Respondent (respondent): Shenzhen XXXX Co., Ltd, domicile: Guangdong Province, XXXXXXXXXXXXX, legal representative: XXX, chairman of the company.
Contact Person: XXX, Position: Shenzhen An XXXX XXXX Co., Ltd XX Manager, Contact Tel: XXXXXXXXXXXXXXXXX
Respondent (application for reexamination): Zhanyi XXXX Co., Ltd, Domicile: Zhanyi County, Yunnan Province XXXX, Legal Representative: XXX, Chairman of the Board of Directors of the company.
The Respondent received by mail from your court on April 28, 2014, the application and related information regarding the Respondent's filing of a retrial of (20XX) Qu Zhong Min Jian Zi No. XXXX. The Respondent now makes the following reply to the Respondent's request for retrial and the reasons therefor:
1. Substantively, the Court of Second Instance found the facts of the case to be clear, the evidence to be conclusive, and the applicable law to be correct.
1, on the issue of whether the equipment is power saving
In the case of the first trial, the respondent submitted by the respondent's signature and seal confirmation of the acceptance report, as well as the respondent's company's various types of qualifications, quality certificates, the National Center for Quality Supervision and Inspection of Electric Control Equipment issued by the inspection report and other evidence, which is sufficient to prove that the equipment meets the quality standards and power-saving requirements. The respondent has been arguing that the equipment in question does not have the function of power saving, which is a sophistry under the circumstance of not being able to provide any evidence. For the respondent argued that the equipment has been unused because the equipment does not have the effect of power saving, the respondent strongly rejected, the reason is that the respondent whether in the case of the first trial or the second trial, failed to provide sufficient evidence to prove that the equipment has been unused, but only provided a few photos of the equipment, the source of the photos is unknown, and can not indicate whether the equipment is in use, and the respondent has not been able to prove that the equipment is in use. Respondents never recognized the authenticity of the photographs and the facts supporting them during the opening cross-examination, and the court did not adopt Respondents' claim that the equipment was not power-saving based on Respondents' failure to provide legitimate and effective rebuttal evidence. Therefore, in the case of the respondent to provide sufficient evidence to prove that the equipment meets the quality standards and power saving
power requirements, and the respondent failed to provide legal and effective rebuttal evidence, according to the rules of evidence and the law, the respondent's claim that the equipment does not have the function of power saving is not established according to law.
2, on the issue of power saving rate
From the parties signed the "equipment leasing contract" and "saving electricity and payment agreement", the two sides of the power-saving rate of measurement and calculation method are clearly agreed, that is, before the installation of the equipment to measure the original equipment before the power consumption, and three-month average for the power-saving before the calculation of the basis. At the same time, before signing the contract, both parties **** measured the average hourly estimated power consumption during the operation of the equipment as the basis for estimating the power saving rate. After the installation of the equipment, both parties compare the power consumption of the original equipment during operation with the power consumption after the installation of the power-saving equipment, and calculate the actual power-saving rate according to the agreed accounting method.
The calculation of this rate was determined by both parties **** with the negotiation, the respondent to the parties agreed on the determination of the rate of power saving and the settlement method of charging the power saving fee is not impossible. Moreover, in the Agreement on Electricity Savings and Payment Methods signed by the parties, the parties confirmed in writing the amount of monthly electricity savings (i.e., $157,250.16 per month) calculated in accordance with the calculation method agreed upon in the Equipment Lease Contract, and changed the said amount of monthly electricity savings to $102,600 in the Agreement. Monthly power saving amount calculated on the basis of 102,600 yuan is the final confirmation of the settlement between the two parties, and the respondent in the process of recovery of power saving fee by means of litigation on a number of occasions, are requested on the basis of this amount.
From the above, it can be seen that the determination and calculation of electricity saving fee is not unilaterally proposed by the respondent, but after both sides of the equal consultation and black and white written agreement agreed down. For the two sides have been on the settlement of power-saving fee agreement, the respondent and argued that the equipment does not have the power-saving function and power-saving fee accounting objections, the respondent can only think that the respondent is in the nonsense. The respondent has disregarded the agreement of both the parties with the intention of delaying the payment of power saving charges.
At the same time, some of the respondent's abnormal behavior has been also quite puzzled by the respondent, namely: why the respondent only objected to this case, the respondent in (20XX) Zhan Min Chu Zi XXX and (20XX) Zhan Min Chu Zi XX, why did not to the respondent to raise the equipment whether the power saving and how much the power saving `objection? Instead, it paid all the outstanding electricity saving charges to the Respondent as agreed in the mediation agreement? If the equipment in question really did not have the function of saving electricity and could not achieve the effect of saving electricity, how was it possible for the respondent to pay the electricity saving charges to the respondent?
In addition, the two sides in (20XX) Quzhong Minchu word No. XX case, also on the payment of electricity saving
reached a mediation agreement, and by the Qujing Intermediate People's Court issued a mediation, the respondent not only paid part of the money to the respondent in accordance with the agreement, but also did not raise the issue of the equipment and the effect of power saving. Question: If the respondent really think that the equipment does not have the function of saving electricity and can not achieve the effect of saving electricity, then the respondent in the previous case to apply for retrial at the same time, will be in the next case with the respondent to reach a mediation agreement and payment? Obviously not.
The respondent argued that unless the respondent is a fool, it is unlikely that the respondent would have voluntarily paid the respondent for power saving by way of mediation repeatedly knowing that the equipment could not save power and could not save power, but the respondent clearly emphasized in the application that it is not a fool. Therefore, the objections raised by the respondents on whether the equipment in question is saving electricity and how much it is saving electricity in this case is clearly contrary to the normal logic and common sense of the society, and the respondents must have other plans.
Secondly, procedurally, the Court of Second Instance did not violate any of the statutory procedures.
The respondent mentioned in the application that the actual trial judge was not (20XX) Quzhong Minchu Zi No. XX decision XX judge, for which, in fact, the respondent did not notice that the Qujing Intermediate People's Court in the trial after the issuance of a corrective ruling, that is, (20XX) Quzhong Minchu Zi civil ruling No. XXXX. The ruling for the judgment will be the presiding judge was mistakenly written as XX for correction, correction of the presiding judge for XX.
The respondent believes that the judge is also a person, is a person may be wrong, the law also gives the judiciary the right to correct the error and the opportunity to do so. The court of second instance to make corrections to its errors in writing is in full compliance with the law, but the respondent ignored the fact that (20XX1) QuZhongMinJunZi civil verdict No. XXXX to the trial judge to make corrections to the errors in writing, deliberately take the court of second instance in the judgment of the errors in writing, and attempt to generalize, intending to confuse the judge of the reexamination, and to increase the evidence of the reexamination of the case, and to achieve the purpose of delaying the payment of the amount of money.
Third, the respondent in the application, can be described as emotion, reason, law and use, seems to be quite a few reasons, but in fact, in the sophistry. Respondent in the elaboration of reasons at the same time, talk about ? Free mind? and other legal knowledge, trying to impress the retrial judge at different levels to achieve its goal. According to the Respondent, no matter how the Respondent sensationalized and reasoned, it ignored the most fundamental issue that the Judge had to consider in deciding the case, i.e., the issue of evidence. Respondent only submitted a few mediation and judgment, it is taken for granted that the trial court's decision can be easily overturned, the respondent to the court of this distrust is in fact their own lack of confidence. Many mediation plus many judgment results all the same, has fully explained the facts of the case has been very
clear, from the judgment can also be seen, there is no so-called ? Whether to save electricity and how much? There is no dispute of fact as to whether or not there is a saving in electricity and how much? Moreover, the litigation is not the same court, the same judge, but by different levels of the court of different judges to form a different panel of the hearing, the results of the hearing all the same has been sufficient to prove that the case itself does not exist in the determination of the facts and the application of the law any problem.
Fourth, because in (20XX) Quzhong Minchu word No. XX mediation, the two sides of the "equipment leasing contract" and "saving electricity and payment agreement" for the agreement to be lifted, and the case was dealt with. Therefore, the Respondent believes that the retrial of this case is no longer necessary, and the Respondent's application for retrial of this case is purely a waste of judicial resources and an artificial creation of social disharmony. In view of the fact that the Respondent has failed to fulfill the payment obligation set out in the mediation letter (20XX) Quzhong Minchu Zi No. XX, the Respondent requests that the Court, after ascertaining the facts of the case, urge the Respondent to fulfill the obligation to pay the balance of the payment according to the law.
In summary, in the respondent did not put forward new evidence, and the original judgment of the facts are clear, the evidence is solid, the applicable law is correct, and there is no violation of the legal procedures, the respondent proposed to your court to the case of the retrial obviously does not meet the conditions prescribed by the law, and I request that your court in the investigation of the facts, according to law, dismissed the application for retrial, in order to safeguard the legitimate rights and interests of the respondent.
Hereby
Yunnan Provincial Higher People's Court
Respondent: Shenzhen XXXX Co., Ltd. 2014 X X month X
Civil second instance reply brief IIRespondent Bijie Minji Sand Factory, domicile: Bijie City, Qixingguan District, Daxinqiao Office.
Legal representative Wang Yaqin.
Responsible person Ye Hong (temporary responsible person), Tel: 13765870444.
Respondent Zhao Heping, male, Han nationality, born on August 10, 1990, Dafang County, Guizhou Province, residing in Dafang County, Dafang County, Yuchong Township, Yousuanhe Village, Daitu Group, ID No. 522422199008106016.
Respondent Zhao Heping for Unsatisfied with the Bijie City People's Court on December 16, 2011 made the (2011) Qian Bi Min Chu Zi No. 1816 civil judgment appeal, the respondent Bijie Citizen Ji Sand Factory now according to the law to reply as follows:
Respondent Bijie Citizen Ji Sand Factory that the original judgment to determine the facts are clear, the evidence is indeed sufficient, the trial procedure is legal. The original judgment is only the application of the law is wrong, ultimately leading to the trial result is wrong, I implore the court of second instance in accordance with the respondent Bijie citizen Ji sand factory appeal request for re-sentencing, dismissed the respondent Zhao Heping's unreasonable appeal request.
First, on the respondent Zhao Heping's salary calculation
The respondent Zhao Heping in October 19, 2009 to the respondent Bijie Minjie
sand factory work, the same year on October 12, was injured, the respondent Zhao Heping from the respondent
Bijie Minjie sand factory to work to the period of the injury is less than a month time. The two sides did not sign a written contract, only verbal agreement, for the respondent Zhao Heping's salary did not agree to 2500 yuan per month, just agreed to let the respondent Zhao Heping work trial for a month, after the trial period to see the respondent Zhao Heping's work, and then talk about whether to continue to work and work wages, as for the respondent Zhao Heping's living expenses during the trial period can be by the first respondents As for the living expenses of Respondent Zhao Heping during the probationary period, Respondent could first borrow money from Bijie Minji Sand Factory. Therefore, Respondent Zhao Heping's statement in the appeal that Respondent Bijie Municipal Ji Sand Factory promised to pay him a monthly salary of RMB 2,500 was purely groundless, and the request for Respondent Bijie Municipal Ji Sand Factory to prove that his monthly salary was not RMB 2,500 was also purely groundless. Respondent Bijie Civic Ji Sand Factory believed that the calculation of Respondent Zhao Heping's salary in this case would be fine as long as it was not lower than the minimum wage standard of Bijie City at the time of his injury, and that from the perspective of protecting the interests of the Plaintiff, Respondent Zhao Heping, and humanistic care, Respondent Bijie Civic Ji Sand Factory agreed to the Court of the First Instance's decision in accordance with the provisions of Article 24 of "Measures for Implementing the Regulations on Work Injury Insurance of Guizhou Province". The personal salary of the injured worker is implemented in accordance with the provisions of Article 61 of the Regulations. If the injured worker's salary or actual working time before injury is more than 6 months and less than 12 months, the salary shall be calculated according to the salary of the worker's salary or the actual average monthly salary, but the minimum shall not be less than 60% of the average monthly salary of the workers of the co-ordinated area; if it is less than 6 months, the salary shall be calculated according to 60% of the average monthly salary of the workers of the co-ordinated area of the previous year. The provisions of the judgment found that the respondent Zhao Heping wages in accordance with the Guizhou Province in 2010 announced the 2009 Bijie average monthly salary of employees (26445/12) 60% of the base calculation has been enough to take care of the respondent Zhao Heping.
Second, this case should be applied to the revision of the previous "Work Injury Insurance Regulations" and "Guizhou Province, the implementation of ﹤ Work Injury Insurance Regulations ﹥ Measures" relevant provisions of the calculation of the respondent Zhao Heping's compensation for work-related injuries
The two sides of this case is essentially a labor and employment relationship, due to the respondent Bijie City, the sand factory of the legal awareness of the people to talk about the thin, so that this case is recognized as a work-related injury cases. In the case of recognizing this case as a work injury case. First of all, Respondent Bijie Citizen Ji Sand Factory believes that the Decision of the State Council on Amending the Regulations on Work-Related Injury Insurance, which was implemented on January 1, 2011 ? This Decision shall come into force on January 1, 2011.? After the implementation of these Regulations the employees who were injured in accidents or suffered from occupational diseases before the implementation of this Decision have not yet completed the determination of work-related injuries in accordance with the provisions of this Decision.? only provides that the determination of work injury applies to the new "Work Injury Insurance Regulations", and does not provide that the calculation of compensation standards for work injury insurance benefits for injured workers applies to the revised new "Work Injury Insurance Regulations", while the old "Work Injury Insurance Regulations" and the standards for the calculation of compensation standards for work injury insurance benefits for injured workers are also clear. Therefore, the court of first instance of the respondent Zhao Heping work injury treatment compensation standard judgment to apply the January 1, 2011 implementation of
Work Injury Insurance Regulations (Article 36) provides for the payment of the respondent Zhao Heping 16 months of one-time disability benefit is the application of the law is wrong. In this case, Respondent Zhao Heping went to work at Respondent Bijie Minji Sand Factory on October 19, 2009, and was injured on October 12 of the same year. According to the principle of non-retroactivity of the law, the compensation for the injury of Respondent Zhao Heping should be governed by the old Work Injury Insurance Regulations (Article 34) at the time of his injury, which means that Respondent Bijie Minji Sand Factory should be awarded a lump-sum disability benefit of 14 months to pay Respondent Zhao Heping a lump-sum disability benefit of 16 months. Peace 14 months one-time disability benefit.
Secondly, the "Opinions of Guizhou Province on the Implementation of the Newly Revised 'Regulations on Work Injury Insurance'", which has been implemented since July 6, 2011, also does not explicitly stipulate that the calculation of the compensation standard for the treatment of work-related injuries has a retrospective effect, and that this Opinion applies to the compensation for work-related injuries that occurred before its entry into force, so the first-instance judgment in this case is to determine that the one-off disability benefit for the respondent Zhao Heping's sixth-degree disability should be paid to him. The compensation for the medical benefit for work injury and the employment benefit for disability was calculated in accordance with Article 16 of the Measures for the Implementation of the Regulations on Work Injury Insurance in Guizhou Province of July 1, 2004, which stipulates that the sum of the average monthly salary of the employees in Bijie area in the previous year at the time of the injury [i.e., according to the average monthly salary of the employees in Bijie area for the year of 2009 published by the Guizhou Province in 2010 (26,445/12) RMB for 50 months] is correct, instead of the calculation of the average monthly salary of the workers of Bijie area for 50 months. months] is correct, rather than the Respondent Zhao Heping's appeal that the provisions of the Opinions of Guizhou Province on the Implementation of the Newly Revised "Regulations on Work-Related Injury Insurance", which were implemented on July 6, 2011, should be applied to compensate for the payment of the Respondent Zhao Heping's 52-month lump-sum work-related injury medical benefit and disability employment benefit, and that the Respondent Zhao Heping should be compensated for his injury in accordance with the average monthly salary of the employees of the Bijie area in the 2010 fiscal year, which was published in 2011 2335.60 (28028/12) yuan calculation.
Finally, we from the respondent Zhao Heping work injury time October 12, 2009, plus the respondent Zhao Heping injury hospitalization of 46 days, plus the identification of 8 months off work with pay period, the respondent Zhao Heping is in fact July 30, 2010 (or so) on the restoration of the ability to work, but respondent Zhao Heping restored the ability to work after has been However, after he regained his labor capacity, Respondent Zhao Heping did not continue to work at Respondent Bijie Minjisand Factory, which means that the labor relationship between Respondent Zhao Heping and Respondent Bijie Minjisand Factory was actually terminated after July 30, 2010. Therefore, in accordance with the time when both parties actually terminated their labor relationship (i.e., July 30, 2010), the calculation of the standard of compensation for the treatment of work injury of the judgment of the present case can only be applied to the compensation standard of Respondent Zhao Heping. The old Regulations on Work Injury Insurance of 2004 and the Measures for the Implementation of the Regulations on Work Injury Insurance of Guizhou Province apply the average monthly salary of the employees in Bijie of 2009, which is 2203.75 (26445/12) yuan, to calculate the 50-month lump-sum medical benefits for the injury and the employment benefits for the disability of the Respondent, Mr. Zhao Heping.
In summary, the original judgment is only the application of the law is wrong, resulting in the trial results of the wrong, not
There is the respondent Zhao Heping appeal claimed that the determination of the facts are not clear, the trial procedure is illegal and other facts. Therefore, I implore the court of second instance in accordance with the respondent Bijie Citizen Ji Sand Factory appeal request for a change of judgment, dismissed the respondent Zhao Heping's unreasonable appeal request.
The pleadings
Bijie Intermediate People's Court
Respondent: Respondent Bijie Mingji Sand Factory
February 3, 2000