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a Supreme Court Civil difficulties in the current civil trial and consolidate the views of the Supreme People
data sources and the preparation of a court's , the effectiveness of housing tenant right of first refusal
theorists or practitioners of the different points of view: first view: the people's court decision directly to the lessor and the lessee's sales contract between the third the price determined by buy houses. The second point: the court quashing only between the lessor and the third contract for the sale. The third point: the parties made the contract null and void the action of confirmation, the people's court can either make a decision at the request of the parties, can also be based on right of formation theory, according to the law may directly support claims of buying a house.
Supreme Court of the people of a study of the issue, the formation of two views: the majority of people believe that under the existing laws, regulations and judicial interpretation of the provisions, the lessee's right of first refusal on the rental housing is a quasi-property nature of civil rights, the effectiveness of the representation of property rights should be protected by the law. will be interpreted as the formation of the right of first refusal, lack of legal basis. It is only priority the rights of parties, rather than to ensure that the right to buy. Alignment property protection and ownership of protection must be different. ownership is an absolute right, everyone selling their property, should respect their right to freedom of contract, not too much interference, therefore, the lessee can not directly purchase housing advocates based on the conditions of the third person to obtain housing, can only confirm that all requests entered into the contract for the sale and the third person is invalid. by invalid complaints, according to the principles of trade does not break lease the lessee's interest as usual can be duly protected. For the view, the tenant right of first refusal is for all the right to sell restricted rental housing, priority can not be understood as the right of priority in contracting to study its contents, priority should include the right to buy, or priority of no practical significance, not substantially reflect the protection of the rights of the lessee. In addition, according to owner and tenant advocates signed the contract for the sale agreement the third person to obtain housing conditions, the court verdict in the sentencing owner and does not require third party entered into contract for the sale, It all changed with the third contract for the sale of the subject, methods and decisions that the referee will not be the implementation of legal obstacles. Therefore, the lessee may request the basis for all sales contracts signed with the third condition obtain housing, the court may sentence the request accordingly.
2, submitted, the application and limitation issues
submitted on the buyer at the agreed date of expiry of the seller submitted the request more than two years is over litigation the period of limitation issues, there are two views: The first one, the buyer claims the right to request the seller to deliver housing in the two-year statute of limitations should be exercised during the period, more than two years, the limitation of action requests submitted to the seller, because indolent in exercising its right to limitation of action after the state lost the right win. a second opinion, submitted to the buyer in the agreed period of more than two years from the date of expiry of the request submitted to the seller can not be recognized as more than simply proceedings time, but should be submitted at the agreed time distinguishing whether the seller has submitted to the respective processing conditions.
buyer in the contract on the expiry of more than two years from the date of the request for change of ownership registration of the seller, is over period of limitation issues, there are two views: The first one, and the seller assume the primary benefit of the obligation to transfer the possession of houses, more importantly, transfer of housing ownership. If the seller to the buyer only to fulfill the delivery of housing obligations, not in the expiration of the period stipulated in the contract for housing of all warrants, the Department of Housing did not transfer ownership to fulfill this most important obligation of the main benefits has been a breach of contract, statute of limitations period should be starting. so the buyer the seller is not in breach of contract within two years from the date of the request for house ownership, because over the loss of the limitation of action in favor of the right. a second opinion, housing has been delivered, the buyer at the agreed deadline for house ownership more than two years from the date of the request Seller warrants its handling of housing for all should be supported.
Supreme Court preference for a public opinion: First, real estate sales contracts agreed upon the expiration of housing delivered by the seller, the buyer may request the seller under the contract delivery of housing. The creditor claims are claims, should be applied to delivery date of expiry; if the delivery of housing does not have the statutory conditions, the limitation of action from the delivery of housing conditions with the statutory date. Second, the seller has housing delivery to the buyer, also occupied housing has been achieved, the buyer requests the seller transfers home ownership, home ownership for the right to request registration of the nature of property rights, limitation of actions shall not apply.
3, the owners have the proceedings whether the Commission Subject Qualification
theorists or practitioners of the different points of view: first view: the subject of proceedings the owners do not have the qualifications committee, could not sue in their own name. The second point: the owners can be the subject of proceedings in the Commission proceedings, either as the plaintiff sued the defendant can also be used as the respondent. The third point: Owners Committee has a general, abstract meaning litigants ability to become the subject of proceedings, but only as a principle, the plaintiff sued the defendant can not be, because it does not ability of property and liability responsibilities.
a Supreme Court that the people: the owners of the Committee established by law within the scope of their duties by the owners on behalf of the General Assembly authorized the right to property-management-related, involving matters of public interest of all owners , the property company for the defendant to file a lawsuit in the people's court. nothing to do with the property management, individual or part of the owners of the issues, owners of the Committee have no right to file a lawsuit in the people's court.
4, should be returned to the buyer in good faith sell Housing costs were the criterion used
theorists or practitioners of the different points of view: first view: Housing standards should refer to user fees through lots of similar housing rent calculation. The second point: According to the principles of the contract is invalid, should be based on actual depreciation of the useful life of the house as a buyer to return the compensation for housing restitution, agreed that housing price d t the actual use of land-use life years, or to assess the housing depreciation. The third point: the first One view was adopted with a second opinion is too high or too low, unfair, rent and housing could be considered the average depreciation.
a Supreme Court opinions people: good buyer should be returned user fees to the seller's standard housing, the Supreme Court on November 30, 2003 to (2003) Civil No. 13 for a word he Liaoning Provincial Higher People's Court a reply to consult the views have been clear. The letter text as follows: Liaoning Provincial Higher People's Court: Your responsibility for real estate sales contract is confirmed as invalid because the seller after the principles of the contract shall be valid for processing. on the goodwill should be returned to the seller the buyer's housing standards for user fees, because the buyer in good faith when signing the contract, thus there should be a buyer in the contract in the meaning of that standard. In other words, should the buyer and the seller agreed to the contract price divided by the total housing design life, and then multiplied by the buyer to actually use the premises number of years as the price obtained gains from the buyer back to the seller.
5, the causes of traffic accidents who should bear the burden of proof issue
theorists or practitioners of the different points of view: The first view: road traffic accidents is the public security organs according to law recognized a specific administrative act, with the Administrative Lawsuit belongs to the scope of judicial review of administrative proceedings. This is the influential point of view. The second point of view: Responsibility accident, not the specific administrative act, Confirmation is the administrative and clerical responsibilities. The third point: identify the nature of the traffic accident liability should be based on the nature of the accident: If minor traffic accidents in general, it is the Chief Responsibility ; if the crime is the traffic accident, you have identified the nature of criminal responsibility. The fourth point: traffic accident liability of the but to identify the premise and basis of liability in itself is not the same as the administrative responsibility of legal liability, criminal and civil liability. traffic accident liability is an administrative proof that the perpetrator identified, does not have Administrative Lawsuit. fifth point of view : Accident Responsibility is the expert conclusions, not the specific administrative act.
a Supreme Court opinions people: (1) issued by the traffic administration department, One of the important evidence in cases such as one or both parties to the absence of contrary evidence or sufficient to overturn the conclusions of reason, damages caused by the case, the parties should be based on party or both parties in civil proceedings to
theorists or practitioners of the different points of view: first view: a lawsuit before the facts have been confirmed by the effective decision, the parties do not need to prove this. In the decision revoked by the legal process before the law recognized the fact that fact, that fact should not be a new identification. The second point: the former ruling although the civil litigation judgments were found in the grounds, but not ruling on matters identified in the dispositif. the parties to the contrary evidence is sufficient to reverse the previously recognized the fact that, should the People's Court confirmed in the present case to re-examine the facts prevail.
Supreme Court of the people of a tendentious comments: For the entry into force of the facts identified in the referee should not be understood from the perspective of res judicata, and should force the referee proved the effectiveness of the angle of analysis. Where the people's court force the referee determined by the fact that the exemption after the appeal the parties the burden of proof of effectiveness. In the latter v. party has evidence to the contrary is enough to reverse the situation, after the Court of Appeal may make a right to confirm the facts, without having to wait for decision after Qian v. after retrial procedure to change the line identified.
7, liability insurance litigation status were determined in trial practice issues
there are mainly two different perspectives: the first kinds of view: who should be listed as the third party liability insurance, and shall not be included as defendants. The second point: the victim of a violation, that the infringer has the liability insurance, tort damages were lazy to fulfill obligations , the victim can not sue the infringer (the insured) under the direct prosecution of the case of liability insurance, or both prosecution and tort liability insurance for people who will be responsible insurers as defendants.
a Supreme Court Civil tendentious comments: liability insurance contract on the third party claim victims on how to identify problems, in principle, that the injured third party in accordance with the provisions of the contract and the legal benefits directly to request compensation insurer. Another added that, (1 ) in the injured third person pursuant to the contract or the law, to exercise directly to the insurance claim damages, when it will be insured as a defendant, should be insured as a defendant, it will not only help identify the facts of the case will also help the insurer to exercise its right of defense and to protect their legitimate rights and interests. (2) the insured and the third person for damages litigation, the court notified the insurer to participate in the proceedings, the insurer should have independent legal status The third claim.
8, by the relatives involved in the mediation of civil disputes the compensation agreement signed on behalf of the parties constitutes a public agency by estoppel issue
Supreme Court tendentious comments: For the generation of the compensation agreement signed nature, most people believe that if the parties in dispute with full civil capacity, in the absence of consent, there is no evidence that my consent, in addition to the spouse sign the agreement form on behalf of the agency by estoppel, other relatives signed the agreement on behalf of does not constitute an apparent agency. However, from the trial of policy, does not constitute an apparent agency agreement, and do not easily found to be invalid, but should try to find another legal basis to maintain the agreement. so as to not violate the law to safeguard the authority of law, and disputes can be handled properly to maintain the social stability and harmony. Of course, if the agreement meet the Lee casino operations in the WEI consumer dispute with the Wu and Wu was beaten. In the process, the security of Casino did not have any persuasion to stop, and no timely alarm. Lee was rushed to hospital out of danger after emergency treatment, but treatment costs spending two million dollars. the problems caused by the above case is: if the victim was from the premises against the third person, the operator should not assume the liability? such as bear, then the nature and scope of civil liability determined? operator responsibility and whether the act can harm the implementation of the recovery of the third person?
by the Supreme Court of the people for a collective discussion to form a consensus that: in the accommodation , catering, entertainment and other business activities of the operators, bear safety obligations. in the business premises, damage caused by the results of the third party intervention occurs, the operator at fault (Safety Protection Obligor) shall bear the corresponding liability . However, in determining the scope of accountability, not prone to the entire class to liability for damages, breach of duty should be considered to prevent or stop people on the scope of damage. operators bear the liability of the supplementary compensation is a responsibility for acts by the implementation of harm to third persons responsible are final, so the operators bear the additional liability, you can recover to the third person.
10, where one of the spouses issued buyout business models are jointly owned property belonging to the people of a Supreme Court issues
tendentious opinions: In divorce cases dealing with issues related to buyout money, you can refer to Supreme Court (b) split distributed to military personnel involved in the demobilization under the name of fees, charges a one-time costs of their own jobs, marriage relationship of husband and wife in years multiplied by the average amount received jointly owned property. The term annual average, refers to the release to the military under the name of the specific number of years the total cost divided equally by the amount reached. The specific number of years for the average life expectancy of 70 years and soldiers joined the army the difference between actual age. whether the request for compensation constitutes a counter-question
Trial Practice different perspectives: The first view: divorce claim for damages to some extent the division of property may request the annexation of the divorce, the divorce can be conditional claim for damages as a counterclaim that the conditions attached to divorce as if the dissolution of marriage, the divorce request constitutes a counterclaim for damages. If the parties do not divorce, no conditions attached to success, then the divorce does not constitute a counter-claim for damages. The second point: the divorce request and compensation in divorce request is not one to one relationship, can not offset each other, constitute a claim for damages if the counterclaim for divorce, then there exists an obstacle in theory, because it can not be divorced from the establishment of the premise alone.
a Supreme People Court bias opinion: the defendant filed for divorce as the innocent party does not constitute a counter-claim for damages, but a merger of the claim.
12, there is the fact of infringement, but the amount of tort damages can not determine the size or difficult to determine, How to deal with the problem
Trial Practice different perspectives: The first view: the plaintiff's claim should be dismissed. the grounds that although the plaintiff can prove the existence of damage, but can not prove that the size and scope of the specific harm, the burden of proof should be can not be adverse consequences. The second view: the discretion to sentence the defendant appropriate compensation. The reason is not the defendant was ordered to take some liability, it can not embody the principle of fairness is not conducive to protecting the interests of the victims. The third point of view: should the court judge under investigation and the court outcome of the debate, through free of evidence, where appropriate, to determine the amount of compensation the defendant.
Supreme Court preference for a public opinion: Based on the above aspects of the consideration of a Supreme Court focused on the people strength of such problems were studied. In the study, there is a point of view, the use of the principle of free evaluation of evidence is difficult to determine the fact of infringement is limited to the situation. If the fact of infringement has been determined, but the amount of compensation is difficult to determine infringement, then the judge discretion of the problem. After discussion, the majority of people believe that freedom and discretion of evidence are closely linked, there is no restriction in specific areas; the principle of free evaluation of evidence for determining the fact of infringement, and infringement and other fields to determine the amount of compensation , and not just for the fact of infringement of the identified areas. For the principle of free evaluation of evidence can be applied to determine the amount of tort liability issues, we agreed in principle to a number of High Court Civil Court's preference for a view that has been able to identify the existence of damage , but is still difficult to determine the specific amount or can not be determined, the judge can combine a number of cases of circumstantial evidence and other facts, follow the professional ethics of judges, the use of logical reasoning and everyday life experiences, the freedom of evidence, proper identification of the infringer shall bear The amount of compensation. However, this rule applies only to personal rights and property rights violations in civil cases, does not apply to contract disputes and other civil cases.
13, farmer for self-built housing is construction companies and farmers in 1998, Wang signed a construction contract, agreed by the construction company for the construction of brick and wood two-story residential buildings Wang a; construction companies according to the drawings, estimated that 125 square meters floor area; completed, press the standard calculation of the actual measurement, the unit cost of 380 yuan / square meter. Construction Company completed on schedule and to determine the total project cost. the construction period, Wang paid part of the project funds, after the completion of actual possession, the use of the building, but the payments . construction company taken to court, asking Wang to pay the remaining for projects. presented the question: construction contract to others, whether they are self? the distinction between high and low standards? farmers contracted residential building construction enterprises, the nature of the contract determined? are applicable, The first view: the peasants to build houses, as long as no more than four, could not high-rise buildings, either built or contracted to another self, belongs to should not be regarded as self-built low-rise buildings. on the nature of the contract, a view that such contract contract contract; another opinion, such contract is a construction project contract.
Supreme Court of the people of a tendency to observations: Farmers will be contracted out to individual craftsmen engineering construction, the building acts by . farmers and construction enterprises or individual artisans in construction contracts were entered into construction contracts.
14, contributory negligence cause damage to the accountability
two vehicle traffic accident caused by pedestrian traffic violation has been damaged all because of a motor vehicle accident is a result of the death of the victim (pedestrian) made it clear that the deceased's heirs waiver liability, requires only one compensation for the loss of all motor vehicles, shall we do? first view: common violation due to the behavior of traffic accidents caused by moving pedestrians are violated, the two motor vehicles per capita is the virulence of all people, should be jointly and severally liable. The victim made it clear that prosecution is only part of the infringer to give up on other people's right to litigate infringement Some people think that the victim made it clear that the deceased's heirs abandon liable jointly and severally liable only one prosecution of a vehicle owner liable, in accordance with the are liable to pay off all debt obligations, even if the victim made it clear that giving up other joint and several liability shall bear the liability, should an order to compensate the damage caused by total loss. was also suggested that joint tort cause damage to the victim some people only sue the infringer, the people's court shall notify the other infringement in the legal proceedings, as a co-defendant, and to bear joint and several liability. but only to prosecute a particular tort victims who made it clear that the infringer to give up on other procedural rights, and should respect parties to dispose of their rights, should be abandoned infringer's share of total amount of compensation should be deducted, been charged with acts of the infringer only assume the corresponding liability. The second point: the two driving violation caused by the vehicle owner human damage, the vehicle owner can not expect his actions would be combined with each other's behavior, but due to accidental causes combined to make two of the act to cause damage, is no means to contact the co-infringement, the two not jointly and severally liable, should bear responsibility for their behavior accordingly.
a Supreme Court opinions people: two motor vehicle traffic violation a traffic accident caused damage to a third party, are not meant to contact the co-infringement. no mean Contact infringement is contributory infringement several people, each act jointly and severally liable, as a separate infringement, the perpetrators are held accountable. compensation for the right to indict only part of the joint tortfeasors, the people's court shall, as additional other co-defendant joint tortfeasors . insist on some compensation for the right people to give up joint tort claim, the people's court shall not interfere, but the other tortfeasors to the infringement proceedings to be abandoned shall be liable for infringement of the share is not jointly and severally liable, and shall be from the total sentence deducted, the remaining part by the joint tort should be held liable jointly and severally liable.
15, others have an agency with limited civil capacity or no capacity for civil conduct problems
filed divorce proceedings of the problem: judicial practice limit the capacity for civil conduct has not completely lost the ability to identify and control, regardless of marriage or a divorce, should be its own discretion. without civil capacity, as defendants in divorce cases, generally to allow his close relatives as an agent, or the people's court, in its near relatives agents involved in litigation. But for others, an agency no capacity for civil conduct brings it up divorce proceedings, then there are different views. that is both positive and negative views.
Supreme People's Court A court public opinion: limited capacity for civil conduct, whether by marriage or divorce have to decide, because it is not completely lost the ability to identify and control. no capacity for civil conduct as a defendant in the case of divorce proceedings, for which there is no controversy. no capacity for civil conduct in the active prosecution of the case of divorce, if there is no capacity for civil marriage at the beginning, there is no capacity for civil conduct causes, then the complaint should be filed invalid marriage, filed a person without civil capacity to marry the former guardian. no capacity for civil conduct causes the loss in capacity during the marriage took place, the first procedural issues to be resolved, no legal capacity to change the spouse's custody, the guardian after the change without civil capacity of people filed divorce proceedings.
16, whether the marriage split the couple during the existence of common property issues
of the problem: real life, one of the spouses Management (share) jointly owned property, excluding property of the other party dominance, so that can not be guaranteed basic living. but for various reasons, the other party do not want a divorce, the prosecution division of the couple to court to request only the common property of the people's court the possibility of marriage during the existence of the division of jointly owned property? trial in practice there are two views. The first view: According to the views of a dispute taken to court, People's Court review of compliance with certain conditions (such as husband and wife share the common property of the other party has damage to the common property of spouses equal control over the behavior and resulting in their basic lives have been severely affected and so on), accept and to be divided. if only to property disposal issues must be dissolution of marriage, is not conducive to fairness and justice. The second point: on, any party can force to force the other side with the division of property. Therefore, the law does not specify the circumstances, the people's court should not entertain such cases. As for the infringement of the rights of spouses, the law has provided for other relief channels, such as in need of maintenance of the party, there to demand the right to pay alimony. should be accepted.
a Supreme Court opinions people: not the case of dissolution of marriage, the parties jointly owned property not permitted to request. because of marital property relations and personal relations between the two sides are inseparable, this can only be a result of property relations marriage occurs, due to the termination of death of a spouse or divorce. husband and wife in marriage during the existence of common property ownership can be agreed, a deal could belong to the field of party autonomy, not to adjust the scope of the Court.
17, fails to summon the relative, whether the termination right to exercise right of cancellation period of limitation
Case: August 18, 1999, Lu underwent Jiangmou and signed a purchase agreement. The two sides agreed: Jiangmou all its of a window dressing rooms to sell the two Lu underwent a total purchase price of 110,000 yuan; payment is, Lu underwent the day of the signing of the agreement to pay 40,000 yuan in 2000 to pay 40,000 yuan before the Spring Festival, the balance in 2000 settled before the end of July, or Jiangmou right to withdraw housing. agreement was signed the same day, Lu underwent pay 40,000 yuan to Jiangmou the same time, Jiang Mou Lu underwent the Housing delivered to .2000 on October 31, Lu underwent pay of RMB 30,000 yuan. Since then, Lu underwent further unpaid .2003 January, Jiangmou made room for all of the facade warrants .2004 January, Jiangmou this to the people's court, requesting an order Lu underwent the return of the house, bear the penalty, and assume the case costs. trial, whether the contract should be lifted around the problem, Jiangmou that Lu underwent at the end of July 2000 should be paid before paying back the principal, or their right to withdraw housing , but after signing the contract to the prosecution, Lu underwent only paid 70,000 yuan, Lu underwent refused to pay the balance, so Jiangmou the right to terminate the purchase contract; Lu underwent the view that the two sides signed the contract was valid and should not be removed. to Jiangmou whether the right to terminate the contract, the trial, there are two different views: the first view: Jiangmou the exercise of right of cancellation period has passed. This view is mainly based on Supreme Court case law applicable to a number of issues of interpretation , right to terminate the right of cancellation should occur within 1 year from the date of exercise; overdue does not exercise the right of cancellation destroy. contract, but according to conditions, but the exercise of right of cancellation period of Jiangmou there is no agreement, therefore, can refer to the . Lvmou at the end of July 2000 is not paid before paying back the principal, Jiangmou, is entitled to lift the housing contract for the sale of the rights, but Jiangmou late to the end of July 2001 does not exercise right, the right to terminate eliminated, it should be rejected Jiangmou claim. The second point: the case should be applied to , and the right to destroy.
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