Case: ocean company needs to Cheng Ming company produces a set of precision equipment, the two sides to find the
Case: ocean company needs to Cheng Ming company produces a set of precision equipment, the two sides to find the company to discuss, by the company to buy and rent directly to ocean company. Sino-Ocean, Cheng Ming, Epro signed the following three-party contract: (a) the company paid by Epro to Cheng Ming 5 million yuan; (b) Cheng Ming will be precision sets of equipment on behalf of the consignment to the company; (c) the company leased the equipment, the period of 10 years, the annual rent of 800,000 yuan. The contract was signed by the legal representatives of Sino-Ocean, Chengming and Ebao. Sino-Ocean and Epro stamped the contract seal, while Chengming did not stamp the contract seal. After signing the contract, Epro wanted to borrow 3 million yuan from Minan Bank to raise funds, and Minan Bank asked for a guarantee, and Epro requested Haihua to act as a guarantor. Haihua agreed to do so. Epro, Minan and Haihua entered into the following contract: (1) Minan Bank lent Epro 3 million yuan, with interest of 300,000 yuan withheld for one year. The actual delivery to Epro was 2.7 million yuan; (2) Haihua assumed the guarantee responsibility, but Epro should pay Haihua 300,000 yuan for the guarantee fee. The contract was signed by the three parties and stamped with their respective contract seals. Cheng Ming signed another transportation contract with Hope after signing the contract. After Oceanwide signed the contract. For the smooth installation and operation of the equipment, and then signed a technical consulting contract with Lixin Company, but the contract did not agree to make decisions based on advice to bear the loss.
Questions:
(1) The contract between Sino-Ocean, Cheng Ming, and Yi Bao belongs to which type of contract in contract law?
(2) now set up Cheng Ming company to not stamped with the special seal of the contract, claiming that the contract is invalid, its grounds can be established? Why?
(3) What should be the amount of the loan in the loan contract between Ebao and Minan Bank? Why?
(4) Is the agreement to pay a guarantee fee of 300,000 yuan in the contract signed by Epro, Minan and Haihua valid?
(5) now suppose that the company can not repay the Minan Bank's loan, Haihua company should bear what nature of the guarantee responsibility? Why?
(6) The quality of the equipment delivered by Cheng Ming Company does not meet the requirements. Ocean company can be pursued to the Cheng Ming company breach of contract? Why?
(7) If an accident occurs when Sino-Ocean operates on the basis of the consulting report from Lixin, will Lixin be liable for compensation? Why?
(8) If Hope is at fault in the transportation of the equipment and loses the equipment, who should claim compensation from Hope? Why?
(9) In the process of providing technical consulting, Lixin Company formed a new technical achievement, and did not agree with Ocean Company on the attribution of the technical achievement. Who is entitled to the technical result? Why?
Reference Answer:
1. financial leasing contract
2. can not, there is a signature or seal can
3. 2.7 million, the interest on the loan shall not be deducted in advance from the principal. Interest is deducted in advance in the principal, should be returned in accordance with the actual amount of money borrowed and the calculation of interest.
4. Valid. The parties are in a fiduciary relationship.
5. Joint and several liability, because the parties to the guarantee mode did not agree or agreement is unclear, in accordance with the joint and several liability guarantee liability.
6. Yes, the lessee has the right to claim, the lessor, the seller, the lessee can agree that the seller does not fulfill the obligations of the contract of sale, the lessee to exercise the right to claim. The lessor shall assist the lessee in exercising its right to claim compensation.
7. Do not assume, consulting contract if there is no agreement that the consultant is not responsible.
8. Chengming company, according to the relativity of the contract.
9. Lixin Company, the right to apply for a patent for an invention completed by commissioned development belongs to the researcher and developer unless otherwise agreed by the parties.
Examination point prediction: this question belongs to the comprehensive examination of the points on the contract law, in the case of judicial examination is very common in the comprehensive examination of the points.
(D)
Case: In December 2006, A and B development company signed a contract for the purchase and sale of commercial housing, the contract agreed: B development company will develop its Xinxin home 1 building of a set of kitchens and bathrooms refurbished three-bedroom 806 room in 2007, before the end of March delivered to A. After signing the contract, a timely payment of all the purchase price in accordance with the contract, but the B development company until the end of August 2007 to deliver the house to the A, and the A acceptance found that the B development company actually delivered the house decoration does not comply with the contract, for this reason, the two sides dispute. 2007, October, the A v. A District Court, requesting that the B development company to assume the responsibility for the failure to hand over the house on time as well as the delivery of the house does not meet the contractual obligations of the contract. The company requested that it be ordered to bear the responsibility for not handing over the house on time and for delivering a house that did not comply with the contract. In the course of the litigation, the A District Court ordered the B Development Company to bear the burden of proof as to whether it had delivered the house on time and whether the decoration of the delivered house conformed to the contract, the B Development Company failed to provide the corresponding evidence, however, in the process of the settlement between the B Development Company and the A Mou, the B Development Company admitted that the delayed delivery of the house and the decoration standard was lower than the contractual standard, but wished to settle the dispute with the A Mou to give a gift of underground garage, as the A Mou had not provided any evidence, the A Mou had not provided any evidence. Based on the facts admitted in the settlement process, District Court A ordered Company B to renovate the kitchen and bathroom of the house according to the contract and to give an underground garage to A. After the judgment was rendered, Company B refused to pay for the renovation of the kitchen and bathroom of the house. After the judgment, development company B appealed. Municipal intermediate people's court decided to reject the appeal and maintain the original judgment. , because company b refused to fulfill the effective judgment, a application for execution. In the process of execution, C put forward the underground garage belongs to the B development company sold to their own, requesting the court not to execute the underground garage.
Question:
1. Please comment on the case of A District Court in the first instance litigation process
Answer key points: (1) the A District Court ordered Company B to assume the fact of breach of contract of the example is not correct, according to the theory of civil litigation ...... plaintiffs to assume; (2) ...... facts recognized in the settlement as evidence is incorrect; (3) ...... exceed the scope of the claim.
Examination point prediction: the "Civil Procedure Law" of the amendments are mostly procedural issues, so in the review must pay attention to these, may be out of a comprehensive error picking questions, the answer is not only to point out the error point, and the requirement to do the corresponding analysis of why the wrong.
2. If the B development company that the municipal intermediate people's court's effective judgment that the basic facts of the case is a lack of evidence to prove that it should be how to exercise the right to apply for a retrial? How does the court deal with the application for retrial?
Answer key: within 2 years of the effective date of the instrument to exercise the right to apply for a retrial to the next level.
3. If the B Development Company that the municipal intermediate people's court's effective judgment that the basic facts of the case lack of evidence, it to the municipal procuratorate, the municipal procuratorate how to deal with the complaint?
4. In the implementation of the case, the implementation of the court how to deal with the claims of C?
Answer key: review within 15 days.
5. In the implementation of the case, if A and B development company negotiated an agreement by the B development company in accordance with the contract agreement to redecorate, the gift of underground garage instead of paying 80,000 yuan to a person. The settlement agreement is legal and effective? If the B development company to carry out the redecoration behavior, but did not pay 80,000 yuan, how can A realize its legal rights?
Answer key: apply for enforcement of the original effective instrument.
Answer key: apply for enforcement of the original instrument.