Please ask: the court should be how to deal with? ; A: the mortgage loan contract
Contract law case study:
A, a knitting factory to a department store to promote wool sweater, the price of 380 yuan per piece, *** 5,000 pieces, the same year, before the end of March all the delivery. Department store said, if the price is reduced to 350 yuan per piece, you can ask for 3,000 pieces. The knitting factory agreed to reduce the number of deliveries to 3,000 pieces, and counter-offer 360 yuan per piece, with full delivery by the end of March. The department store wrote back to agree. The knitting factory and the department store signed a wool sweater purchase and sale contract.
Knitting factory and the department store's behavior is to enter into a contract of what process? What is the position of each party?
Answer:
1, in this case, a knitting factory to a department store to promote wool sweater, the price of each piece of 380 yuan, *** 5000 pieces, the same year by the end of March all delivery. Is the offer. The offeror is the knitting factory, the offeree is the department store.
2. The department store said it could have 3,000 pieces if the price was reduced to 350 yuan per piece. It is a new offer. The offeror is the department store and the offeree is the knitting factory.
3, the knitting factory agreed to reduce the number of supplies to 3,000 pieces, well return price of 360 yuan per piece, all delivered by the end of March. Is the re-offer, the offeror is the knitting factory, the offeree is the department store.
Two, in July 1996, the lender Zhang for the purchase of more than 470,000 U.S. dollars worth of foreign apartments, and a branch of the construction bank signed a five-year mortgage loan contract, the loan amount of 23.37 million U.S. dollars, quarterly in 20 installments. At the same time, the developer of this loan to assume the responsibility of guarantee, but Zhang due to "liquidity difficulties", until June this year, only to pay the interest on the loan of 10,000 U.S. dollars, before the developer to ensure that the identity of the woman on behalf of the interest on the repayment of 9,000 U.S. dollars. The bank in a number of unsuccessful cases will be Zhang and developers to the court.
Please ask: How should the court handle?
A: the mortgage loan contract is legal and valid, and thus Zhang and the developer as the main responsibility for the dispute, *** with the repayment of the principal and interest on the loan, late payment according to the people's bank of china on the provisions of the deferred payment. Currently the measures taken by the bank is prudent investigation, pass the risk. First, the lender to provide sufficient proof of income to confirm their ability to repay. The second is to require the lender to take out personal credit insurance and pay a considerable amount of insurance costs. If the lender is three months late in repayment, the bank can auction the mortgaged property; for the period house or a larger amount of existing house, the bank and the developer generally signed a repurchase agreement, the developer is responsible for full repayment, that is, the developer of the whole full guarantee approach.
three, wang chun on January 10, 1996, borrowed to wang six a RMB 12,000 yuan, period of 1 year, the two sides agreed to an annual interest rate of 30%, at the end of the principal and interest and pay off, wang for the prevention of accidents, asked wang six a guarantee, wang six a proposed by a friend and relative of zhang yushan to do the guarantor. Time to December 1996, Wang Liujia asked for a few more months of grace, the interest remains unchanged. Wang Chun agreed to an extension of time until July 10, 1997. As the borrower Wang Liujia delayed again and again, to June 1999, Wang Chun pennies have not been recovered, and heard that the borrowing statute of limitations has expired, the guarantor is no longer liable, so find the court for consultation. Can you answer the following questions?
Please ask: Is the loan contract between Wang Chun and Wang Liujia illegal?
Is the statute of limitations of the loan contract expired? How was it calculated?
Is the guarantor liable for the guarantee?
Is the interest rate reasonable?
Can we ask for liquidated damages?
A: The contract is invalid. The loan contract is illegal and the interest rate of the loan is higher than the bank deposit rate in the same period. Invalid contract refers to the contract has been established, but because of the violation of laws, administrative regulations or public **** interest, and therefore can not occur legal efficiency of the contract. The statute of limitations shall be calculated from the time when the right holder knew or should have known that his rights had been infringed. on July 10, 1997, he did not receive the repayment, that is, he knew that his rights had been infringed, and the statute of limitations was counted from July 11, 1997 to July 10, 1999 when it expired. The General Principles of Civil Law provide that the general period of limitation is two years, and in June 1999 the limitation period had not expired. Because the loan contract is invalid, the guarantor does not bear the responsibility of guarantee
No can. The contract between the two sides did not agree to default.
Four, Chen Liwen is Zhenhua trading company's obligation to the section chief, in August 1998 because of its personal debt needs money, find Lv Guohua, said the company business needs to borrow 50,000 yuan, Lv Guohua agreed to borrow, but asked Chen Liwen to provide security, Chen Liwen found his high school classmates to Wang Xiangdong, said that the Zhenhua trading company's business is very urgent due to the lack of funds need to borrow 50,000 yuan from Lv Guohua temporary, 9,000 yuan. Guohua temporary loan of 50,000 yuan, in September can be repaid, requesting Wang Xiangdong for the loan as a guarantee. Wang Xiangdong and Chen Liwen is a former classmate relationship, and Zhenhua Trading Company and strong, so agreed to make a guarantee. Wang Xiangdong is a famous local individual, capital reorganization, Lv Guohua see Wang Xiangdong is a guarantor, then agreed to borrow money. Lv Guohua and Chen Liwen signed a 50,000 yuan loan contract, in the borrower's column, Chen Liwen filled in the Zhenhua Trading Company, and signed his name, did not cover the company's official seal. In the guarantor column, Wang Xiangdong also signed his name. Chen Liwen got the money. That is, use it to repay his personal debt. Now the loan period expires, Chen Liwen is unable to repay the loan, Lv Guohua asked the guarantor Wang Xiangdong to pay back the money, Wang Xiangdong that he was defrauded and guaranteed, refused to repay on behalf of.
Please ask: what kinds of civil legal relationships involved
Is the loan contract in this case valid? Why?
Is the guarantee contract in this case valid?
How should this case be handled?
Answer: tort legal relationship, loan relationship, guarantee relationship, security relationship.
Borrowing contract can be revoked, guarantee contract can be revoked. One party's intention is not true, by fraud, coercion or take advantage of the other party to make the other party in violation of the true meaning of the contract, the injured party has the right to request the court or arbitration institution to change or revoke the contract. After the contract is revoked, it has no legal effect from the beginning. The parties shall return the property acquired on the basis of the contract. Chen someone bears civil liability.
Fifth, the shipper Song Mou and Nanping Railway Branch on August 31, 1992 signed a contract of carriage. Agreements: 1500 boxes of apples, carton packaging, carrier transportation period of 6 days, the arrival station for the Shaping station, the consignee for Song himself. On the same day, Nanping Railway Bureau assigned Song a shed car, Song Mou own loading, loaded with 2700 boxes of apples, the goods show "fresh and perishable:. 18:00 on September 1, hung with the shed car of the 111 train arrived at the station of Hampyeong, the station scheduling 111 train stops at the station. At that time, the temperature was 37 degrees Celsius, the escort repeatedly situation at the station to hang up the invalid, the truck stayed until September 9, hanging out. Train on September 190 arrived at Shaping station, unloading the car found many apples outside the carton wet stains, after opening the box to check the apples have different degrees of rot and discoloration. By the local quality inspection department on the cause of apple decay identification, concluded that the decay is transport time is too long, high temperature, packaging is unreasonable, stacked tightly, affecting the ventilation caused by. Song mou will still edible apples for treatment of 9500 yuan, asked the carrier to compensate for the loss of 70,500 yuan (loss is calculated as follows: Nanping local purchase of apples and pay freight supply 65,000 yuan, plus the sale of apples to the Shaping can get profit 15,000 yuan, minus 9500 yuan from the treatment of apples, is equal to 70,500 yuan) carrier did not agree to, the dispute has not been resolved.
Please ask: (1) Which station should the shipper request compensation from?
(2) the shipper Song request compensation compensation should be calculated according to what
(3) the shipper Song heap damage should be responsible for the occurrence? Why
(4) if the shipper requests payment of liquidated damages for delayed arrival, wet be calculated on the basis of the total amount of the payment for the shipment, or on the basis of the total amount of the freight charges for the shipment?
(5) Is the carrier liable for damages?
Answer:
(1) Compensation should be claimed from the carrier at the terminal stage.
(2) It should be calculated on the basis of actual loss of goods.
(3) Liability shall be due for unauthorized overloading and substandard packing.
(4) It shall be calculated on a pro-rata basis on the total freight cost of the shipment.
(5) Should, because of its knowledge of "freshness and perishability", make it stay for six days and ignore the reflections of the escort. Shippers who request the carrier to pay liquidated damages for delayed arrival, the limitation period is 60 days.
Six, factory A in the newspaper advertised that: "the factory has a set of X-type stamping equipment, due to idleness is now transferring, want to buy from the contact as soon as possible." B factory director went abroad on business, the deputy director saw the advertisement that went to the A factory inspection, that the equipment manual shows that the performance of the equipment
advanced, and reasonably priced, after consulting with the director of the A factory, with the carry has been stamped with a blank contract to fill out the contract. The content of the contract: factory A supply factory B X stamping equipment, the price of 500,000 yuan; quality standards in line with the performance of the equipment specification; transportation mode for delivery; delivery period for the contract after the entry into force of the 10 days; payment period for the payment of 70% of the purchase price, acceptance of the balance of the payment; breach of contract according to the law; the need for the official seal in the stamp within 5 days of payment of the deposit of 30,000 yuan, the contract in the receipt of the deposit after The contract will come into effect after receiving the deposit. Deputy director of factory B will fill out the contract to the director of factory A, the director of factory A stamped the official seal, each holding a copy.
Please ask: (1) which act is the act of offer? (2) which act after the implementation of the contract? (3) set factory B paid a deposit, the director of the factory back abroad, see this contract, that the price is too high, that is, to the factory director of the factory called, asking for a price reduction of 30,000 yuan, the factory director of the factory immediately agreed. At this time, the original contract is still valid code? (4) set factory B to pay the deposit, the factory director to go abroad back, that this contract purchased equipment and the factory's original equipment does not match, that is, to the factory sent a telegram, the message is: the equipment does not match, forgive me for not being able to accept, look forward to agree to the termination of the contract. "A factory director received the telegram, within 15 days did not heal the reply, this is the default code? (5) set factory A factory director delivery difficulties, entrusted a car transportation company on behalf of the delivery, delivery on the way due to vehicle accidents, goods delayed to arrive at factory B one month. Factory B proposed factory A delayed delivery should be liable for breach of contract, whether in the law? (6) plant B received the equipment for installation and use 10 months later, found that the equipment inherent quality defects, plant B has the right to plant A quality objections? (7) B plant in the acceptance, found that there is no certificate of conformity of the equipment, quality assurance certificate. Necessary technical information, factory B in the off-hand commitment period whether the right to refuse to pay this part of the equipment payment? (8) factory A in the fulfillment of the contract in serious breach of contract, should be liable for breach of contract, but due to the contract only agreed "liquidated damages in accordance with the law", did not agree on the specific magnitude, factory A should bear liquidated damages?
A: factory B fill out the contract to the director of factory A's behavior;
received the deposit;
valid. Only part of the contract was changed;
is;
should be the responsibility of the transportation company;
has no right;
has the right to refuse to pay;
according to the provisions of the statute.
Seven, a machine tool factory and an industrial company signed a contract. The main content has not: by the machine tool factory to the industrial company to provide a milling machine, valued at 22,000 yuan, freight and other incidental costs ***1500 yuan, delivery date for the end of December of the same year, payment within 10 after the arrival of the goods. The machine tool factory postponed delivery for 1 month, and after receiving the goods, the industrial company has not paid for the goods on the ground that the machine tool factory postponed delivery. After the machine tool factory repeatedly urged to pay 1. 50,000 yuan, the machine tool factory demanded the other party to repay the arrears and bear the delayed payment of liquidated damages.
Please ask: how should the dispute be handled?
A: the contract parties are at fault. Contract law provides that both parties are at fault, each should bear the corresponding responsibility. This contract dispute is caused by the improper performance of the contract between the two parties, the machine tool factory delayed delivery, the industrial company delayed payment, is a breach of contract between the two parties. One of the parties does not fulfill the contractual obligations or the performance of contractual obligations do not meet the agreement, shall bear the responsibility to continue to perform, take remedial measures or compensation for damages and other breach of contract.
Enterprise law case study
I. In early October 1996 a city Xinhua bookstore due to the needs of business management, and the city Hualian trading company signed a purchase and sale contract. The contract stipulates that the company before the end of October, the supply of the new bookstore "Lenovo 586" 10 computers, the total price of 110,000 yuan, the new bookstore to pay 50,000 yuan, the balance within two months. Any party violates the contract shall bear liquidated damages of 15% of the total price of the subject matter of the default part of the contract. After the contract was signed, Hualian Trading Company provided 10 sets of "Lenovo 5856" computers to the Xinhua Bookstore as promised, but the Xinhua Bookstore paid 50,000 yuan only when it took delivery of the goods, and the balance was paid late, and the Hualian Trading Company negotiated with the Xinhua Bookstore for many times, and the Xinhua Bookstore failed to fulfill its obligations due to the intervention of the higher authorities. Due to the intervention of the higher authorities and failed to fulfill the obligation to pay, its higher authorities
City Bureau of Culture that the new bookstore did not report to the higher authorities for approval, unauthorized purchase of computers, is a violation of financial discipline. Therefore, the contract between the new bookstore and Hualian was invalid. For this reason, Hualian sued the court, demanding that the city's Xinhua Bookstore fulfill the contract and assume responsibility for breach of contract.
How should this case be handled?
A: in this case, the new bookstore and hualian company signed a contract of purchase and sale, the contract subject qualified, the content is legal, the rights and obligations of the two sides are clear and specific, should be regarded as a valid economic contract. Both for the valid economic contract, in the new agreement has not been reached before, the contract must be in accordance with the relevant provisions of the contract between the two parties to fulfill the contract, any party default, must bear the legal responsibility and the contract stipulated in the relevant breach of contract.
New China bookstore's higher authority of the city culture bureau for new China bookstore did not report to the higher authority for approval, unauthorized purchase of computers, is a violation of the financial discipline, new China bookstore and hualian company's contract is invalid understanding and behavior, is the lack of legal awareness, infringement of the enterprise management behavior, is completely wrong.
China's relevant laws: the right of enterprise management refers to the enterprise to the state grants its management of property that is the property of the enterprise enjoys the right to possession, use and disposal in accordance with the law. Xinhua bookstore as an independent legal person enterprise, due to the needs of business management, and hualian trading company signed a computer purchase and sale contract, is belong to the normal exercise of their own rights, material procurement right is part of the right to enterprise management, and its higher authorities city cultural bureau of the intervention is undoubtedly the infringement of the right to enterprise management, is completely wrong.
In this case, the new China bookstore only pay 50,000 yuan at the time of picking up the goods, the balance of the delayed payment, belongs to the breach of contract, must bear the legal responsibility and the contract stipulated in the relevant breach of contract. The court should support the city of hualian trading company to perform the contract, and assume responsibility for breach of contract, the judgement of the city of xinhua bookstore to perform the contract, settle the balance owed and in accordance with the provisions of the contract, according to the contract, the default part of the subject of the total price of the amount of 15% to bear the liquidated damages.
Bankruptcy law case study
A, a city in the north of the fourth cotton textile factory due to mismanagement, resulting in serious losses, to insolvency. So the factory directly to the location of the C district people's court to apply for bankruptcy. The court accepted the case. May I ask: whether the court should accept the case? Why?
Answer:The court should not accept the case.
Article 3 of the Bankruptcy Law stipulates: "If an enterprise is unable to pay its debts as they fall due due due to serious losses caused by mismanagement, the enterprise shall be declared bankrupt in accordance with the provisions of this Law". The debtor can not pay the debts due, creditors and debtors can apply for the declaration of bankruptcy of the debtor. However, if the debtor applies for the declaration of bankruptcy, it should be with the consent of its higher authorities. When accepting such cases, the court shall check "the opinion of the superior competent department of the insolvent enterprise or the authorized department of the government agreeing to the application for bankruptcy" and relevant information before accepting the application for bankruptcy if it is made by the debtor. In this case, the Fourth Cotton Spinning Mill was insolvent as a result of mismanagement and severe losses. Directly to the location of the C district people's court to apply for bankruptcy. Does not comply with the relevant provisions of the law, C District People's Court to accept the case is not right.
Securities law case study
A, Zhang, a securities company for the public relations department in charge, due to work relationships, often grasp some of the stock price rise and fall. In accordance with the company's business regulations, the staff hold information shall not be leaked to the outside or for their own benefit. A chance opportunity, Li Mou learned of the company's directors of the stock market analysis predictions. Li told her husband, Song, the results of the predictions. Song bought 4,000 shares of Feiluo stock. A few months later, the stock price of Feiluo stock company rose sharply, and Song sold the shares and made a profit of more than 6,000 yuan. Question: Is Song's income lawful income? Why?
Answer:No. The answer is no. See the textbook section on insider trading. The act of buying or selling securities, or leaking insider trading, is called insider trading, when a person who is privy to insider information about securities trading or who illegally obtains insider information about securities trading buys or sells securities, or leaks information, before information involving the issuance of securities, trading, or other information that has a significant effect on the price of securities
has been made public.
Two, a joint-stock company conducted continuous trading on the Shanghai Stock Exchange near the close of trading through four individual accounts with the prefix "A" to falsely buy and sell without transferring ownership of the securities in order to raise the price of the company's shares, resulting in the closing price of the company's shares on that day rising by 102% compared with that of the previous day. In the following one month, the securities department of the Company successively utilized nearly RMB 20 million to buy 120,000 shares of the Company's stock. Subsequently, the company's securities department will be the above stocks and the previously stored stock full book dumped, *** profit of 5,879,700 yuan.
Please ask: Is there a legal basis for the company's behavior? Why?
Answer:The company's behavior is market manipulation, constituting the crime of manipulation of securities trading prices. With the purpose of obtaining benefits or reducing losses, using its capital, information and other advantages to manipulate the market, affecting the securities market price, creating the illusion of the securities market, inducing or causing investors to make decisions on securities investment without knowing the truth, and disrupting the order of the securities market is called manipulation of the market price.
3. Flying Dragon Co., Ltd. was established in 1994 by several former state-owned enterprises in accordance with the law, with a registered capital of 90 million yuan RMB, and issued 900,000 shares, which were approved by the State Council's securities supervisory and regulatory authorities and permitted to list and trade its shares. The company made a small profit for three consecutive years from 1994 to 1996; the total **** of dividends and bonuses available for distribution was only 1 million yuan, which made it difficult to pay shareholders' dividends; the operation was even worse in 1997, and the company was in the red in the first six months, which made it difficult to turn over funds. In order to solve the shortage of funds and maintain the credibility of the company's stock, the board of directors made a decision to increase capital and issue new shares in July 1997, which was submitted to the shareholders' meeting for discussion and approval. The shareholders' meeting decided to issue 100,000 new shares with a par value of RMB 100 per share, and the shares were sold at par value to raise RMB 10 million. After the shareholders' general meeting made the decision to issue new shares, an announcement of the issuance of new shares was published in the newspaper in October 1997, and the public offering of shares to the public began.
Please ask:Is this legal? Why?
Answer: After the establishment of a company limited by shares, in order to expand its scale of operation and increase its capital, it may apply for the public offering of new shares, but it must comply with the legal conditions for the issuance of new shares and follow the legal procedures. The Company Law stipulates the necessary conditions for a company to issue new shares:
(1) the shares of the previous issue have been fully raised with an interval of more than one year;
(2) the company has made profits continuously for the last three years and is able to pay dividends to its shareholders;
(3) there are no false records in the financial accounting documents of the company in the last three years;
(4) the company's expected profit rate up to the bank deposit rate for the same period. However, the company is not subject to item 2 above if it distributes new shares with the current year's profit. The Company Law also stipulates the procedures for the issuance of new shares by a company, i.e., resolution by the shareholders' meeting, examination and approval by the competent authorities, announcement of relevant documents, signing of underwriting agreement, registration of changes and announcement.
Your company, however, has made a small profit for three consecutive years since its establishment, making it difficult to pay dividends to shareholders, and suffered a serious loss in 2002, all of which do not comply with the conditions for the issuance of new shares stipulated in the Company Law. In order to circumvent the law, your company also decided to issue shares to the public and raise funds without reporting to the State Council's securities management department for approval, which violates the provisions of the Company Law on the procedure of issuing new shares.
The Company Law also stipulates that if a listed company has one of the following circumstances, the securities administration department of the State Council shall decide to suspend the listing of its shares:
(1) the company does not have the conditions for listing due to changes in the total amount of its share capital and distribution of its equity;
(2) the company fails to disclose its financial status in accordance with the regulations or makes a false record of its financial accounting report;
(3) the company has committed major violations of law; and (3) the company has committed a major illegal act;
(4) the company has suffered losses for the last three consecutive years.
Therefore, your company's decision to issue new shares to the public without the approval of the securities administration department of the State Council without having the conditions for issuing new shares is a major violation of the law, and the securities administration department of the State Council will impose penalties, such as suspension of the listing and trading of the shares, for your violation of the law.
Refer to the statutory conditions for the issuance of new shares by the company and its handling provisions. The issuance of new shares shall be submitted to the relevant ministries in addition to the resolution made by the general meeting of shareholders