The case analysis topic

1, a because of difficulties in life, in 2000 March 5 houses sold to B a. Two years later, B will be 2 of them to the C. C in the flip, put out a piece of Qing Dynasty, in 2002 August eighty thousand yuan to ding. B after hearing the news in 2004 January to C for the price, the cultural relics department said his father hid. A C sell know for cultural relics to Ding in 2004 September, the cultural relics department said the grandfather. B ask for no result, respectively, to the people's Court of the place where the city of X. The court rejected a B sue, sue. After the trial, municipal administration of cultural heritage in the cultural relics should be nationalized as reason, issued a letter to the X City People's court, for the cultural relics in the collection and display.

   How does the litigation status yibingding and Municipal Bureau of cultural relics and why?.

  Answer:

(1) B is the plaintiff, the defendant C, X City People's court trial is correct, because there are people Ting dispute between them, and B the prosecution does not exceed the limitation of action. (2 points)

 (2) X City People's court rejected a complaint is correct, because it has exceeded the limitation of action, C in 2002 June the excavated cultural relics sold to Ding, and armor was indicted in 2004 September. (6 points)

(3) the X Heritage Management Bureau in letter form to the X City People's court for propylene excavated cultural relics, is the general administrative behavior, action is not to prosecute, does not have legal status. (7 points)

2, a and B have dispute to a basic people's court, the court received the plaintiff indictment, upon examination, that meet the conditions of prosecution, notify the parties tenth days on, fifteenth days send a copy of the indictment to the defendant.

Correctly is the practice of the court? Why?

Answer:

(1) the court shall within 7 days upon receipt of the complaint filed. 10 days more than the filing deadline.

(2) the court shall in the case within 5 days from the date of send a copy of the indictment to the defendant. In this case the court late in 12 days of the delivery of complaint.

3, a day on which in shopping malls and B disputes, will b wounded, also damaged goods. Subsequently, the mall to the location of a grass-roots court, demand a compensation goods. A grassroots court heard a wounded B, then B additional common plaintiff. B presents only resolved by the people's mediation committee, but the court is not allowed. Correctly is the practice of the court? Why?  

Answer:

(1) should not be added as a co plaintiff B. This is the two unrelated to infringement of personal rights and property rights infringement cases, B shall decide whether or not to prosecute, B, this is B litigation rights.

(2) B is willing to solve by the people's mediation committee, is correct, is his right, should encourage, a grassroots people's court is not allowed to be wrong.

4, a to a grassroots people's court, ask B repay a debt of 100000 yuan. A basic people's court after accepting the application, notify a litigation preservation. And to form a collegial panel after 5 days to inform the parties. Correctly is the practice of the court? Why?

Answer: (1) a basic people's court to inform the plaintiff a must present litigation preservation is wrong, whether to apply for the preservation of the proceedings is the litigation rights of the parties, the parties should be decided, the court shall be subjected to arbitrary interference. (2) the people's court formed a collegiate bench, the parties shall be notified within 3 days.

5, the introduction of the case:

   Live in a district Zhao Moumou (Party A) and Home Yi Qu Wang Mou (b) housing rental contracts signed, Wang will be located in the third area of a 380 square meters of the two storey rented to Zhao Moumou restaurant business. In addition to the agreed contract leases of things, also agreed: "a leasing process such as the decision to buy this house, 4000 yuan per square metre price to buy, the specific matters further Zhao Moumou restaurant opened Business Flourishes, was decided to lease housing to buy long-term business. However, due to price increases, the king does not agree to sell. Zhao Moumou prices L50 million for lodgment notarization, Wang still don't agree to sell. After Wang Mou to 4500 yuan per square metre price signed with new leaves, the housing sales contracts, the contract between the arbitration clause. Zhao Moumou to prevent Wang XX and new leaf sold, bring a lawsuit to a third district people's court, requesting that trading terms of lease contract is effective and decision Wang XX to perform its obligations for housing transfer procedures. After court, Wang put forward the objection to jurisdiction, the court issued a notice of rejection after examination. The first instance court after hearing that, the appointment contract relationship between the original defendant, but do not constitute a buyer seller relationship, so the decision to dismiss the plaintiff's claim. Zhao Moumou appeal.

The problem:

(1) what is the case in court proceedings do not conform to the law? What is the right thing to do?

Answer: Notice of objection to the jurisdiction of court rejected by mistake, should use the ruling.

(2) if Zhao and Wang Mou trial proceedings or the first instance proceedings, new leaves the company's and Wang Mou between the sales contracts for arbitration, request that the contract is valid and to fulfill the request, Zhao will attend the arbitration proceedings, claims he has preferential buy right? Why?

Answer: no can. No third party in arbitration procedure, Zhao Moumou into no arbitration agreement as according to the arbitration procedure.

(3) if the appeal court ruling in favour of Zhao, Zhao Moumou for execution, the new leaves the company can apply for a retrial? Why? The new leaves, can put forward the objection? Why?

Answer: can not apply for retrial. Because the new company not litigants, can put forward the objection. An outsider can be performed on a standard claim.

(4) Zhao in the prosecution of the former in order to prevent Wang XX and new leaf sold, can apply for a court to take legal means? The permission of the court the application should have what conditions? How the court should permit and execution?

Answer: can apply for a court to take measures to preserve the property before litigation. Zhao Moumou should provide guarantee conditions. The permission of the court shall make a ruling within 48 hours, and start execution immediately.

 (5) if the court of appeal upheld the decision, and Mr. Zhao and Wang Moumou after consultations, reached 2500 yuan per square metre price real contract. The contracts of sale whether constitutes the execution reconciliation? Why? Whether the court should intervene? Why?

    Answer: do not constitute the execution reconciliation, because judgment without performing content, the contract does not lead to stop execution, recovery of execution; the court does not intervene, the contract between the parties is and the enforcement of judgments and the implementation of the new civil independent.

6, a and B are respectively 600000 yuan and 2400000 Yuan funded jointly set up early dawn Development Company Limited (hereinafter referred to as the early dawn company), as by B: executive director and is responsible for the management of the company, a supervisor. B at the same time as the southwest limited liability company (hereinafter referred to as the personal investment of Southwest Company) general manager, the company owed to the company 500000 yuan for not? B and the company reached an agreement agreement: if after 3 months can not repay, B to the earth in the equity transfer 20% early dawn of the company, and said willing to pledge, and the administrative department for Industry and Commerce registration. Otherwise, Southwest Company without repayment, the company request to perform the agreement B, B to "the matter has not been and shareholders a talk" as an excuse to prevaricate, the company was intended to solve the problem through litigation. Southwest Company need to hire a warehouse, a house B decided to the early dawn, a low price to rent out to southwest company. B friend C because of the need to guarantee to a bank loan, find B. B in the name of the early dawn, the bank issued a letter of guarantee, if the repayment is not due to C by the early dawn company responsible for payment, the bank received a letter of guarantee and no objection. A is aware of the above situation, to B propose to convene a shareholders in order to solve the problem, B to business busy has not agreed to the meeting on the grounds of. The company was founded in three years, a bonus is not divided, the serious losses. The dissolution of the company a to B, but B does not agree. A decision to transfer the shares, to withdraw from the company, but can not find the transferee.

The problem:

(1) the company such as wanted to resolve through litigation and Southwest Company disputes, should put forward which claim?

Answer: (1) the payment of principal and interest repayment request of Southwest Branch; (2) request the company to undertake responsibility of breach of contract; (3) request exercise equity pledge (or the right of pledge).

(2) the company to achieve the equity pledge, to prove what it?

Answer: (1) the and B signed the equity pledge contract; (2) proved that equity pledge to the administrative department for Industry and Commerce registration.

(3) according to the early dawn company B low rent housing for Southwest Company behavior, a can take what measures?

Answer: a can for the interests of the company directly to the court filed shareholder derivative litigation (representative).

(4) how to nature and the effect of B on behalf of the early dawn, a single direction issued by the bank guarantee? Why?  

Answer: the bond with the nature of the contract guarantee, the guarantee contract effective. B without the consent of the shareholders' meeting for bank guarantee, violated the interests of the company, but the behaviors of apparent agency.

7, is located in Beijing Haidian District a company signed a contract with the Chaoyang District based company B, agreed to a B company is located in Xicheng District new office building, the arbitration clause in the contract has not been agreed upon. The new office building construction process, company a and company B because of increased workload, the progress of the project in a dispute. Both sides in the process of negotiations will be submitted via email agreed an arbitration committee for arbitration disputes. Then a company considering a variety of factors, bring a lawsuit to the people's court decision to terminate the contract, request. The problem:

 (1) where the court has jurisdiction over the case?

Answer: Chaoyang District court and the Xicheng District court has jurisdiction over. A lawsuit brought on a contract dispute, the defendant has his domicile or the contract under the jurisdiction of the people's court.

 (2) the controversial hypothesis of the prosecution of the parties to the arbitration agreement potency, can be solved through what channels?

Answer: requests the Arbitration Commission for a decision or to a people's court for a ruling. One party requests the Arbitration Commission to make a decision, the other party requests the people's court for a ruling, the people's court ruled by.

8, living in Beijing Chaoyang District, engaged in electrical appliance repair industry, the open electrical repair shop is located in Beijing Xicheng District. The electrical repair shop is individual and industrial and commercial business license registration is the owner of his brother B (live in Beijing Haidian District), B does not actually engaged in electrical repair. A hired mechanic C (living in Beijing, Shijingshan District) for customer D (live in Beijing Dongcheng District) repair a TV set. After repair, the electrical repair shop that C before work in accordance with the procedural requirements, accidentally TV exploded, causing the TV scrapped, C himself not injured. The relevant parties on how to compensate for the loss of the TV dispute, failed to reach an agreement. Now, to the court.

Ask:

(1) ding should who accused?

Answer: D should be a and B, as a joint defendant. Because the actual operator electrical repair shop is a, but the real owners is B, Ding has the right to a and B please litigation rights to this action, which can be a and B as a joint defendant (co litigants).

 (2) what the court has jurisdiction over the case?

Answer: Chaoyang District, Haidian District, Xicheng District courts have jurisdiction. (2 points) brought for infringement litigation, jurisdiction by the infringement or the people's court at the domicile of the defendant.

 (3) if the jurisdictional disputes, before the jurisdiction of the dispute is not settled, in which a court having jurisdiction in the case made a ruling, the judgment and ruling cases involved should be how to deal with?

Answer: the parties may appeal, by the court of second instance trial. The parties do not appeal, verdict. If there is an error in the judgment, can handle the procedure for trial supervision.

9, 2006, a company located in Tianjin Haihe River area and is located in Hebei Tangshan Fengrun District B company entered into a contract in Beijing Xicheng District steel supply and marketing. The contract agreed: "mode of transport: by a company consignment; place of performance: a company in Beijing Shijingshan District warehouse." A company to fulfill the contract, company B is Qianjia company 2000000 yuan loans. After two months, company B published the "large scale reduction processing steel" advertisement in the local newspaper. At the same time, preparing to split into two companies. Therefore, a company to B company behavior affect loan repayment and company B is discrete grounds, to Tianjin Haihe River District People's court for property preservation before litigation, frozen for company B bank deposit 2000000 yuan, while providing the same amount of guarantee funds. The people's court shall make a review after the frozen deposits ruling. After the company B provides the same amount of property guarantee to the court, the court shall make a ruling to lift the freeze. After a company to court. A trial, the defendant company B counterclaim requires the plaintiff to a company because of its application for property preservation before litigation for their losses.

Ask:

(1) which court has jurisdiction over the case? Why?

Answer: Hebei Tangshan Fengrun District People's court, the Beijing Shijingshan District people's court has jurisdiction over the case. In this case, the Hebei Tangshan Fengrun district is the defendant B company is located in Beijing Shijingshan District, the two sides agreed contract.

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

Answer: the jurisdiction objection shall put forward during the submission of defence.

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

Answer: a company may apply for the preservation of the proceedings before the lawsuit. A company puts forward to meet the essential requirements for preservation before litigation, namely the urgency of the situation, if you wait until after the prosecution for property preservation, because of the subjective reason relative person will lead to a company interests, also will affect the future execution of the verdict.

10, Jia Ming, male, 34 years old, living in a district of Henan Luoyang City, engaged in auto repair, is located in Henan District Luoyang City B car repair station which opened. The repair station is individual and industrial and commercial business license of the registered owners is the cousin Kaiming, Kaiming living in C District of Luoyang City, but commit doesn't actually runs the car repair station. Jiaming hired a car mechanic Qin Yue, Qin Yue living in Ding District of Luoyang city. Qin Yue customer Liu Ping (a Luoyang city e area) to repair the car. After repair, Qin Yue requirements in the repair station run according to the working procedures, careless car caught fire, causing engine damage, Qin Yue himself not injured. The relevant parties on how to compensate the loss of car of a dispute, failed to reach an agreement. Now Liu Ping to the court.

Ask:

(1) Liu Ping should be based on who should be the defendant?

Answer: Liu Ping should regard Jia Ming as the co defendant, kaiming. because the actual car repair station operator is Jiaming, but the real owners Kaiming, Liu Ping in this action has the right are Xiang Jiaming and Kaiming filed a lawsuit rights, is can be Jiaming and commit as a joint defendant (CO litigants.

(2) what the court has jurisdiction over the case?

Answer: Luoyang City District, a district area C B, people's courts have jurisdiction. A lawsuit brought on a tortious act shall be under the jurisdiction of the infringement, or the people's Court of the place where.

   (3) if the jurisdictional disputes, before the jurisdiction of the dispute is not settled, in which a court having jurisdiction in the case made a ruling, the judgment and ruling cases involved should be how to deal with?

 Answer: the parties may appeal, by the court of second instance trial. The parties do not appeal, verdict. If there is an error in the judgment, can handle the procedure for trial supervision.

11, Liu Moujia lived in a region, to live in B zone friend Zhang loan 200000 yuan, live in area C Zhao for Liu guarantee, the three in the Liu Mou signed a loan contract and the actual delivery of cash, the contract of Zhao to assume the general guarantee liability. After Liu due to severe loss of stock market, the money fails to repay the due zhang. Now Zhang on the loan disputes to the court. Ask:

(1) in this case, Zhang Zhao can first separately as the defendant? Why?

Answer: in this case, Zhang will be the first prosecution of Liu as a defendant, not first alone will Zhao as the defendant. because in the loan contract relationship, Liu and Zhang relationship of rights and obligations directly, so Zhang alone against a defendant Liu as litigation; (2) the contract stating Zhao to assume the general guarantee liability, Liu Zhao as first alone will not.

    (2) which the people's court for the case law jurisdiction? Why?

Answer: has jurisdiction should be a District People's court. According to the provisions of the civil procedure law, a lawsuit brought on a contract dispute, the defendant has his domicile or the contract under the jurisdiction of the people's court.

A (12, living in the A area) to open a restaurant in the B area, but individual business license registration is the owner of the B (living in the C area). One day at noon, a customer at meals, because the restaurant provides the glass burst and burned, consultation between the two sides have not, the customer then sued. Ask:

(1) the customer shall take who as the defendant?

Answer: the customer should be a and B, as a joint defendant. The laws and regulations of our country, the owner registered on the business license is inconsistent with the actual business operator, joint action for the owner and the actual operator.

(2) what the court has jurisdiction over the case?

Answer: the people's court A, B, C district has jurisdiction. The provisions of the civil procedure law, because the tort lawsuit, tort (by B) at the place where the (A, C) under the jurisdiction of the people's court.

13, Lee will own a two bedroom rental housing to the song, the term is 3 years, but the term is over, Lee asked song to move out, to recover the occupied housing, but the song has been reluctant to return home. In desperation, Lee to the intermediate people's court indictment, ask, the intermediate people's Court of the city should be accepted? Why?

Answer: the city intermediate people's court shall not accept the case, belonging to the jurisdiction of the grassroots people's court. According to the "Civil Procedure Law", the intermediate people's courts shall have jurisdiction over the following civil cases of first instance: (1) major cases involving foreign elements; (2) to have a major impact on the area of the case; (3) determined by the Supreme People's court jurisdiction of the intermediate people's court case.

14, Zhang and Liu as a partner in Business Hotel dispute, Liu Mousui to the county people's court, called for the lifting of the contract, the county people's court made a verdict. Defendant Zhang dissatisfied, to appeal to the intermediate people's court, the intermediate people's court accepts the defendant, making the judge Shen's handling of the case. Shen after investigation and trial, sentence upheld. Ask, processing City Intermediate People's court in the case whether the program is correct?

Answer: not right. According to the provisions of the civil procedure law, the people's court in civil cases of second instance shall form a collegial panel.

15, the city Meimei garments factory is located in a zone, plans to build a new factory district B. Through the tender and bid program, and new construction company (registered in area C) in Ding District signed a construction contract. In the process of construction of both because of the contract dispute, the United States and the United States garment factory to solve disputes by the people's court.

Q: Meimei clothing factory should sue to where the court?

16, the United States and the United States garment factory and Lily mall signed a supply contract, the contract if any dispute arises, submit the Arbitration Commission for arbitration. In the process of supply disputes between the two sides, the United States and the United States garment factory first to the Arbitration Commission for arbitration of a contract, but Li Li mall has told a court.

Q: a court should accept Lily mall sued?