caseCase-Love tumor infection)

   

770Ask: after a specific:

2009Years a to B borrowed35000Yuan in cash factory, and promised to immediately return, because before two people have many borrowing behavior, and a timely return, so B does not require a write iou. But because of a plant failed, failed to timely repayment, so B in2012At the end of the door to debt, for failing to meet a person, his father c wrote a promise as follows: about my son a borrowed coin B Sanwanwu thousand yuan, the skill has long without hearing a word about, thus I instead of, again until the next year lunar calendar in May returned within the creditor, no longer talk.2012Years12Month25Day..2013Annual Lunar New Year in May, again the door to debt B, C to have with a sever the relationship between father and son refused to repay its debts. And a I also with no money is in default on a loan. For a factory run by the dear brother took over (shifted the business license), so the B and to his brother again, but was refused. The following is a have to B note: big brother:Hello!Thank you very much for your help!Then say sorry!It's so troublesome for you.I have been in love and money in your,At that time I plant you help me,I don't want to lend money to my interest,A few years have not returned to you.I'm awfully sorry to hear that!Said originally gave you back in May of this year,But because of my two years unlucky not to earn money,Hope you can,I promise I'll return it to you.These two years I didn't call you,I also feel shy,You can rest assured,As long as I have you,I still do?So for your trouble,I apologize.I will never forget you for my support and help!

The problem:

 1C, text messages and a commitment can be used to confirm a true money borrowed B

 2C, written commitment has no legal effect, whether to collect from C

 3To borrow money, because factories, can you to a brother is now a factory responsible person for money

Answer: the problem1:

According to the "contract law" article10Stipulates, "the parties entered into a contract, written form, oral or other forms. The provisions of the laws, administrative rules and regulations of the written form, shall be made in written form. Agreed by the parties in writing, shall be made in written form." According to the "contract law" article197Provisions, the "loan contract in written form, but the loan is between natural persons who have agreed otherwise." According to a message can be determined between a and B in the form of oral signed a loan contract. That is, a really b money borrowed. The contract is the contract performance period the agreement is not clear, the obligor may require creditors to perform.

The problem2:

C issued letter of commitment means coexist take on B B as debt, creditors have no objection. From a to B SMS "said originally gave you back in May of this year,But because of my two years unlucky not to earn money,Hope you can,I promise I'll return it to you." Results: A to C to B commitment to2013Years5Months before it is informed, at the same time, also says it will repay B. According to the "contract law" article84The provisions of article, "the contract in whole or in part to third person, shall be subject to the consent of the creditor." The last, between the coexisting debt relations, namely C join between a and B debt relations, to become the new debtor. For B arrears, a, C shall bear joint and several liability. B to a debt, debt can also to C.

The problem3:

According to the contract relativity principle, Party A and Party B loan contract, C later to debt way to add to the contract, the parties to the contract have become. B requires only a and C repay, B and a brother, without any creditor debtor relationship, not claim the money to him.

Remind a bit:

If you end up going civil litigation, but also pay attention to the question of limitation, in this case the loan contract is not clear in the contract performance period, according to the provisions of "limitation" the provisions of article sixth, "can not determine the performance period, the period of limitation of action from the creditor requires calculation of the debtors to fulfill their obligations upon expiration of the grace period in the first, but the debtor creditor to the right. When not clear obligations, the period of limitation of action from the debtor fails to perform the obligations clear calculation date." according to the general principles of the civil law ""140Provisions, "the limitation of action for litigation, a party demands or agrees to interrupt obligations. From the time of the interruption, the period of limitation of action re calculation."

In this case, B in2012At the end of the year the first to claim a point, C instead of a promise2013Years5Before the month repayment, according to the law, the limitation of action for the period from2013Years5Month1The date of. B in the2013Years5Period of one day to a place to claim, after a break of the period of limitation of action, a to B hair message, expressed the need to pay back the money, according to the law, since the B received a message that day, interrupt the limitation period, begin to calculate. If B to litigation case, must pay attention to the period of limitation of action limitation. A morning (Sina micro-blog@Major case-Cheng Chen.

 

771, Q: I would like to ask how to visit friends in prison! What procedure to need? Thank you.

Answer: according to the "Prison Law" article40The provisions of article, criminals in prison, in accordance with the regulations can be met with relatives, guardians. The general monthly meeting1Second, every half an hour to an hour. Width tube level criminals and other special circumstances of criminals, prison can take care of increase with frequency and prolonged the time of meeting. Need to meet with criminals, proposed to meet requirements in the monthly letter, squadron officers with the letter sent "meeting notice", met with the object in accordance with the provisions of the date of meeting to prison. The criminal object in principle to meet the close relatives and guardians. Close relatives is refers to the spouse, children, parents, Sun Zinv, parents, grandparents, parents, aunts, uncle, his parents and spouse's siblings and their spouses.

Other personnel shall be approved. Carry ID card or residence booklet, witness (for the first time)

But different regions may have different provisions. Need to ask specific conditions.

 

772The original, ask: Hello, I have a friend that marital problems, the woman gave birth to children with mental retardation (after the woman home mom is mentally retarded) children have problems but conceal the fact fool man and married and, after the birth of the two contradictions, the abandoned and missing, swept away the deposit, the man asked for a divorce the woman's home, but do not agree with the report and missing, no fruit, now what method can solve the problem, ask for a divorce and child bear the responsibility!(Answer)

 

Question: Thank you.1The woman's family conditions than the man of good.2The woman's home is because they do not want children to hide, because children's hospital say is likely to be genetic, but can't produce a certain genetic proof.3Mediation is impossible, even in their hometown house torn not solve, the unilateral how to divorce, and to its claim, the need to provide proof of what? Thank you for your reply! Thank you.

Answer: (1) directly to the court in divorce proceedings. Your friend's wife abandoned his mentally retarded daughter, comply with the "marriage law" provisions in the third paragraph thirty-second of the "member", is a legal divorce reason. For the specific program you can refer to the last answer.

(2Your friend's situation) comply with the "marriage law" stipulates that the forty-sixth "member" is mentally retarded daughter. If it is a reason to initiate divorce proceedings, in accordance with the conditions of divorce damage compensation provisions of the marriage law, the no fault party may request that the woman was damages. The need to provide the non performance of statutory obligation, abandoned her child's evidence.

(3) the children after the divorce followed his father or mother, the court not only on the basis of the economic condition is good or bad judgment, but considering on the growth of beneficial aspects of the child, if your friend is trying to fight for custody of the child, provided he economy is good evidence, family environment. Like the abandonment of the situation, to the possibility is very big.

(4As for the child's disease) is the genetic mother, not to consider, because there is no evidence. Moreover, according to your description, the woman is not mentally handicapped. With no legal significance of genetic. (Duan Yuli, Sina micro-blog@A short walk to--)

   

773, Feng Qiuhong asked: two weeks ago, my uncle on the roadside parking, a peer who went out to buy cigarettes, so the headlamps didn't close. Soon came a few people, say the light is too bright, they play cards, speak bluntly, then fight. Each other in their village, and called for a lot of people, with iron bars, my uncle, who was hurt, and then check, skull crack. Then my uncle who gave my dad and uncle son dozen telephone, my brother go to, my dad to, when my dad to my uncle and my brother is not playing like. My father tried to communicate with each other, but the other party talk wildly, said that even my dad play! They have hands, struggling, my father from the other mobile phone to grab a stick, then someone called the police. The police came, the injured were sent to hospital, my dad broke a finger, a broken rib fracture. My brother nasal fracture, my uncle head fracture. The other is a part of the broken arm. We have made a slight injury, the other man is light damage. The other man was actually others wounded, but now he is my father. Public Security Bureau found the video from the opposite the supermarket, people who stick out a mile. I hope this matter will be dealt with in accordance with the law. But now the public security organ is obviously not as, after the incident, there is no detention batterers, say to make light damage to catch a person, now made a slight injury, and that you are looking for a relationship, no way. My dad really and the Public Security Bureau leadership knowledge, but since the injured have been hospitalized, now no discharge, where to find the relationship between the. Now the public security bureau is obviously biased in favor of the other party, I just hope this matter will be handled in accordance with the legal procedures, why the other batterers can be still unpunished, our three people are all lying in bed, may I ask how I should do?

Answer: you have two channels:

The first channel: according to the "interpretation of criminal procedure law" article1The provisions of the people's court, "private prosecution cases directly accepted include:......(Three)The victim has evidence to prove that the infringement of their personal, property rights of the defendant's conduct should be investigated for criminal responsibility in accordance with the law, and there is evidence that had filed a complaint, and the public security organ or the people's Procuratorate shall not be investigated for criminal responsibility in the defendant's case." Public Security Bureau not filing the case, and you want to go legal procedures, which can bring criminal private prosecution to the court directly. Suggest you hire a lawyer.

Second channels: according to the "criminal law" article111The provisions of article,"...... The public security organs shall be considered the case on file for investigation and not placed on file for investigation, submitted to the people's Procuratorate, the people's Procuratorate shall request the public security organs that do not file a reason. The people's Procuratorate considers that the reasons for not filing the case in public security organs can not be established, it shall notify the public security organs, the public security organ shall file the case after receiving the notice." On the public security bureau not filing the case, you can to the prosecutor's Procuratorate, will start the case supervision program, so as to promote the public security organs on file for investigation of the case. (a morning Sina micro-blog: Major-Cheng Chen.

 

774Q: my wife, not with my divorce case has an affair, I found three genius after we met, I let her move out yesterday, because from the2009Year to now4Years had no children, in recent years our husband and wife working outside money to her doctor, last year spent7Million, now we're getting a divorce, I can ask for compensation? Because I make more money she earned less, and often wasteful spending!

Answer: (1If you and your wife) said "an affair" did not have "not in the name of husband and wife, sustained, stable living together" situation exists, then your situation does not meet the "marriage law" forty-sixth article at the time of divorce for damages case, can not apply for compensation. Because you did not detail specific circumstances of your wife, please objective control.

(2"Marriage law" twentieth) according to the provisions of paragraph 1, the support obligation between husband and wife. You see her, is also be perfectly logical and reasonable and legitimate. During the marriage, the scope of your wages belong to the joint property of husband and wife, according to the provisions in the second paragraph of "marriage law" seventeenth, husband and wife for the jointly owned property, the right to equal treatment. You earn more money she earns less, she often wasteful legal, also cannot demand compensation. (Duan Yuli, Sina micro-blog@Short walk to a lot)

   

775Q:, rural house, house by neighbors invasion. I can claim what rights? litigation efficiency and scheduled in it Thank you

Answer: you can claim the right to the use of neighbors intrude on your homestead. A land use right belongs to the right, according to the "property law" article32The provisions of article, "the violation of rights, human rights can be settled through conciliation, mediation or arbitration, etc.." Article35The provisions of article, "a real right or may be obstructed, the right holder may require the removal or elimination of prejudice risk." 36The provisions of article, "caused a realty or chattel is damaged, the holder may request repair, redoing, replacement or restoration to the original state." Article37The provisions of article, "against property, damages are caused to the obligee, the obligee may request compensation for damage, can also request the bear other civil liabilities."

Neighbor occupation you Jia Yuan Zi house behaviour has violated your homestead right of use, you can sue him to court, asking him to remove prejudice, restitution and compensation for losses.

You at this point is the exercise of right of the real claim, according to the provisions of the law, the right of real claim to exercise without the limitation of actions, nor scheduled period, which reflects the law for the full protection of property rights. But you also want to exercise their rights, so as not to suffer a greater loss. (a morning Sina micro-blog: Major-Cheng Chen.

 

776Q: my father, real estate, drug taking, Guangdong Lufeng past drug use. His father by her mother went to the provincial consumer archives, he abuse their four daughter and her younger brother, her mother's18Years old, the smallest13Years old, with a gun threat, with electric batons to scare them, often with a blunt object beat them, then drove him out of the house, when the family situation said her mother outside the man, and the man often go to sleep, also said that my classmates to money outside the sleeping man, then was out looking for people to go home to bully them, vile, lost alcohol let off fire door, no fire, his father did not take a penny back home, I often take the students their things, buy jewelry before full back, real estate is her mother's family, and later gave him so many years, he will be step by step, company to his name, now devoid of gratitude, my classmates and their4Mother and a brother out of the house to live, I don't know how he now home industry, my classmate said her mother like real estate not. Now no hope, no way to punish the Bitch, I hope my students they can get their own things, now they rely on hundreds of thousands of deposits have three empty, now there is only tens of thousands, her mother is seriously ill and unable to work, no patient. Hey. Then check out the medicine costs50Million, her mother did not want to spend their money home their own self-cultivation, her mother is a Buddhist people, people is very good, often to help others, a clear head penetration tail man really, prior to the divorce but his dad pretended to cry. She didn't have the heart to, some people wanted to help her. To do that Bitch she said no. Now very helpless, there are ways to do.

Answer:1, affection or a abuse, domestic violence and other circumstances, in accordance with the law is the condition for divorce.

 2, at the time of divorce, the party at fault should be less or not the common property of the couple. Parenting can solicit the wishes of children, and the other party shall bear the corresponding costs of maintenance.

 3If the feelings that have been broken, and unable to maintain a common life, advise the parties agreement divorce. If no agreement is reached, may apply to the marriage registration to the people's court proceedings for divorce and division of the corresponding joint property of husband and wife.

 4If a party intentionally, transfer, conceal, destroy the common property, in ascertaining the facts, can be an additional segmentation.

 5The relationship of marriage and family, mostly relates to personal feelings, so it should be cool, do not impulse or give oneself over to blind emotions, to avoid causing greater harm unnecessary. Sina (micro-blog@Major case-Zhang Tingyuan.

 

777, ask: Hello, I want to ask: my mother in the12At the beginning of the year was hit by a motorcycle, police identified the perpetrators full responsibility system, when the other party said in private, we didn't agree, the results of each other directly refuse to pay anything, and that all programmed to go, then we appeal to a higher court, the court sentenced him to pay US medical lost wages and other more than 20000 yuan, but the other refused to pay. The court can not find the perpetrators have deposit, (the perpetrators are single, the motorcycle is borrowed his brother-in-law's). But the court from his monthly wage deduction method to repay, but the perpetrators of instability,8A month before the deduction3000Multivariate. The court let us offer the source of income, the rural areas, we have no way to understand each other, but one thing is for sure the other is deliberately not pay. Now, want to ask next how do we adults, with each other can charge interest?

Answer: our country "Civil Procedure Law" 253rd article: the person subjected to execution fails to during the judgment, ruling or any other legal document specifies the obligation to fulfill payment of money, he shall pay interest on debt during the delay in performance. The person subjected to execution fails to fulfil his other obligations during the judgment, ruling or any other legal document specified, it shall pay the surcharge for delay of performance.

Article 254th: the people's court to take the law 242nd, article 243rd, the provisions of article 244th of enforcement measures, the person subject to enforcement is still unable to repay the debts, he shall continue to fulfil his obligations. If the creditor finds that the person subjected to execution has other property, he may ask the people's court.

Article 255th: the person subjected to execution fails to perform the obligations specified in the legal document, the people's court may adopt or notify relevant units to assist in taking exit restrictions, records on the credit system, announced through the media does not perform the obligation of information and other measures provided for by law. Sina (micro-blog@Major case-Wang Xiaotang.

 

778Q:, the company every month on time deducted provident fund, but they do not pay on time to the provident fund center, due to credit problems can not be my present provident fund loans to commercial loans, the interest is my loss10Million, how can this sued the company for compensation?

Answer: first of all, if the company fails to give you the payment of provident fund, according to the "Regulations" housing provident fund management38The provisions of article: "violation of the provisions of this Ordinance, the unit fails to pay or underpays the housing provident funds, housing provident fund management center shall be ordered by the deposit; overdue is not paid, may apply to a people's court for compulsory execution." That is to say you have the right to complain to the housing provident fund center, back by the order the company, or to apply to the court for compulsory execution.

    Secondly, the issue of compensation for loss, you need to prove that the company fails to give you the payment of provident fund and you pay more for causal relationship between bank interest, which also need to prove that if the unit for you to pay the provident fund, you can certainly be mortgage loans to provident fund loans. Loss calculation, although provident fund loan interest rates lower than the mortgage, but the mortgage provident fund loans also need to spend some time and pay the corresponding cost, such as the guarantee fees, mortgage fees, his fee, these also need to be calculated in the provident fund loan cost.

     Again, if the enterprise now for you to pay provident fund, you can now apply for mortgage provident fund loan conditions, you will only have to pay before interest rates caused related claims for compensation. (Du Hongtao micro-blog Sina@Major case-Du Hongtao.

   

779Ask: Hello! My nephew on that car rental in Zhejiang Taizhou, the end of last year out of such a thing. A good guest make impertinent remarks to his mother in the car, out on the kindness he dissuaded him, that person but in return he about repair. To get off the ground, two young people in, they get beat up, my nephew grabbed a screwdriver, tear hit he will pick the things young man stabbed to death two people, thorn one will be called in injured after he surrendered. The family has reached a compensation agreement of understanding and the families of the victims, and obtain the understanding. A recent trial court, procuratorate to intentional homicide prosecution. The problem:1, can can not say he is over defense?2One detail, the people, injured, is to see people were punctured, they run, and nephew after injury. Understanding the book of emotion judgment much influence? The family members of the deceased to the asking price is too high, refused to produce the book understanding.3What is the case, the maximum sentence? Thank you

Answer: the justifiable defense, unlawful infringement behavior refers to meet in person, to take the necessary limit to prevent illegal violation occurs, the protection of law not illegally infringed. Excessive defense, is refers to take measures, exceeds the necessary limits, cause damage. Therefore, constitute unjustifiable self-defense is the premise of act self-defense.

According to China's criminal law article20Provisions, in order to enable countries, the public interest, the person himself or herself or others, property and other rights from being infringed, and to the suppression of unlawful infringement behavior, causes harm to the unlawful infringer, is justifiable defence, and he shall not bear criminal responsibility.

Justifiable defence obviously exceeds the limits of necessity and causes serious damage, he shall bear criminal responsibility, but should be reduced or exempted from punishment.

The ongoing assault, murder, robbery, rape, kidnapping and other serious violent crimes endangering personal safety, to take defensive actions, against illegal caused casualties, it is not undue defence, and he shall not bear criminal responsibility.

To be determined whether the perpetrator of self-defense, the mainstream view that require subjective to defense and defense will. That people recognize that being infringed, and for the purpose of unlawful infringement, take some necessary limit stop infringement. In judicial practice, to confirmation of self-defense, to a comprehensive analysis of the case, the subjective understanding and objective behavior. Provided by your circumstances of the case, the author thinks not self-defense, and therefore do not constitute unjustifiable defense.

The injured person saw someone stabbed down after the escape, you catch the nephew and stabbed, your nephew can be identified with intentional injury or the subjective element of intentional homicide, objectively your nephew performed against the interests of behavior, can be found guilty of intentional injury or intentional homicide (attempted). Of course, which is specifically identified crime also need more evidence with the public security organs. According to China's criminal justice policy, be forgiven by the victim, the judge according to the circumstances of sentencing consideration, it belongs to the scope of the discretion of the judge.

In this case, if the court found that the defendant constitutes the crime of intentional homicide, according to China's criminal law article232The provisions of article, the murderer, sentenced to death, life imprisonment, or more than ten years; if the circumstances are relatively minor, three to ten years in prison. (Lv Bojie, Sina micro-blog@Onion head)

 

780, ask: Hello, I prosecuted property disputes after divorce, another case of divorce damage compensation should be (after the court did not write the court is not agreed by the parties) the cases are included in the summary procedure, ask the court rules. What should I do, what should I do next?

Answer: the summary procedure applies to the court: only the basic people's court and sent the court may apply summary procedure cases of the first instance court, intermediate or above in any case do not apply summary procedure.

Cases in which summary procedure is applied: cases in which summary procedure is applied only in simple civil cases, the facts are clear, the relationship between the rights and obligations are clear, less controversial. (the trial involving the people's mediation agreement in civil cases, shall apply summary procedure.)

Do not apply to cases in which summary procedure is: ① sued the defendant One's whereabouts is a mystery. cases; ② has heard according to the general procedure of the case; the remand and retrial of the case in accordance with the procedure for trial supervision.

Characteristics of the summary procedure: the prosecution and the case of program is simple (coca head prosecution; both parties at the same time to appear in court, but the case immediately); ② summons is simple; the sole judge; the hearing procedure is simple; the trial period is short (trial three months only, and cannot be extended).

According to the information you provide, the court put your cases into the simple procedure without your approval, as long as through examination that your case is the relationship between the facts are clear, the rights and obligations are clear, the controversy is simple, can apply summary procedure.

      According to the Supreme People's court "on the application of the" PRC Civil Procedure Law "suggestions" article170And "on the application of summary procedures in the trial of civil cases several provisions" (hereinafter referred to as "Regulations") article3Bars are respectively stipulates: "the summary procedure applies to the trial of cases, the proceedings shall not be extended. In the trial process, found that the case is complex, need to an ordinary procedure, can be converted to ordinary procedure, trial by the boat, and promptly notify the parties, the trial period based on the calculation of." "The summary procedure applies to the people's court considers that the objection, objection or the people's court in the trial process found that the summary procedure is not appropriate for the case should be transferred to the ordinary procedure." if you think your case shall apply the ordinary procedure, submit a written objection to the court, asking the court to. (Chen Zhe micro-blog Sina-Love tumor infection)

 

 

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