Please answer:
(1) Is the statement of the salesman B of the mall correct? Why?
(2) What should consumer A do?
(1) The mall salesman B's statement is incorrect. Because according to Article 45 of the Law on the Protection of Consumers' Rights and Interests, the operator shall be responsible for repairing, replacing or returning the goods that the state stipulates or the operator and the consumer agree to repair, exchange or return. In the warranty period of two repairs still can not be used normally, the operator shall be responsible for the replacement or return. For repair, replacement, return of large items, the consumer requires the operator to repair, replacement, return, the operator shall bear the transportation and other reasonable costs. This shows that the mall salesman B claimed that "the mall expressly provides that any home appliances purchased in the mall can only be repaired if there is a problem can not be returned" statement is incorrect.
(2) According to the "Protection of Consumer Rights and Interests Act", Article 34, consumer rights and interests of consumers A and the operator of the mall disputes can be resolved through negotiation and settlement with the operator, request for mediation of the Consumers Association, to the relevant administrative departments to complain to the arbitration and litigation to the People's Court and other ways to resolve the issue. In addition, according to Article 35 of the Consumer Protection Law, consumer A can ask for compensation from the sales center: consumer A due to defects in goods caused by personal and property damage, you can ask for compensation from the seller, you can also ask for compensation from the producer.
12 Wang Mou, Wu Mou and Xiao Mou intend to *** with the establishment of a limited liability company for the production of gas appliances. 3 people after consultation, the company's articles of association, which include the following:
(1) the company's registered capital of 300,000 yuan;
(2) Wang Mou to the monetary capital of 20,000 yuan, Wu Mou to the value of the plant and equipment capital of 80,000 yuan, Xiao Mou to ordinary non-specialized equipment, the capital of 20,000 yuan, the capital of 80,000 yuan, the capital of 80,000 yuan, and the capital of 30,000 yuan. (2) Wang contributed RMB 20,000 in currency and Wu contributed RMB 80,000 for the value of plant and equipment, and Xiao contributed RMB 200,000 for the value of ordinary non-patent technology;
(3) The company does not have a shareholders' meeting and implements the general manager responsibility system under the leadership of the board of directors;
(4) The company establishes branch offices for business needs, and the branch offices have the status of legal persons, and are autonomous and responsible for their own profits and losses.
Q: Which of the above does not comply with the provisions of the Company Law? Why?
(1) The registered capital of a company mainly engaged in production shall not be less than RMB 500,000 yuan.
(2) the amount of non-patent technology for value shall not exceed 20% of the registered capital of the company, Xiao Mou non-patent technology for value has exceeded this limit.
(3) The shareholders' meeting is a statutory body of the limited liability company, should be established by law.
(4) in law, the branch does not have legal personality, its civil liability borne by the head office.
13 On March 20, 2003, Ms. Wang purchased an electric rice cooker in the Xing Sheng Shopping Mall in the city. On that day, Ms. Wang in the normal use of the rice cooker in the process, due to leakage of electric rice cooker and was struck by the electric current, although timely treatment is still caused by the finger crippled. on April 2, 2004, Ms. Wang to Xing Sheng shopping mall for the civil liability of the head office. Ms. Wang to Xing Sheng shopping mall as a defendant in the court, requesting the court to order Xing Sheng shopping mall for its disability due to electric shock liability. Xing Sheng shopping mall in the defense that: first, according to the provisions of the general principles of civil law, due to bodily injury compensation for the statute of limitations period for one year, so the plaintiff's lawsuit has been over the statute of limitations; second, the plaintiff was electrocuted due to the quality of the rice cooker defects, the defendant as a product seller is not at fault, the plaintiff does not have the right to ask for Xing Sheng shopping mall to assume the responsibility of compensation. The producer of the rice cooker should demand compensation from the Dongfeng electric appliance factory. The court held that the defendant's two defenses are not established, and finally ruled that the shopping mall lost.
Q:
(1) Why was the first defense of the defendant not valid?
(2) Why is the second defense of the defendant Xing Sheng Mall not valid?
(3) What is the liability of the defendant Hing Shing Mall?
(4) If the identification, the rice cooker leakage is due to the product's design and manufacturing process defects, after the Xing Sheng shopping mall compensation. What rights to Dongfeng Electric Factory?
(1) "Product Quality Law" provides that due to defects in products causing damage to claim compensation for the litigation period of 2 years from the time the parties know or should know that their rights and interests are damaged. Ms. Wang filed a lawsuit 1 year after the damage, did not exceed the statute of limitations.
(2) "Product Quality Law" stipulates that, due to product defects caused by personal, other people's property damage, the victim can ask for compensation to the producer of the product, but also to the seller of the product to claim compensation. Xing Sheng shopping mall is the seller of rice cookers, Ms. Wang as a victim has the right to claim compensation.
(3) In accordance with the provisions of the Product Quality Law, the shopping center should compensate Ms. Wang for her medical expenses, reduced income due to missed work, and living allowance for the disabled.
(4) "Product Quality Law" stipulates that the product defects caused personal, other people's property damage to the responsibility belongs to the producer of the product, the seller compensation, the seller has the right to recover from the producer. Therefore, after the Xing Sheng shopping mall compensation, the right to recover from the manufacturer of the design and manufacture of rice cookers.
14 Sun Mou and Lin Mou are victory dairy products limited company (hereinafter referred to as the victory of the company) of the director. in May 2002, Sun Mou, Lin Mou and its outside the company Zhang Mou, Wang Mou *** with the opening of a cold drinks factory. The main products of the cold drink factory were yogurt and ice cream, which were the same as those of Victory. in April 2004, Victory found out about the situation, and the company's interim shareholders' meeting resolved to remove Sun and Lin from their positions as directors and filed a lawsuit with the court requesting that the court order Sun to compensate for the damages he and Lin had suffered. It was found that Sun and Lin were ****receiving business income of 250,000 yuan during the operation of the cold drink factory.
Q:
(1) What legal provisions were violated by the behavior of Sun and Lin?
(2) How should the court decide?
(3) Is it lawful for Shengli to remove Sun and Lin as directors? (1) Sun's and Lin's behavior violated the provisions of the Company Law that directors and managers shall not operate their own business or business with others of the same kind as the company they work for.
(2) The court should order that the income of 250,000 yuan from the operation of the cold drink factory by Sun Mou and Lin Mou should belong to Victory.
(3) Victory's removal of Sun Mou and Lin Mou as directors is legal. According to the provisions of the Company Law, for Sun Mou, Lin Mou of the above illegal behavior, in addition to their income to the company, and can be given by the company to the two disciplinary action.
15 a year in May, a city post office in its business hall posted a notice, the notice provides: all by the city post office to install telephone users, all to the city post and telecommunications equipment company to buy a telephone. Users for the installation procedures at the same time, you must first pay for the purchase of a telephone, or not for the installation procedures. Notice of the implementation of a period of time, the relevant departments received reports of users, the Post and Telecommunications Bureau of this behavior was investigated and dealt with. The investigation found that the city post and telecommunications equipment company is a subordinate enterprise of the city post and telecommunications bureau.
Q:
(1) What is the nature of the offense committed by the Post and Telecommunications Department?
(2) Why is such behavior prohibited by the relevant laws?
(3) What agency should supervise and inspect this kind of illegal behavior?
(4) What should the supervisory and inspection authorities do about this illegal behavior of the Post Office?
(1) The behavior of the Post and Telecommunications Department is a forced transaction of a public enterprise.
(2) Because this kind of behavior restricts the users' and consumers' right to free choice, completely excludes other operators producing the same kind of goods from a specific market, and hinders the normal operation of the fair competition mechanism in the market, it is prohibited by China's Anti-Unfair Competition Law.
(3) Supervision and inspection shall be carried out by the industrial and commercial administrative departments at the provincial level or in the cities with districts.
(4) The Post and Telecommunications Bureau shall be ordered to stop the illegal behavior and be fined from 50,000 yuan to 200,000 yuan according to the circumstances.
16 A state-owned enterprise, Torch Chemical Factory, and another state-owned enterprise, Mars Chemical Raw Material Factory, decided to **** together as promoters to reconstruct a joint stock limited company. The articles of association of the joint-stock limited company stipulate that the registered capital of the company is RMB 50 million. Torch Chemical Factory contributed with factory buildings, machinery and equipment and land use rights, valued at 4 million yuan; Mars Chemical Raw Material Factory contributed with raw materials and factory buildings, valued at 2 million yuan; in addition, Torch Chemical Factory also contributed with its trademark and patented technology, valued at 11 million yuan, which was not high-tech. The company will be set up in the form of fund-raising, in addition to the promoters in accordance with the provisions of the subscription shares, the rest of the shares are ready to the public offering.
Try to analyze:
(1) whether the promoters meet the quorum?
(2) Does the registered capital of the company meet the legal minimum?
(3) Is the contribution of the promoters in accordance with the law?
(4) Does the public offering of shares comply with the provisions of the Company Law?
(1) The promoters meet the quorum. If a state-owned enterprise is converted into a joint stock limited company, the promoters can be fewer than five, but it should be set up by way of fund-raising.
(2) The company's registered capital meets the statutory minimum (10 million yuan).
(3) the promoters of the capital contribution of two places do not meet the legal requirements: ① to take the collection of the establishment, the promoters shall not subscribe to less than 35% of the total number of shares of the company, the Torch Factory and the Mars Factory, a *** contribution of 17 million yuan, did not reach 35% of the total number of shares (capital); ② Torch Factory's trademarks and patents valued at 11 million yuan, more than 50 million yuan of the registered capital of 20%. of 20%.
(4) promoters to take the public offering of shares to set up the company, in line with the provisions of the Company Law. However, since the shares subscribed by the promoters did not reach the statutory proportion, the proportion of shares publicly offered to the public does not comply with the provisions of the law.
17 Factory A developed a H-type high-voltage switch in 2001, filed a patent application with the China Patent Office in January 2002, and in May 2003, it obtained a utility model patent. Factory B also developed this H-type high-voltage switch in July 2001 by itself. Factory B produced 80 units of H-type high-voltage switches before the end of 2001, and started to sell them in the market in March 2002. 70 units of H-type high-voltage switches were produced by Factory B in 2002. In early 2003, Factory A found out that Factory B was selling these switches, and then negotiated with Factory B. However, Factory B thought that its behavior did not constitute an infringement of the patent.
Please analyze the following questions based on the above materials:
Did Factory B infringe the patent right of Factory A? Why?
Factory B has not infringed Factory A's patent. Article 63 (2) of the Patent Law, in the patent application before the date of manufacture of the same product, use the same method or have made the necessary preparations for the manufacture, use, and only in the original scope of the continued manufacture, use is not regarded as infringement of the patent.
18 Emmy's after analyzing the market, that men's three-button suits and large square tie will be the men's clothing trends in 2003, that is, at the end of 2002 to the local Industrial and Commercial Bank of 800,000 yuan loan to a joint venture clothing factory to order a number of men's three-button suits and large square tie. Suit cost price for each piece of 800 yuan, the cost of the tie for each 180 yuan. Industrial and Commercial Bank of China and the Emmi fashion store in the loan contract agreed: the loan period of six months, from December 30, 2002 to June 30, 2003, due to pay the principal and interest; delayed repayment in accordance with the relevant provisions of the law to assume the responsibility for breach of contract, in addition to paying the principal and interest, and penalty interest. 2003 the beginning of the fruit of the three-button suits and large square tie in the market popularity. New Year's Day and the Spring Festival, Amy's Fashion Shop has sold more than half of the goods imported, sales reached 650,000 yuan. After the Spring Festival, suit sales into the market off-season, after February, suits and ties almost no one asked for. Time is nearly the middle of June 2003, the bank loan repayment period is coming, and the Emmi fashion store due to cash flow problems repayment difficulties, so the boss of the Emmi fashion store decided to reduce the price of promotions: suits for each piece of price reduction of 788 yuan, tie price reduction of 168 yuan per strip, below cost sales. A week later, the remaining suits and ties were sold out, and the loan was finally paid off on time. In the Aimee fashion store price cuts during the promotion, other clothing stores due to the suit and tie prices higher than the Aimee fashion store, a large number of customers to reduce. So the clothing stores have accused the Emmy fashion store to below-cost price sales behavior crowded out peers; some clothing stores also to the city's industrial and commercial administration departments to complain about the Emmy fashion store low price dumping of unfair competition behavior to deal with.
Please answer:
(1) the operator to crowd out competitors for the purpose of selling goods at a price below the cost of the characteristics of unfair competition?
(2) Under what circumstances is selling below cost not an act of unfair competition?
(3) Does the below-cost promotion behavior of Amy's Fashion Shop constitute unfair competition?
(1) the operator to crowd out competitors for the purpose of selling goods below the cost of unfair competition is characterized by: ① the subject of the act is in the market transactions in the sales position of the operator: ② the operator to implement the act in the subjective and intentional, the purpose of which is to crowd out competitors; ③ operator to implement the sale of goods below the cost of the act.
(2) in the following cases, the sale of goods below cost is not unfair competition: ① sale of fresh goods; ② disposal of goods whose expiration date is about to expire or other backlog of goods: ③ seasonal price reduction: ④ liquidation of debts, change of production, shut down the sale of goods at a reduced price.
(3) Emmy's below-cost promotional behavior does not constitute unfair competition, because the purpose of price reductions in order to settle bank loans rather than crowd out other competitors.
19 A factory provides 70 days of maternity leave for female workers. Of which 10 days before the birth, 60 days after the birth; maternity leave during the payment of living expenses of 100 yuan. The factory female workers Li Mou due March 20, 2001, March 5, asked for early maternity leave, but the factory does not comply with the factory rules on the grounds that the leave will be postponed to March 10. March 20, Li Mou gave birth to a pair of twins as scheduled, and then rested at home. 18 May, the factory notified Li Mou the next day to go to work. However, due to the slow recovery of the body, Li Mou did not return to work until the beginning of June. The factory to Li Mou violation of factory rules, deducted part of Li Mou salary. Li was not convinced, so to the local labor dispute arbitration committee filed a complaint, requesting back pay.
Try to analyze: (1) What are the factory's practices that do not comply with the provisions of the labor law? Why?
(2) Li should enjoy how long maternity leave? Why?
(3) How should the arbitration committee decide?
(1) The provisions of the factory do not comply with the provisions of the labor law, and the factory's refusal of Li's request for leave and withholding part of Li's salary do not quite comply with the provisions of the labor law. Because the provisions of the female workers labor protection regulations, female workers maternity leave for 90 days, including 15 days before and 75 days after the birth, maternity leave wages.
(2) According to the above provisions, in case of multiple births, the maternity leave will be increased by 15 days for each additional baby. Therefore, Li should be entitled to 105 days of maternity leave.
(3) The Labor Dispute Arbitration Committee should rule in favor of Li's complaint and order the factory to pay her back wages.
20 A County, a petrochemical dye factory, sulfuric acid plant long-term acidic wastewater discharged through its sewage pipe not far from its plant into a river, the river water into the mirror lake located in County B. In the first half of 2003, due to the long-term drought, no rain, the lake level fell, but the acidic wastewater discharged by the factory has not been reduced, resulting in the lake water was acidic. For many years, the phenomenon of a large number of dead fish has not occurred. However, since June 2003, there have been more and more dead fish floating on the surface of the lake. Environmental protection department of the lake water monitoring results, pH value of 4.8. The dead fish laboratory analysis, its conclusion for the corrosion of acid water and death. Approved by the fishery administration department of County B, the direct economic loss caused by the dead fish was 250,000 yuan. Zhou found two sewage disposal units, the Petrochemical Dye Factory and the Sulfuric Acid Factory, along the river and demanded compensation for the loss of the dead fish, which was refused. Zhou then filed a lawsuit with the People's Court of County B. The case was heard by the court. During the trial, the defendant petrochemical dyestuff factory submitted a monitoring report issued by the Environmental Protection Bureau of County A that the pH value of the wastewater it discharged complied with the discharge standard, and argued that it should not be held liable for compensation for the pollution of dead fish. The sulfuric acid factory argued that although the wastewater it discharged did not meet the discharge standard, it had paid the excessive discharge fee to the environmental protection department and should not be held liable for damages either. However, the People's Court of County B still ruled that the petrochemical dyestuff factory should compensate 100,000 yuan to the plaintiff Zhou, and the sulfuric acid factory should compensate 150,000 yuan.
Q: (1) Zhou in the lawsuit should also submit other relevant evidence to the People's Court, why?
(2) Is the defense of the petrochemical dye factory justified and why?
(3) Is the defense of the sulfuric acid plant justified and why?
(1) It is not necessary to submit other relevant evidence to the People's Court. Because the principle of reversal of the burden of proof in environmental civil litigation.
(2) The defense of the petrochemical dyestuff factory can not be established, because in the environmental civil litigation, as long as the harmful consequences of the behavior occurred, even if the behavior is legal, but also to bear civil liability.
(3) The defense of the sulfuric acid plant can not be established, because its payment of sewage charges does not exempt it from the responsibility to compensate for the pollution damage, the existing damage occurs, it still has to bear legal responsibility.