Summary of Personal Practice of Law: During the two weeks from 20XX,165438+1October 26th to 65438+February 9th, the Law School organized our law students of Grade 09 to have a professional practice. As a law student, I love my major. The two-week internship has ended, and the following report is made on this internship.
Professional practice is a process of improving one's own quality and knowledge and combining theory with practice. Professional practice is also a compulsory course in college life, and it is the first step for our college students to enter the society. After two weeks of internship, my practical ability has been greatly improved, which not only consolidated my legal practical ability, but also greatly enhanced my interpersonal skills, enriched my social experience, broadened my horizons and benefited a lot. I have come into contact with some civil and criminal cases, and through specific practical activities, I have a vivid and concrete understanding of the basic knowledge of law I have mastered before. I no longer stay in theory and talk on paper, but apply it to cases, with actual situation and live ammunition. For this reason, I understand that only by combining theoretical knowledge with practical cases can we apply the law more reasonably. This internship is an indispensable and important experience in my college life.
First, the internship content and results:
1. In terms of internship attitude, I have a correct internship attitude, respect for the leaders of the unit, respect for the staff in all positions of the unit, honesty and sureness, serious and responsible work, diligent study, continuous progress, and strong enthusiasm and initiative for legal work.
2. In terms of practice discipline, I urge myself in strict accordance with the requirements of a law major, strictly abide by national laws and regulations, earnestly abide by the work rules and regulations of the unit, never be late for work, never leave early after work, form a scientific and regular schedule, and ensure work efficiency.
3. In terms of internship ability, my practical work ability and work experience have been greatly improved and expanded from scratch, from point to point, through the careful and patient explanation and guidance of my tutor and my own hard study and understanding.
During my internship, I participated in some detailed and specific work, such as auditing the trial, sorting out the case files, conducting out-of-court investigation with the intern teacher, interviewing the parties, assisting in recording mediation and court transcripts, participating in collegiate panel deliberation, making and proofreading legal documents, and independently completing other work arranged by our hospital.
Through conscious exercise and exercise in practical work, my basic ability of finding, analyzing and solving problems has been further strengthened, my basic ability of official document writing, language expression and communication has been further consolidated, my advanced ability of innovation and cooperation has been further optimized, and my social interaction and activity ability has been further improved.
Second, the practical effects and shortcomings:
Generally speaking, I can turn what I have learned in school into my ability and experience in practical work, but there are also some defects and deficiencies that need to be improved.
The first is the lack of deeper patience. For example, the work of filing is tedious and boring. Sometimes files contain more and more contents, which are more and more complex, and it is difficult to arrange them and takes a long time. At this time, it is easy to get bored with work, which requires you to calm down in your future work and further improve your patience. Secondly, it lacks certain social experience. During the trial of some cases, my lack of social experience was exposed, which also sounded the alarm for myself. Law is a part of social life, which will be influenced by social prejudice, emotion and environment in the actual operation of society, which requires us to have certain social experience, experience and adaptability. I think I will pay more attention to the accumulation and enrichment of social experience in the future, so that I can get better and faster development and progress.
Third, feel:
A journey of a thousand miles begins with a single step. This short and substantial internship for nearly half a month, I feel that it has played a bridge role for me to go to society. Transitional role is an important experience and step in my life, and it will also be of great help to my future work. Some basic principles of being a man, such as asking for advice with an open mind, observing organizational discipline and unit rules and regulations, and communicating with people in a civilized way, should be conscientiously implemented in real life and good habits should be cultivated constantly in real life. Most of the experience and knowledge I learned during this period came from the teaching of leaders and teachers, which is a valuable asset in my life. This internship also made me deeply understand that it is very important to maintain good relations with colleagues at work. To do things, we must first learn to be a man, understand the truth of being a man, and how to get along with others is the most basic problem in modern society. For a person who is about to enter the society, there are many things to learn. They are the best teachers. As the saying goes, "A threesome must have a teacher", and we can learn a lot from them.
Fourth, my thoughts:
Through this internship, I thought about some problems and got education. My biggest feeling is that in any profession, especially those related to law, only people with good professional ethics will win respect and trust. Only when you have a solid legal foundation, integrate theory with practice and sum up experience and lessons in practice can you do a good job in legal work and become a qualified legal professional. During this period of study and internship, I deeply felt the position of law in our lives. As a law student, I will cherish my short and precious study time at school, be strict with myself, improve my theoretical level in many ways, be firm in my determination to safeguard the dignity of the law, and do my part for the development of our society.
In a word, this internship has benefited me a lot. I not only applied the theoretical knowledge I usually learned to practice, but also improved myself through practice and realized my theoretical deficiency. In the future study, we should practice more and apply what we have learned to practice, so that our law study can be truly fruitful and effective. In my later life, I will try to be a knowledgeable, fair, honest and law-abiding person like an excellent judge and lawyer.
Summary of two people's practice: first of all, I want to thank all the staff of Siping Intermediate People's Court and my instructor for their help and guidance in my practice.
My internship was arranged by the Law Department of Nankai University and Siping Intermediate People's Court. Through practice, I gained practical work experience in the field of law of the second major, and consolidated and tested the knowledge level of two-year undergraduate study. During my internship, I learned and participated in a large number of civil lawsuits, and also served as a clerk in some cases, and put forward my own ideas on some cases. During this period, I further studied civil law and civil procedure law, gained a deeper understanding of procedural issues, and organically combined theory with practice. My work has been fully affirmed and well evaluated by the internship unit.
During my internship, I mainly conducted in-depth research on the case of Guo and Siping Zhongxing Economic and Trade Co., Ltd., Siping Zhongxing Construction Company, Siping Zhongxing Real Estate Development Company and the dispute over the sales contract, participated in the whole process of the case trial, and was fortunate to participate in the deliberation of the collegial panel. Details of the case are as follows:
First, the origin and trial process of the case
In the case of Guo Xkui's dispute with Zhongxing Economic and Trade Co., Ltd., Zhongxing Construction Company, Zhongxing Real Estate Development Company and sales contract, the Tiexi District People's Court of Siping City made a civil judgment (20XX) Siximinchuzi No.349 on April 29th. After the judgment, Guo refused to accept the appeal, and Siping Intermediate People's Court filed a case on July 4th, 20XX, and formed a collegial panel according to law. Appellant Guo, entrusted agent Gai Rutao, appellant Hu Zhenru, agent of Siping Zhongxing Economic and Trade Co., Ltd. (hereinafter referred to as the economic and trade company), agent of Siping Zhongxing Construction Company (hereinafter referred to as the construction company), and appellant Siping Zhongxing Real Estate Development Company.
Second, the parties and other participants in the proceedings
Appellant (plaintiff in the original trial): Guo, entrusted agent: Gai xx. Appellee (defendant in the first instance): Zhongxing Economic and Trade Co., Ltd.
Legal Representative: Liu xx Authorized Agent: Hu Zhenru Appellee (defendant in the original trial): ZTE Construction Company Legal Representative: Liu Authorized Agent: xx, Appellee (defendant in the original trial): ZTE Real Estate Development Company Legal Representative: X Authorized Agent: Fu X Bin, Appellee (third person in the original trial) X Jie, and Authorized Agent: Dou X Law.
Three, the main points of the original judgment and the main contents of the appeal
Guo, the plaintiff, claimed that on June 7th, 20XX, the plaintiff and the defendant Siping Zhongxing Construction Co., Ltd. signed the Commercial House Purchase and Sale Agreement to sell the commercial outlets of about 86 square meters on Axis ⑦-⑦ and Axis 2/0A-B of ZTE Phase II Project to the plaintiff. The plaintiff paid 300,000 yuan according to the contract, and then paid it twice on September 26th and 30th of 20XX130,000 yuan. However, the defendant Siping Zhongxing Economic and Trade Co., Ltd. has not yet fulfilled the contract to deliver the house. The house was sold by the defendant Siping Zhongxing Real Estate Development Company to a third party, Yin Jie, in May of 20XX, which was a repeated sale and this behavior was invalid. We now sue the court for asking the defendant Siping Zhongxing Economic and Trade Co., Ltd. to fulfill the contract to deliver the house and bear the legal costs.
The defendant Siping Zhongxing Economic and Trade Co., Ltd. (hereinafter referred to as the economic and trade company) argued that the plaintiff had no objection. The contract signed by the defendant Siping Zhongxing Construction Company and the plaintiff was entrusted by the economic and trade company and was legal and valid. The plaintiff is the original property buyer, who paid all the house payment and should be protected. The purchase contract signed by the third party and Siping Zhongxing Real Estate Development Company belongs to repeated sales. After the development company found the repeated sales, it informed the third party to cancel the contract. The third party paid the house price with a car instead of cash, which was an invalid contract. Economic and trade companies can compensate the losses of third parties in accordance with regulations.
The defendant Siping Zhongxing Construction Company (hereinafter referred to as the construction company) argued that the house purchase contract signed by the defendant construction company and the plaintiff was legal and valid, and the plaintiff had paid all the house payment as agreed in the contract. The house purchase contract signed by the third party and Siping Zhongxing Real Estate Development Company was a repeated transaction, which was invalid and should not be supported. Defendant Siping Zhongxing Real Estate Development Company (hereinafter referred to as the Development Company) failed to reply within the statutory time limit.
Yin Jie, the third party, claimed that the commercial housing sales contract signed by the third party with the defendant development company on April 6, 20XX was legal and valid, and the defendant economic and trade company had confirmed the sales relationship of the third party; They colluded maliciously and harmed the interests of the third party.
The court of first instance held that the defendant construction company that signed the contract with the plaintiff did not have the qualification for housing sales, while the defendant development company that signed the contract with the third party had the qualification for housing sales. Although the plaintiff bought the house earlier than the third party, the buying and receiving behavior of the plaintiff and the third party was not based on the same conditions, so there was no initial purchase authorization problem, and the purchase agreement signed between the plaintiff and the defendant construction company was invalid. However, the defendant's construction company signed a contract for the sale of commercial housing with the plaintiff knowing that it did not have the pre-sale conditions of commercial housing, and the beneficiary defendant's economic and trade company changed the house payment receipt to a third party before agreeing to sell the house to the plaintiff, so the actions of the two defendants constituted fraud to the plaintiff.
The defendant's economic and trade company was willing to sell the disputed house to the plaintiff on the grounds of holding the Commercial House Sales License, but the license was obtained in July of 20XX, which could not resist the previous buying and selling behavior. After the defendant development company found that the business outlets were repeatedly sold, it issued a notice to the third party on September 6th, 20XX, requesting to terminate the contract, because it had no right to sell the house. However, the defendant's economic and trade company changed the house payment receipt to a third party on May 17, 20XX. The act of changing the receipt means that the defendant ZTE Economic and Trade Company agrees to sell the house to a third party, which means that the termination of the contract is unilaterally invalid. Therefore, the purchase contract signed by the third party and the defendant development company is legal and effective. According to Article 60 of People's Republic of China (PRC) Contract Law and Article 59 of People's Republic of China (PRC) Consumer Protection Law, the contract signed by Siping Zhongxing Real Estate Development Company and the third party Yin Jie was judged to be legal and valid, and its business relationship was established; The contract signed by the defendant Siping Zhongxing Construction Company and the plaintiff Guo was invalid, and the defendant Siping Zhongxing Construction Company immediately returned the purchase price of 430,000 yuan to the plaintiff Guo from the date when this judgment came into legal effect, and compensated the loss of 860,000 yuan by doubling the purchase price of 430,000 yuan. Defendant Siping Zhongxing Economic and Trade Co., Ltd. bears joint and several liability.
Appellant Guo requested to cancel the judgment of the court of first instance, and determined that the commercial housing sales contract between Guo and the construction company was legal and valid, so as to protect the appellant's initial right to purchase and payment. The reasons are summarized as follows: the construction company is the construction unit of the house, and the sale of the house is entrusted by the economic and trade company, the investor of the building, and the money from the sale of the house is used by the economic and trade company to pay for the project. Since then, the economic and trade company has reconfirmed the purchase behavior of the construction company after obtaining the commercial housing sales (pre-sale) license in July 20XX. Guo bought the house on June 7, 20XX, and bought the house several times in May, 20XX two years later, and settled with in June, 20XX, all before the economic and trade company obtained the commercial housing sales (pre-sale) license in July, 20XX. However, Yin Jie's house purchase contract has been revoked by the seller, and the appellant's house purchase agreement was confirmed by the seller after obtaining the Commercial House Sales (Pre-sale) Permit. On this basis, the initial purchase contract shall be deemed to be valid, and the subsequent repeated purchase contract shall be invalid. The appellee's economic and trade company, construction company and development company have no objection to the appellant's appeal request and reasons, and the economic and trade company agrees to compensate the third party for losses according to regulations. The appellee Yin Jie argued that the original judgment was correct and should be upheld. The appellant Guo maliciously colluded with economic and trade companies, construction companies and development companies to harm the interests of a third party. The Commercial House Sales Contract signed by Yin Jie and the Development Company is legal and valid, and the purchase price has been paid in full as agreed in the contract. And confirmed by the economic and trade company in the form of purchase receipt, so the legitimate rights and interests of Yin Jie should be protected.
Four, the analysis and identification of facts and evidence
20XX September, Siping City Planning Commission approved the development and construction of the station wholesale market project located at No.20 Hero Street, Tiexi District, Siping City. The project developer is a development company, the manager of investment organization and construction is an economic and trade company, and the construction is a construction company. The project started in June of 20XX.
On June 7th, 20XX, Guo signed the Purchase Agreement with the construction company (the construction company was entrusted by the economic and trade company to sell commercial housing to the outside world). Guo bought ⑦-⑦ commercial outlets on the first floor of 2/0A-B axis of ZTE's second phase project under construction, with a construction area of about 86 square meters, and paid 300,000 yuan for the house. On September 26th and 30th of the same year, the area payment130,000 yuan was paid. On April 25th, 20XX, Yin Jie signed the Commercial Housing Sales (Pre-sale) Contract with the development company, and Yin Jie purchased the commercial outlets ⑦-⑦ on the first floor of ZTE's second phase project under construction, with an axial construction area of 89.5 square meters. According to the contract, the house payment is 345,000 yuan. The construction company issued a receipt and the economic and trade company changed it in its own name. The building area is the same as the building area purchased by Guo. Before the prosecution, Yin Jie locked, occupied and controlled the self-installed security door of the house without obtaining the household entry procedures and the consent of the seller.
On September 25th, 20XX, witnessed by Hu Zhenru, lawyer of Jilin Yangxin Law Firm (legal adviser of economic and trade company), the ownership of the new building in the wholesale market in front of the station (the building of ZTE Phase II project) was confirmed by representatives of three related enterprises, namely ZTE Corporation, economic and trade company and development company. The three parties reached an agreement through consultation, confirming that the newly-built wholesale market building is owned by the economic and trade company, and the economic and trade company has the right to possess, use, benefit and dispose of the wholesale market building. On July 29th, 20XX, the economic and trade company reconfirmed the commercial housing entrusted to the construction company in the past and the purchase agreement signed between the construction company and Guo after obtaining the commercial housing sales (pre-sale) license. On September 6th, 20XX, the development company sent Yin Jie a notice to cancel the commercial house sales contract on the grounds that it had no right to sell the commercial house, demanding to solve the aftermath. Later, because Yin Jieqiang occupied the house agreed in the contract, Guo filed a lawsuit in Tiexi District Court on 20XX1October 23 10, demanding to obtain the commercial house agreed in the agreement.
Evidence:
1. The purchase agreement signed by Guo and the construction company and the purchase receipt issued by the construction company.
2. The commercial housing sales contract signed between Yin Jie and the development company, the receipt of the purchase price issued by the construction company, and the receipt of the exchange of letters issued by the economic and trade company.
3. Confirmation of ownership of new buildings in the wholesale market.
4, commercial housing pre-sale declaration form and commercial housing sales (pre-sale) license.
5. Notice sent by the development company to Yin Jie.
6. Confirmation letter from the economic and trade company.
7. State-owned land use certificate.
8. Property right confirmation and handover receipt.
9. Testimony materials of Wei Shi.
10, testimony materials of Wang Jinrong.
1 1, and other relevant evidential materials.
Verb (abbreviation of verb) Opinions and reasons for dispute resolution
According to the original judgment, the appellant's appeal request and reasons, and the appellee's reply, the focus of the dispute in this case is: which contract is valid, the house sales agreement signed by Guo and the construction company or the commercial house sales contract signed by the development company, and the sales relationship should be protected by law.
After the second trial, the collegial panel held that:
1. The commercial housing sales agreement signed by Guo and the construction company is valid, and its sales relationship should be protected by law.
Article 2 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts stipulates: "If the seller fails to obtain the certificate of pre-sale permit of commercial housing, the pre-sale contract of commercial housing concluded with the buyer shall be deemed invalid, but if the seller obtains the certificate of pre-sale permit of commercial housing before prosecution, it may be deemed valid". According to Article 51 of the Contract Law: "If a person who has no right to dispose of other people's property obtains the right to dispose of it after the obligee has ratified it or has no right to dispose of it, the contract is valid". According to the above-mentioned laws and regulations, the Commodity House Purchase and Sales Agreement signed by the construction company as the construction party and the Commodity House Purchase and Sales Contract signed by the economic and trade company as the investor and the development company as the project developer with the buyer at that time are in the state of not coming into effect or pending validity. It requires the project to define the property owner, and these contracts can only take effect after the property owner handles the Commercial Housing Sales (Pre-sale) License. Therefore, when Guo signed an agreement with the construction company at that time, its effectiveness was uncertain. However, the economic and trade company, the investor of the project, later became the owner of property rights and obtained the license for the sale (pre-sale) of commercial housing. He reconfirmed the Agreement on the Sale and Purchase of Commercial Housing signed by the construction company and Guo, and changed the agreement from an uncertain status to a legally binding agreement. The trading relationship between the two parties to the agreement is protected by law, so the commercial house should be owned by Guo.
2. The commercial housing sales contract signed between Yin Jie and the development company is invalid, and Yin Jie should be compensated for the losses according to the regulations. When Yin Jie signed the Commercial House Sales Contract with the development company, the contract effectiveness was still in a pending state because the property owner was not determined and the Commercial House Sales (Pre-sale) License had not been obtained. However, the economic and trade company, the project investor, became the property owner, and did not confirm the commercial housing sales contract signed by the development company and Yin Jie after obtaining the commercial housing sales (pre-sale) license. According to the provisions of Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts, the nature of this contract has changed qualitatively, from the status of undetermined validity to an invalid contract. Although the payee at the time of signing the contract was a construction company, it was later replaced by an economic and trade company. However, because the economic and trade company was neither the property owner nor the holder of the commercial housing sales (pre-sale) license at that time, its exchange behavior could only belong to collection behavior. Therefore, after the economic and trade company became the owner and obtained the commercial housing sales (pre-sale) license, the development company issued a notice to Yin Jie to terminate the contract. In addition, the contract signed between the development company and Guo occurred two years after the construction company signed an agreement with Guo. According to the Contract Law of People's Republic of China (PRC), it also infringes upon the legitimate rights and interests of the initial purchaser Guo, and Guo's initial purchase right should also be protected by law.
The collegial panel also believes that the responsibility for the invalidity of the commercial housing sales contract signed between Yin Jie and the development company lies entirely with the development company, the economic and trade company and the construction company. When the development company signed a contract with Yin Jie, the construction company collected the purchase price and issued an invoice, and then the economic and trade company reissued the purchase price receipt, so these three companies were aware of the repeated sale of houses. However, Yin Jie did not know about the repeated sales of the development company at that time, and its trading behavior was in good faith, so the losses it suffered should be compensated according to relevant regulations. Article 9, paragraph 1, item 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Contracts stipulates: "If the seller enters into a commercial housing sales contract, and the contract is invalid or cancelled or dissolved due to one of the following circumstances, the seller may request the return of the paid house price, interest and compensation for losses, and may request the seller to bear the compensation liability not exceeding twice the paid house price:
(3) Deliberately concealing the fact that the house sold has been sold to a third party or that the house has been demolished for compensation and resettlement ".
According to this regulation, the development company should return the purchase price of 345,220.78 yuan to Yin Jie, and double the purchase price to compensate for the losses. Economic and trade companies and construction companies should bear joint and several liability for payment. Because of the complicated relationship involved in the case, the collegial panel submitted the case to the judicial Committee, and the opinions of the collegial panel, including my personal opinions, were submitted together. The judicial committee supports most of the opinions of the collegial panel. However, due to different understanding of the legal provisions and consideration of various objective factors, the judicial committee adopted other viewpoints after a heated discussion on the issue of compensation to the third party, that is, since Yin Jie did not ask the court for return and compensation in this case, he should seek other legal ways to solve it.
To sum up, the court of second instance held that the original judgment was wrong and the applicable law was improper, and the appellant Guo's appeal was justified and should be supported. After discussion and decision at the 39th meeting of the Judicial Committee of Siping Intermediate People's Court, according to the provisions of the second and third items of the first paragraph of Article 153 of the Civil Procedure Law of People's Republic of China (PRC), it is decided that:
First, cancel the civil judgment of Tiexi District People's Court of Siping City (20XX) Si Ximin Erchuzi No.349;
2. The Commercial House Purchase and Sales Agreement signed by Zhongxing Construction Company and Guo is valid, and the purchase and sales relationship is established;
3. The commercial housing sales contract signed by ZTE Real Estate Development Company and Yin Jie is invalid. 1. The acceptance fee for the second instance case is 22,220.00 yuan, which shall be borne by ZTE Real Estate Development Company, ZTE Economic and Trade Company and ZTE Construction Company. Through in-depth study of this case, I think Siping Intermediate People's Court found the facts clear, the applicable law was correct and the judgment was fair. However, regarding the compensation of the third party, Yin Jie, I still insist on the opinion I put forward in the collegiate bench: 1 The trial of a case of second instance should focus on the scope of the appeal request of the parties. If the parties have not made a request, it will not be reviewed, except that the judgment violates the prohibitive provisions of the law and infringes on the public interests or the interests of the third party. The contract signed between ZTE Construction Company and the third party, Yin Jie, is invalid, and it should be restored to its original state, returned to the original object and compensated for the losses according to law. Based on the above two reasons, I think the court should protect the interests of the third party, that is, the development company should return Yin Jie's house purchase price of 345,220.78 yuan and double the house purchase price to compensate for the losses, and the economic and trade company and the construction company should bear joint liability, instead of letting the third party find another legal way to solve it. This not only fails to effectively protect the interests of bona fide third parties, but also increases the burden of litigation and wastes judicial resources.
This internship is an indispensable and important experience in my college life, and its gains and significance can be seen. First of all, I can apply what I have learned to practical work. Theory and practice are inseparable. In practice, my knowledge has been consolidated and my ability to solve problems has been exercised. Secondly, this internship broadened my horizons, let me understand the operation of law in reality, and also have a further grasp of French; In addition, I made many friends with judges and lawyers, and we exchanged ideas and promoted each other. As a student of Nankai, I try to be an emissary of Nankai culture, introduce Nankai to friends from all walks of life, and let them get close to Nankai and get to know it.