Time to submit the defense of the second instance:
According to Article 150 of the Civil Procedure Law of People's Republic of China (PRC), the people's court that originally tried the case shall serve it on the other party within five days after receiving the copy of the appeal, and the other party shall submit a reply within fifteen days from the date of receipt.
The people's court shall, within five days from the date of receiving the reply, serve a copy on the appellant. If the other party fails to submit the defense, it will not affect the trial of the people's court. After receiving the appeal and defense, the people's court of first instance shall submit it to the people's court of second instance together with all the files and evidence within five days.
Submit a defense to the district court within 15 days after receiving the appeal, and the district court will submit a defense to the court of second instance.
Reading development
Model essay on defense of civil second instance:
Respondent: Zhao xx, female, born in April 1953, Han nationality, member of China Democratic League, currently practicing: Deputy Secretary-General of the Film and Television Center of xx TV Station, concurrently vice-president of xx Philanthropists Association, living at No.302, Lian Fang Road, congtai district, xx City, with contact information 13230075890.
What is the respondent's opinion on the appellant xx? Guo Xin Environmental Protection Engineering Co., Ltd.? Ren Wenjun, Zhao xx and Zhou Runxia put forward the following defense opinions on the dispute over the equity transfer contract.
First, the facts identified in the original judgment are basically correct.
In the appeal, the appellant claimed that the original judgment was totally inconsistent with the facts. It is believed that the first-instance judgment found that Guo Xin Environmental Protection Engineering Co., Ltd. assumed part of the debt for Li Hao Company, and said that the debt should be owned by Zhao xx and Zhou Runxia before the equity transfer.
However, the Equity Transfer Agreement of Shexian Li Hao Sewage Treatment Co., Ltd. signed by the Appellant and the Respondents Zhao xx and Zhou Runxia on July 30, 20xx and the Supplementary Agreement on Equity Transfer signed on July 30, 20xx did not involve creditor's rights and debts. Therefore, the appellant's grounds for appeal cannot be established.
This case is a case of contract dispute and equity transfer dispute, not a case of creditor's rights and debts, the appellant claims? According to the Transfer Agreement of Li Hao Sewage Treatment Plant signed by Li Hao Company and Guo Xin Company on June 26th, 20xx, the respondent shall bear all the creditor's rights and debts before, during and after the operation of the project. ? This claim and the grounds for appeal cannot be established, because it is not within the scope of this case.
What kind of legal relationship should be decided first in this lawsuit? There is no doubt that this case is the legal relationship between contract disputes and equity transfer, not the legal relationship between creditor's rights and debts. Even if the contract, equity transfer agreement and supplementary agreement involve creditor's rights and debts, it is a matter that the appellant sues alone, not a joint trial.
2. In the appeal, the appellant thinks that there is no basis for the application of legal errors in the first-instance judgment.
The appellant claimed in the appeal? The first-instance judgment used the second paragraph of Article 94 of People's Republic of China (PRC) Contract Law: before the expiration of the performance period, one party clearly indicated or indicated by its own behavior that it would not perform the principal debt. In this case, xx Guo Xin Environmental Protection Engineering Co., Ltd. never said that it would not perform the transfer agreement, but repeatedly told the court that xx Guo Xin Environmental Protection Engineering Co., Ltd. would pay the equity transfer fee to the appellee once the amount of debt offset was determined. The judgment of first instance is based on Article 13 of the Contract Law. ?
The respondent believes that it is correct to apply the second paragraph of Article 94 of the Contract Law to the original judgment, which is applicable to Ren Wenjun and Guo Xin Environmental Protection Company. Based on the following facts: the Equity Transfer Agreement of Shexian Sewage Treatment Co., Ltd. signed by defendants Zhao xx, Zhou Runxia and Ren Wenjun, and the Supplementary Equity Transfer Agreement signed on July 30 completed the equity transfer of all the companies Zhao xx and Zhou Runxia. The legal relationship in which both parties express the same opinion is the equity transfer of Li Hao Company.
The above two agreements are the true meaning of the appellant and the appellee, and their contents do not violate the mandatory provisions of the law, and they are all valid agreements. After the respondent signed the agreement, it assisted the appellant to go through the formalities of industrial and commercial change, and changed 20% of Zhao XX's shares and 40% of Zhou Runxia's shares into Ren Wenjun, so that Ren Wenjun owned 60% of Shexian Li Hao Sewage Treatment Co., Ltd., with a capital contribution of 360,000 yuan (unpaid). At the same time, the legal person of Li Hao Company was changed from Zhao xx to Ren Wenjun, which was 65,438 in July of 20xx. The Equity Transfer Agreement of Shexian Sewage Treatment Co., Ltd. signed by defendants Zhao xx, Zhou Runxia and Ren Wenjun is an agreement for handling industrial and commercial transfer procedures, and has nothing to do with the transfer agreement of Shexian Sewage Treatment Plant.
3. In the appeal, the appellant claimed that the transfer agreement No.2005 of Shexian Li Hao Sewage Treatment Plant was wrong. The Supplementary Agreement on Equity Transfer signed on July 5th, 20xx/KLOC-0 and July 30th, 20xx has no objective basis for dissolution according to law.
The signing of the contract should be based on the legislative or judicial spirit of People's Republic of China (PRC) Contract Law, General Principles of Civil Law and the Supreme People's Court's Interpretation of Several Issues Concerning the Application of Laws in the Trial of Civil Cases, that is, the basic principles of consistency in expression of will, fairness, compensation for equal value, honesty and credibility.
The appellant in this case obviously violated the principle of good faith. After the two parties signed the agreement, the appellant took over Shexian Li Hao Sewage Treatment Co., Ltd. and began to build Shexian Li Hao Sewage Treatment Plant, which belongs to Li Hao Sewage Treatment Co., Ltd., and failed to pay the respondent a one-time compensation for the expenses incurred in the construction of this project in accordance with the Agreement on the Transfer of Shexian Li Hao Sewage Treatment Plant signed on June 26th, 20xx.
The down payment of RMB 6,543,800 and the equity transfer fee of RMB 4,500,000 agreed in the Equity Transfer Agreement and Supplementary Agreement signed with the respondent were also not paid. Undoubtedly, the appellant's behavior has constituted a breach of contract, and according to the provisions of laws and regulations, the transfer contract can of course be terminated.
In this case, did xx Guo Xin Environmental Protection Engineering Co., Ltd. and Ren Wenjun violate it? Honesty and credit? In the revocable clause of contract law, one of the manifestations of violating honesty and credit is fraud. In this case, Ren Wenjun evaded the law, signed the Equity Transfer Agreement and Supplementary Equity Transfer Agreement with Zhao xx and Zhou Runxia as natural persons, and signed the Transfer Agreement with Ren Wenjun as the chairman and legal representative, in order to refuse to pay the down payment of 6.5438 million yuan and 4.5 million yuan. Therefore, the original judgment is undoubtedly correct.
The appellant claims that xx Guo Xin Environmental Protection Engineering Co., Ltd. undertakes part of the debt for Li Hao Company to offset the deferred payment of the transfer money due to the respondent's disagreement.
Judging from the contents of the Shexian Sewage Treatment Plant Transfer Agreement signed by both parties, it is only agreed that all the creditor's rights and debts before, during and after the operation of the project will not be borne by Party B.. The agreement is not an equity transfer agreement, but a sewage treatment plant project transfer agreement under the name of Shexian Sewage Treatment Co., Ltd., and it is not stipulated that the appellant shall bear the debts of Li Hao Company. The appellant defended the respondent's delay or refusal to pay the equity transfer payment on the grounds of bearing the debts of Li Hao Company, which is obviously a breach of contract.
In the appeal, the appellant claimed that the appellant invested more than 40 million yuan after taking over the Li Hao company, so as to claim that the appellant had no legal causal relationship, because the fault party in this case was the appellant. The appellant breached the contract first, subjectively and intentionally. Objectively, the losses caused by the failure to pay the respondent's deposit of 6,543,800 yuan and the equity transfer fee of 4,500,000 yuan were causal with the appellant's fault.
4. In the appeal, the appellant claimed that Guo Xin Environmental Protection Engineering Co., Ltd. had paid more than 2.8 million yuan, because the lawsuit of equity transfer fee should be tried by the court of first instance. Advance funds have no legal basis and should be part of the equity transfer dispute case. The appellant sued more than 2.8 million yuan to the court of first instance as a separate cause of action, and the respondent requested the court of first instance to withdraw the lawsuit as a whole according to law, which was accepted by the court.
5. The original judgment found that it was wrong for Zhao xx's husband Fan Fen to borrow 280,000 yuan from Ren Wenjun for three times. This case is an equity transfer contract dispute case, not a private lending case.
The original judgment rejected the other requests of the respondent, and we will prosecute separately.
To sum up, the facts identified in the original judgment are basically correct and the applicable law is accurate. We request the people's court to reject the appellant's appeal and uphold the original judgment according to the first paragraph of Article 153 of the Civil Procedure Law of People's Republic of China (PRC).
Respondent: Zhao xx
20xx April 16