[Case]
Plaintiff Fang Xinliang, male, aged 37, is a cadre.
Defendant Zhou Shiming, male, 56, laborer.
Defendant Zhou Shiming has a brick structure of three rooms, located in a city of Jiefang West Road No. 138. Because there is no water heating equipment in the room, far from the unit, life, work are inconvenient, had exuded the intention to sell the room, another rent public housing. Later, by the unit employee HuangJinYun introduction, the plaintiff FangXinLiang and the defendant acquaintance. The plaintiff just transferred to the city from the field, his wife, children also transferred, because no room to live had to live in rural areas. The plaintiff learned that the defendant wants to sell, that is, he said he wanted to buy, the two sides agreed, the plaintiff to 5000 yuan to buy the defendant three rooms. The plaintiff and the defendant immediately go to the local housing authority for registration procedures. But the two agreed, the defendant will not put housing music plaintiff, to be allocated to the defendant housing, the defendant immediately vacate (at that time, the defendant unit just built three dormitory buildings, has not been allocated). Six months later, the defendant unit care of the defendant, gave him a three-room housing, the defendant let his son get married, still do not give the plaintiff to vacate the room, the plaintiff several times urged, the defendant is small to the area of the unit, his daughter to get married, no room to live on the grounds that, delayed to move. The plaintiff had no choice but to file a lawsuit to the people's court, requiring the defendant to vacate the room.
[Question]
This case between the plaintiff and the defendant is not a conditional sale of civil law?
[Brief analysis]
This case between the plaintiff and the defendant house sale is a conditional civil legal act.
Plaintiff Fang Xinliang buy the defendant Zhou Shiming house, the price of the house has been paid to the seller, the two sides also went to the housing authority for registration procedures, but because of the conditions attached to the defendant has not been accomplished, the defendant did not actually concert to the plaintiff, the plaintiff did not actually exercise the ownership of the house. Between the plaintiff and the defendant's house sale is attached to the conditions when the defendant unit to the defendant's house, the defendant when the actual music will be the plaintiff, the sale of civil legal acts of the house when it comes into effect. Six months later, the defendant unit to the defendant a set of housing, the conditions attached has been achieved, the sale of housing civil law behavior is effective, the defendant should immediately vacate the house, the house will be given to the plaintiff's control and domination, and the defendant to the small area of the unit, the daughter of the marriage of the house is no room to live on the grounds of refusing to vacate the house, is not justified. Because the two sides agreed conditions is as long as the defendant unit to the defendant housing, the defendant must immediately move out, and regardless of the unit to him how much housing, and regardless of his daughter to get married with or without housing. The plaintiff broad v. People's court to protect their rights and interests, the people's court in the ascertainment of the facts should be based on the spirit of the provisions of article 62 of the general principles of civil law, the defendant was sentenced to immediately vacate the house.2
22, agreed to be carried out by the person's own civil legal act shall not be agent
[case]
Plaintiffs jiangshu city, the paintings store.
Legal representative Li Baohua, male, 54 years old, manager of the painting store.
Defendant Song Shi, male, 65 years old, painter of Gangju City Art Museum.
On October 8, 1986, the plaintiff asked Song Shi to paint for him. At that time, the two sides agreed that: the defendant song shi in the year for the plaintiff JiangZhou city painting store to make six paintings (two women, two landscapes, two birds and flowers), paper, ink and ink provided by the plaintiff JiangZhou city painting store. The specifications of the paintings made by the Defendant Songshi were based on the seven-foot rice paper provided by the Plaintiff. Each painting, the plaintiff JiangZhou city painting store first paid the defendant 500 yuan. The next day, the plaintiff JiangZhou city painting store will advance payment of 3000 yuan and paper and ink and so on sent to SongShi. But because of the SongShi is concerned about the creation of long landscape scroll, has been no time for the plaintiff JiangZhou city painting store painting. 1986 December 4, the defendant SongShi should be invited to visit a certain country. On the way out, the seal, paper and ink left to the student valley Lin, to make six paintings, in the year to the plaintiff Jiangzhou city painting store. Valley Lin according to Song Shi's instructions rushed to make six paintings, on December 28th will be sent to Jiangzhou City painting store. But the painting store appraisal, found that the six paintings in any respect, and the work of the SongShi have a big gap, certainly not made by the SongShi. The painting store manager LiBaoHua has twice to go to SongShi, but did not see SongShi (at this time, SongShi visit did not return). 1987 January 4, SongShi return from abroad, LiBaoHua and came to SongShi, and SongShi, requesting a re-make, SongShi refused to do so. So, Jiangzhou City painting store v. Jiangzhou City People's Court.
The people's court of the city after identification, confirmed that the six paintings are not made by Songshi himself. After cicatrization, by the people's court mediation, the defendant song shi agreed to take back the original painting, and within two months personally to jiangzhou city painting store painting six.
[Question]
Defendant Songshi for the plaintiff Jiangzhou City painting store paintings why can not be represented by Gu Lin?
[Brief analysis]
Agent is an agent in the agency authority in the name of the agent with a third person to implement civil legal acts. The general principles of civil law, article 63, paragraph 3 provides: "in accordance with the provisions of the law or in accordance with the agreement of the parties, should be implemented by the civil legal acts, shall not be agent." In this case, the plaintiff and the defendant agreed, by the defendant songshi for the plaintiff jiangzhou city painting store painting, belong to the two sides agreed should be implemented by the defendant songshi himself civil legal act, this civil legal act of the subject is a specific person, can only be implemented by the perpetrator himself, namely songshi, so, songshi for the jiangzhou city painting store painting behavior can't be by the valley Lin agent.
23, the commission authority is unclear, the agent shall bear civil liability to the third party
[Case]
Plaintiff Sida stay easy company ("Sida").
Defendant Huamao General Management Department ("Huamao").
The defendant Miao Jie, male, 40 years old, employee.
On October 30, 1985, "Huamao" gave Miao Jie 10 sheets of contract paper stamped with the official seal of the unit, entrusting him to make purchases on behalf of the company. "Sida" signed three purchase and sales contracts. The contracts provided that "Huamao" would purchase 17 varieties of children's clothing, young men's and women's pants, and women's suits***, 2,194 pieces, at a total price of 13,336.4 yuan. There were 4 varieties of by-products, 499 of which cost 2836.2 yuan. The contract stipulated that the settlement was to be made every 15 days; the by-products were to be treated as a one-time price reduction and were not to be returned; one-third of each variety of the genuine goods were to be sold without return; packaging damage was to be compensated by Huamao; and the goods were to be self-picked up. Miao took the goods according to the contract and handed them over to "Huamao" for sale. However, "Huamao" did not settle the bill according to the agreed period. "Huamao sold 8 varieties of genuine products, 84 pieces, at a price of 725.07 yuan, and failed to sell one-third of each variety. "Sida repeatedly sent people to urge Huamao to settle the account on the date specified in the contract and to request the return of the goods. "Huamao refused to settle the account and count the goods on the grounds that the contract operator was not an employee of Huamao and that it had not been entrusted with the purchase of the unsold goods. "Sida's personnel and vehicles made several empty trips, resulting in a loss of 265.34 yuan. "Sida" then sued the People's Court, requiring "Huamao" to assume the responsibility for breach of contract and compensation for losses. In the course of the trial, "Sida" and "Huamao" had finished counting the genuine part of the goods and pulled back all of them; "Huamao" paid 725.07 RMB to "Sida" for the genuine goods that had been sold. "Huamao paid $725.07 to Sida for the genuine goods sold, but not for the packaging loss of $66. "Huamao insisted on returning to Sida the side products that were not to be returned under the contract's one-time price cut, but Sida did not agree to return them. Both parties held their own views.
The court held that: "Huamao" gave the blank contract paper with official seal to Miao Jie, entrusted him to purchase the goods on behalf of the company and received the goods, and the entrustment relationship was valid. Miao Jie on behalf of "Huamao" and "Sida" signed a valid contract of purchase and sale. "Huamao violated the provisions of the contract, refused to liquidate the payment for the goods, and demanded that the one-time price reduction of the goods be returned to Sida, which was unreasonable. "Huamao was mainly responsible for the losses caused to the other party. Accordingly, the judgment: "huazhou comprehensive management department from the effective date of this judgment, within ten days, to pay the "four" trading company owed 2836.2 yuan, freight 222.7 yuan, travel expenses 42.64 yuan, packaging loss of 66 yuan, * * * total 3168.09 yuan.
[Question]
Agent Miao Jie agent of the Huazang General Management Department and the Sida Trading Company signed a contract of purchase and sale is valid? Why?
[Analysis]
The defendant in this case, Huazhou Comprehensive Management Department gave 10 blank contract papers to Miao Jie, entrusted Miao Jie agent to organize the source of goods, and entered into a contract of purchase and sale with the third party, the agency relationship is clear, and Miao Jie has the right of agency. But "huamao" did not specify the authority of the agent, that is, no clear account of the variety, quality and quantity of goods purchased by miao jie, this belongs to the entrustment of authorization is unclear, article 65 of the general principles of civil law provides: "power of attorney authorization is unclear, the agent shall bear civil liability to the third party, the agent negative Joint and several liability." From this case, the defendant Huamao comprehensive management department and the defendant Miao Jie between the proxy authorization is unclear, the responsibility is mainly in the defendant "huamao"; not according to the contract to perform their obligations is also the defendant "huamao", the defendant "huamao" should bear the corresponding civil liability. The defendant "Huamao" should bear the corresponding civil liability. The court decided to confirm the defendant MiaoJie agent defendant "HuaMao" and the plaintiff "four" signed the clothing purchase and sale contract is valid, by the defendant "HuaMao" reimbursement of the plaintiff's payment, compensation for economic loss, it is correct to deal with. Economic loss, this is correct.
24, the agent is not recognized, the agent does not have the legal effect of the agent
[case]
Plaintiff Zhenxing fried goods factory.
Defendant Linjiang Fruit Co.
Third person Li Jing, Linjiang fruit company hospitality cadres
September 29, 1984, a city of Hongpo Street Street Office and a city of fried goods store, by the third person Linjiang fruit company hospitality cadres Li Jing, in a city to set up the revitalization of fried goods factory. In order to facilitate contact business, fried goods factory hired the third person Li Jing as a business consultant, a monthly allowance of 50 yuan. 1984 1027, the Jing behind the back of the leadership of the fruit company, privately in the name of the company's hospitality, and fried goods factory signed a contract for the purchase and sale of silly melon seeds, and deceptive means to cover the company's seal. The contract stipulates that; revitalization of fried factory production 100,000 city pounds of silly melon seeds supply Linjiang fruit company, the unit price of 0.8 yuan per catty, the total amount of 80,000 yuan. Delivery time is from November 1984 to November 1985. Delivery place for fried goods warehouse. 1984 December, fried goods factory and fruit company under the unit of the Ministry of Integrated Management contact marketing stupid melon seeds, integrated management department agreed to buy 6700 city pounds, immediately after receipt of payment. After that, the fried goods factory and sent melon seeds 11,900 city pounds, integrated management department also paid after receipt of goods. In doing these two businesses, the integrated management department does not know Li Jing and fried factory signed a contract, fried factory also did not explain to the integrated management department that they are in the fulfillment of Li Jing in the name of the fruit company with them signed a contract for the purchase and sale of melon seeds. When the leadership of the fruit company knew that Li Jing signed a contract with the fried goods factory for the purchase and sale of melon seeds. When the fruit company's leadership know the truth of Li Jing with fried goods factory signed a contract for the purchase and sale of melon seeds, directing the fruit company and its subordinate units to refuse to accept the goods, the two sides have disputes, litigation to the people's court.
The court of first instance held that: (1) the third person Li Jing in Linjiang fruit company leadership is not authorized, privately in the name of the fruit company and revitalization of fried goods factory signed a contract, stealing the seal of the fruit company, belongs to the agency; (2) the third person Li Jing at the same time with the fruit company cadres and fried food factory business consultant's dual identity, but on behalf of the unit (the fruit company) and the employer (fried goods factory) to sign a contract, this is the right of the agent. Fried factory) signed a contract, which is illegal: (3) the contract was signed in the name of the fruit company guest house, but stamped with the fruit company's seal, the main body of the contract is inconsistent. Accordingly, the judgment: (a) confirm the plaintiff and the defendant signed the silly melon seeds purchase and sale contract is invalid contract; (b) the plaintiff demanded the defendant to compensate for the loss, pay liquidated damages of the lawsuit can not be established, be rejected. Stir fry factory appealed against the judgment of first instance. The court of second instance that the original judgment is clear evidence, appropriate treatment, dismissed the appeal, affirmed the original judgment.
[Question]
Try to analyze the legal relationship of this case by the principle of agency, and the handling of this case is correct and things to be explained.
[Brief analysis]
The third person in this case, Li Jing, although Linjiang fruit company hospitality cadres, but he is not the fruit company's main person in charge of the case, he is in the name of the fruit company and other people for the civil line of soldering, it must be by the fruit company's legal representative of the right to grant him the right of agency. But he did not obtain the right of agency, but in the name of the fruit company to implement civil behavior, fruit company and not be recognized afterwards. Therefore, Li in the name of the fruit company and the revitalization of fried factory signed a contract for the purchase and sale of melon seeds, the fruit company does not occur the legal effect of agency. This is in the theory of civil law belongs to the powerless agent. Because, although Li Jing is in the name of the fruit company to implement civil behavior, but, Li Jing has never obtained the right of agency, Li and the fruit company does not exist in the agency relationship, of course, the fruit company can't Li Jing's behavior to bear civil liability. Li Jing's behavior to the plaintiff's loss, fruit company also not liable for compensation. The plaintiff demanded the fruit company to compensate for the loss, naturally cannot be established. The loss should be borne mainly by Li Jing. The general principles of civil law, article 626, paragraph 4 provides: "the third person knows the actor does not have the right of agency, beyond the right of agency or the right of agency has been terminated with the actor to implement the civil act caused damage to others, by the third person and and the person jointly and severally liable". In accordance with the spirit of the above provisions, the plaintiff in the case of li jing did not have the legal representative of the fruit company's power of attorney, knowing that li jing did not have the right of agency, but with him to sign the contract, also bears some responsibility. Accordingly, the court of first and second instance ruled that li jing in the name of the fruit company and fried goods factory signed a contract for the purchase and sale of melon seeds is invalid contract, the fruit company does not bear civil liability, rejected the plaintiff demand fruit company to pay liquidated damages and compensation of the lawsuit, so that the treatment is correct.
25, the agent and the third party maliciously conspired to harm the interests of the agent is invalid
[Case]
Plaintiff Zhang Jicheng, male, 27 years old, cadres.
Defendant Chen Zhen, male, 25 years old, cadre.
Defendant Tan Bing, male, 28 years old, laborer.
The plaintiff Zhang Jicheng and the defendant Chen Zhen are cadres of an import and export company, they live in a dormitory. Because of work needs, the company appointed Zhang Jicheng to go to the company's office in Shenzhen to work for a year. Zhang Jicheng on the way out, will be their own a 14 yingyu domestic color television set entrusted to Chen Zhen custody and use. Three months later, Zhang Jicheng wrote a letter to Chen, said he was in Shenzhen and bought a Japanese-made 20 British rain color TV, one at home can be sold at the right price. When Liu Bing, our driver, learned of this, he approached Tan and said that he wanted to buy the color TV, but was unwilling to pay more money. Tan said to Chen, you can write a letter to Zhang, telling him that the color TV's picture tube is out of order, the image is not clear, and to ask him to lower the price to sell. Chen was a little hesitant, but considering that he had a good relationship with Tan, often let Tan drive to his own stuff, if he did not agree that he would affect the future relationship. At the same time, once the company sent Chen out to buy beer, Chen privately pull the beer transported to their own home two cases, Tan knows about this matter, if you say out to their own detriment. Chen wrote a letter to Zhang Jicheng according to Tan's intention. Zhang Jicheng wrote back and said that if the CRT was really broken, he could sell it at a lower price. So, Chen sold Zhang's color TV to Tan at a low price of 500 yuan. Zhang Jicheng returned from Shenzhen, know the truth of the sale of color TV, asked Tan to return the color TV, Tan insisted not to return. Zhang Jicheng then sued to the court, requesting the confirmation of Chen, Tan sale of color TV is invalid, Tan return color TV.
[Question]
What is the nature of the defendants Chen Zhen and Tan Bing's act of buying and selling color TV sets? Should Tan Bing return Zhang Jicheng's color TV set?
[Brief analysis]
The defendant Chen Zhen, Tan Bing buy and sell television sets belongs to the General Principles of Civil Law, the agent and the third party malicious collusion of civil acts. The so-called agent and the third person malicious collusion of civil behavior, refers to the agent and the third person malicious conspiracy, falsehood, carry out the behavior of the interests of the agent. This kind of civil behavior has three characteristics: first, the agent and the third person malicious collusion; second, the purpose of such collusion is to harm the interests of the agent, so that the agent or the third person to obtain illegal benefits; third, this kind of collusion is intentionally committed. The defendants in this case, Chen and Tan, in the process of buying and selling televisions, there are two parties collusion of intent and behavior, and caused losses to the agent, their behavior belongs to the malicious collusion to the detriment of the interests of others, and thus belongs to the invalid civil act, from the beginning of the act from the beginning of the law is not legally binding. According to the general rules of civil law, the agent and the third person malicious collusion, damage the interests of the agent, the agent and the third person shall be jointly and severally liable. Accordingly, the plaintiff ZhangJiCheng request the defendant TanBing return color TV is reasonable, should be supported.
26, without the right to act as an agent is later recognized posthumously, the agent to the third party civil liability
[Case]
Plaintiff 04 institute
Defendant dalu industrial company.
Third person Jiang Hong, salesman of Da Lu Industrial Company.
Plaintiff 04 Research Institute on May 8, 1985, introduced to the third party road industrial company salesman Jiang Hong negotiation, by the road industrial company to supply 04 Research Institute of Tianjin production "Beijing" brand 18 British rain color television set 40 units. Jiang Hong did not seek the consent of the unit on the verbal commitment, 04 Research Institute at that time to Jiang Hong blank check. Jiang Hong will fill in the amount of the check for 57,200 yuan, into the account of the Road Industrial Company. The big road industrial company in June 24, 1985 and July 13, 1985 has twice to supply 04 research institute "Beijing" brand 18 British rain color television 9, "yellow river" brand 20 British rain color television 12, the price of 33528 yuan. There are still 23,762 yuan worth of goods not provided. 04 Institute several times to urge DALI to supply or return the remaining amount of money, DALI always "this matter is Jianghong, we have nothing to do with" as the reason for refusing to supply, refund. The plaintiff sued the People's Court.
The court found that the above situation is true, after hearing that: Jiang Hong is in the case of not accepting the authorization of the unit's legal agent, with the 04 Institute of the purchase and sale of color televisions reached a verbal agreement, its behavior belongs to the act of agent without authority. However, the big road industrial company accepts the price and two successive to 04 research institute to provide television behavior, can be regarded as JiangHong unauthorized agent act of recognition, so that JiangHong's unauthorized agent act of the legal effect of the right to act. In this case, the big road industrial company to Jiang Hong's behavior should bear civil liability. The company in the pipe lie "do not know this matter, has nothing to do with our company" is inconsistent with the facts. DALI should return the remaining payment to 04 Research Institute and compensate 04 Research Institute for part of the loss. After mediation, the two sides voluntarily reached the following agreement: DALI returned the balance of RMB 23,672 Yuan to 04 Research Institute before June 10, 1986, and compensated RMB 2,000 Yuan for the loss.
[Question]
The third person in this case Jiang Hong was not entrusted with the legal consequences of agency behavior why the defendant Dalu Industrial Company?
[Brief analysis]
The first paragraph of Article 66 of the General Principles of Civil Law stipulates that, "The act of not having the right of agency, exceeding the right of agency, or after the termination of the right of agency, the agent shall bear the civil liability only if it is recognized by the agent." In this case, the big road industrial company salesman Jiang Hong, not entrusted, without the consent of the unit leader, in the name of the unit and the 04 research institute orally entered into a contract for the purchase and sale of color television sets, and the agent of the big road industrial company to collect the payment in advance, its behavior belongs to the agent without the right to act. However, the company did not object to the payment of the goods into its own account, and delivered 21 sets of color television sets on two separate occasions, so that the contract has been partially fulfilled. The above behavior of dalu industrial company can be presumed to be the Jianghong agency behavior of the recognition, so that the original Jianghong agent without authority to become the right to act. The agent's recognition of the act has retroactive effect, that is, Jiang Hong's unauthorized agent behavior is recognized, the agent behavior from the beginning of the implementation of the legal effect of the right to act. The agent of dalu industrial company shall bear civil liability for Jiang Hong's behavior. Therefore, the trial court's determination and handling of the case is correct.
27, two or more people **** the same infringement caused damage to others, the infringer shall be jointly and severally liable.
[Case]
Plaintiff Yu Shuhua, female, 32 years old, self-employed.
Defendant Hu Chunxiang, female, 28 years old, self-employed.
Defendant Hu Qiuxiang, female, 18 years old, self-employed.
The above two defendants are related to sisters, are farmers in Huangxian city north township. 1987, the defendant Hu Chunxiang to the township to open the stall, its stall and the plaintiff Yu Shuhua set up a stall adjacent to the two had a conflict of stalls and solicitation. 1987 April 26, the defendant Hu Chunxiang because of the plaintiff Yu Shuhua's stall and Yu Shuhua quarrel, and then tore up. At this time, the defendant Hu Qiuxiang passing by, see this situation, then went up to "help", also with Yu Shuhua torn up. In the process of tearing, the two defendants with their hands, fists scratching the plaintiff YuShuHua face and nose, causing the plaintiff YuShuHua nasal fracture, cheek soft tissue contusion, spent 251.2 yuan medical expenses. Plaintiff YuShuHua sued to the county people's court, requesting the defendant HuChunXiang and HuQiuXiang compensation for all medical expenses.
The county people's court that: the defendant hu chunxiang for seizing the stall with the plaintiff two shuhua fight, the dispute is mainly responsible for the provocation; Defendant hu qiuxiang also participated in with the plaintiff's tearing, *** with the plaintiff caused by the injuries in the shuhua, for which the two defendants *** with the responsibility for compensation. Because the defendant hu qiu xiang has no economic income, according to article 130 of the general principles of civil law, "two or more people *** with the infringement of other people's damages, shall bear joint and several liability," the provisions of the judgment of the defendant hu chun xiang compensation for the plaintiff Yu shu hua's loss of 251.2 yuan of medical expenses.
[Question]
What is joint and several liability? In this case, the defendant Hu Chunxiang and Hu Qiuxiang **** the same caused the plaintiff Yu Shuhua injuries, the defendant Hu Chunxiang one to bear all the medical expenses is correct?
[Brief analysis]
Joint and several liability is a way of civil liability under the law, it refers to two or more debtors respectively on the *** with the cooperation of the creditor to assume full responsibility for the settlement. Its important feature is that any one of the cooperators is obliged to discharge the entire debt. The law provides that this form of civil liability is conducive to the protection of the interests of creditors. The plaintiff in this case, Yu Shuhua, suffered facial and nasal injuries caused by the defendants, Hu Chunxiang and Hu Qiuxiang, both of whom were * * * co-perpetrators. According to the provisions of article 130 of the general principles of civil law, hu chunxiang and hu qiuxiang should bear joint and several liability. In view of the defendant hu qiu xiang has no economic income, the court ruled that the plaintiff yu shuhua's loss of medical expenses by the defendant hu chunxiang is responsible for compensation is correct.
28, the victim for the occurrence of damage is also at fault, can reduce the civil liability of the person who caused the harm
[Case]
Plaintiff Liu Dahua, male, 26 years old, worker.
Defendant Zhang Ruohua, male, 24 years old, laborer.
Defendant Zhang Ruohua is a city 3523 factory car driver. January 21, 1987 after work, Zhang Ruohua for personal reasons without authorization to drive a "Datsun" car to the railway station. Ten o'clock in the evening, Zhang Ruohua driving back from the Yan station, traveling to the West Third Ring North Road, because of "sleepy", did not pay close attention to the road surface, at the same time, due to speeding, braking and dodging, with the road in violation of the cycling against the flow of Liu Dahua collision. Fortunately, in the collision Liu Dahua was thrown into the right side of the road ditch, only caused its right upper limb ulna and right lower limb ankle bone fracture and multiple soft tissue contusion. Defendant Zhang Ruohua immediately confined Liu Dahua to a nearby hospital for medical treatment, and was examined and treated at the hospital and discharged 15 days later. By early May 1987, Liu Dahua's injuries had completely healed. Because of the medical expenses and lost wages and other costs of compensation, liu dahua sued to a district people's court in the city, requesting the defendant zhang ruohua compensation for its joint part of the medical expenses of 456 yuan, compensation for its medical treatment during the three months of loss of wages and income of 420 yuan (the monthly basic salary of 70 yuan, will be the gold and so on 70 yuan), compensation for nutritional expenses, the loss of family members during the period of nursing wages of 300 yuan. And the defendant Zhang Ruohua that the plaintiff also has some responsibility for causing this accident, do not agree to pay all the compensation.
The case by the district people's court that the defendant Zhang Ruohua driving "sleepy", and speeding, violation of traffic rules and regulations on safe driving, the accident is mainly responsible. And the plaintiff Liu Dahua cycling violation, also violated the provisions of the traffic rules, the accident should bear some responsibility. According to the provisions of the general principles of civil law, the verdict is as follows: (a) the defendant Zhang Ruohua compensation for the plaintiff Liu Dahua medical expenses 456 yuan, lost wages 210 yuan, a total compensation of 675 yuan; (b) other damages borne by the plaintiff Liu Dahua himself.
After the judgment, the plaintiff Liu Dahua appealed. The court of second instance affirmed the judgment.
[Question]
Is the judgment in this case appropriate?
[Brief Analysis]
The principle of fault liability is the basic principle of attribution established by the General Principles of Civil Law. According to this principle, unless otherwise provided by law, for the occurrence of damage, only when the victim is at fault, the victim bears civil liability. If the victim is also at fault for the damage, the civil liability of the victimizer can be reduced. In this case, the defendant Zhang Ruohua in the driving in violation of the rules of driving caused the accident, its subjective fault. In this regard, the defendant Zhang Ruohua should be liable for compensation. Plaintiff Liu Dahua riding against the law, subjective fault. According to the provisions of the general principles of civil law, in determining civil liability, appropriate to reduce the civil liability of the defendant Zhang Ruohua. This treatment is correct.
29, causing damage are not at fault, should be based on the actual situation, by the parties to share civil liability
[Case]
Plaintiff Qian Cunzhu, male, 40 years old, farmers.
Defendant Yang Yang Xiong, male, 36 years old, farmer.
Plaintiff Qian Cunzhu and the defendant Yang Xiong is a county official village neighbors. 1986 September 6 morning, the defendant Yang Xiong saw the plaintiff Qian Cunzhu is moving right material to the home, ready to build a new house, take the initiative to launch their own handcart to help. In the afternoon, Yang Xiong pushed a cart of stone from the west mountain back to the village, when traveling to the west end of the village on the bridge, the bridge on the large stone slabs birch, Yang Xiong even into the car fell in the river, resulting in the lumbar vertebrae, the third and fourth fracture, resulting in paraplegia of the lower limbs. The next day, Yang Xiong to Qian Cunzhu borrowed 1500 yuan, to Beijing Jishuitan Hospital treatment, six months after the basic recovery. 1987 March 25, Yang Xiong from Beijing back to Guanshan Township. Qian Cunzhu went to visit Yang Xiong and mentioned the loan of 1500 yuan. Qian said that the construction of the house was about to start, and he was short of money and hoped that the loan could be returned as soon as possible. Yang Xiong, on the other hand, said, go to Beijing for treatment, only medical expenses spent more than 2700 yuan, now the family's life is tense, do not agree to Qian Cunzhu to return the money. Qian Cunzhu then to the county people's court, requiring Yang Xiong to repay the loan.
The county people's court hearing, the defendant Yang Xiong filed a counterclaim, the plaintiff Qian Cunzhu to bear its 1500 medical expenses. The court held that the defendant Yang Xiong in the initiative to help the plaintiff Qian Cunzhu carrying stone process, accidentally caused injury, the plaintiff Qian Cunzhu and the defendant Yang Xiong are not at fault. According to article 132 of the general principles of civil law, "the parties are not at fault for causing damage, according to the actual situation, the parties to share civil liability", according to the plaintiff and the defendant both sides of the economic situation, after mediation is invalid, the court ruled as follows: (a) the plaintiff Qian Cunzhu bear the defendant Yang Xiong medical expenses of 1500 yuan: (B) the above money to the plaintiff Qian Cunzhu lent to the defendant Yang Xiong money offset.
[Question]
Is the plaintiff Qian Cunzhu responsible for the medical expenses of the defendant Yang Xiong? Why?
[Brief analysis]
Article 132 of the General Principles of Civil Law stipulates, "If none of the parties concerned is at fault for causing the damage, the civil liability may be shared by the parties concerned according to the actual situation." This is the socialist civil law principle of fairness and embodiment. It is conducive to solving the actual problem of personal injury or property damage dispute cases which are not caused by the subjective fault of the parties. In this case, the defendant Yang Xiong in the process of helping the plaintiff Qian Cunzhu to carry stone materials, due to the movement of the stone plate on the bridge, Yang Xiong fell into the river, resulting in injury. Plaintiff Qian Cunzhu and defendant Yang Xiong are not at fault for the occurrence of the damage. However, the plaintiff was the victim and the defendant was the beneficiary. Accordingly, the court according to both sides of the economic situation, according to the law, the plaintiff and the defendant to share the responsibility is correct, reflecting the spirit of the provisions of the general principles of civil law.
30, the people's court shall determine the tortfeasor according to the specific circumstances of the civil liability
[Case]
Plaintiff Fengkai, male, 28 years old, worker.
Defendant Wang Qiang, male, 52 years old, farmer.
Plaintiff Fengkai and Defendant Wang Qiang were neighbors. on April 24, 1986, Wang Qiang accidentally smashed the utility wires while demolishing an old house he had purchased from a development company. Wang Qiang found Zhao Jun, a farmer from his village, and asked him to help connect the wires. Zhao Jun does not understand the electrician technology, mistakenly connected to the firewire and ground together, resulting in the use of two years of Fenkai a Shanghai brand fourteen Yingyu color television tubes, capacitors and other components burned out. Shanghai brand color television set is assembled with imported loose parts, its spare parts domestic supply is small, Fengkai can not buy imported capacitors, so Wang Qiang asked for compensation for a new color television set of the same. Wang Qiang only agreed to try to Fengkai fix the TV and bear all the repair costs. Negotiation failed, Fengkai to the court. The court held that: Wang Qiang find Zhao Jun wiring, Zhao is for the benefit of the king's color television set damaged, Wang Qiang Fengkai's loss should bear full responsibility. By the relevant departments of the test, fengkai's television set just picture tube and capacitor certain parts burnt, the other parts of the whole machine is not damaged, replace the damaged parts, can be completely normal use. Although the machine for the assembly of imported parts, but the bad parts of domestic products can be replaced, as for the loss of the value of the whole machine, can be compensated by Wang Qiang, FengKai insisted on Wang Qiang compensation for their own TV set is obviously too high, taking into account the performance of the domestic parts of the performance of the same type of products with the performance of the difference between foreign countries, Wang Qiang should also bear the corresponding losses. After mediation, the two sides sharpened the agreement: (a) Wang Qiang is responsible for the open Shanghai brand fourteen Yingyu color TV repair, repair costs borne by Wang Qiang: (b) such as the replacement of domestic parts within one year, Wang Qiang is responsible for the replacement of new parts and bear the required costs.
[Question]
What is the proper way for the defendant to assume civil liability in this case?
[Brief analysis]
Repair is the repair of damaged property, which is often used in judicial practice to assume civil liability. Article 134 of the general principles of the civil law of this way of assuming civil liability is clearly stipulated. When adjudicating disputes arising from property damage, the people's court shall consider whether the damaged item can be repaired without affecting the value of the original item. If after repair and can continue to use, and does not affect the use of the value of the original object, first of all should take the way of repair, repair costs and damaged objects due to the value of the damage reduced, should be compensated by the responsible person. In this case, the defendant Wang Qiang is not intentionally caused the damage of fenkai television set, and the damaged parts replacement does not affect the use of television set. In this case, fengkai just can not buy imported parts and insisted on Wang Qiang to replace a new color television set, the request is unreasonable, the court did not support the law is correct.