The appeal number of second instance 1 and the time when the appellant received the judgment and ruling of first instance;
The name of the people's court of first instance; The request and reasons for the complaint;
Time for filing an appeal; Appellant's signature or seal, etc.
If the defendant's defender or close relative appeals with the consent of the defendant, the relationship between the appellant and the defendant shall be clearly stated and the defendant shall be regarded as the appellant.
Appellant of Civil Appeal II: Beijing X Technology Development Co., Ltd..
Legal Representative: Zhang×××
Appellee: Beijing Branch of China × Co., Ltd.
Legal Representative: Jiang XX
The appellant refused to accept the judgment of Beijing Xicheng District People's Court (2004) XiminchuziNo. 1. 9 102: The case of dispute over the sale with the appellee is appealed.
Appeal request:
1, requesting the court of second instance to cancel the judgment of first instance;
2. Request the appellee to pay the appellant 584766 according to law. 42 yuan, interest 50962. 0 。
Yuan.
3. All the litigation expenses of the first and second instance of this case shall be borne by the appellee.
Reasons for appeal:
The appellant believes that the court of first instance found that some facts in this case were wrong and the law was inappropriately applied.
The appellant is the holder of the receipt of March 29th, 20xx and three outbound orders. The appellant also provided the testimony of witness Zheng× and the factory certificate of the manufacturer to the court. These two materials further show that the goods in the receipt and outbound order are indeed owned by the appellant, but some of the goods were not delivered in person, but were delivered to the construction site at No.9 Yangfangdian Road by other companies or individuals.
The Appellant believes that the testimony of witness Zheng X and the certificate of the sales company are complementary to the goods recorded in the receipt and three outbound orders held by the Appellant, forming a complete chain of evidence, which can fully prove that the Appellee has indeed received all the goods claimed by the Appellant.
The appellee's only authorized person can't be the only proof that the appellee has received the goods. Therefore, the Appellant enjoys the corresponding ownership of the goods recorded in the receipt of March 29th, 20xx and the other three outbound orders, and forms a legal creditor's right to the Appellee, and the Appellee shall fulfill the obligation to pay the goods to the Appellant. This requires the court of second instance to give full consideration when evaluating the case, so that the principle of fairness and justice of the law can be fully reflected.
So that the legitimate rights and interests of creditors can be protected in time according to law.
In addition, regarding the other two receipts in this case, the court of first instance fully affirmed the facts and laws, and confirmed that the appellee had received the goods in the two receipts, and the appellee had the corresponding creditor's rights to these goods, and the appellee should pay the corresponding price.
Although the goods price certificate provided by the appellant in the first instance is not enough to prove the legitimate value of the goods, the court should, in line with the principle of timely solving contradictions and ensuring the safety of commodity trading and circulation, exercise the corresponding investigation power in a timely manner according to law and entrust the relevant price appraisal institutions with legal qualifications to appraise the goods price in the receipt, so as to solve the dispute in this case.
According to the provisions of China's Civil Procedure Law, the appellant now requests the court of second instance to evaluate the price of all the goods listed in the receipt and outbound order provided by the appellant, so as to safeguard the realization of legal creditor's rights and recover the appellant's losses as much as possible.
With regard to the interest on the payment for goods caused by the appellee's failure to pay the payment immediately, as the appellee and the appellant constitute a factual buying and selling relationship, according to the provisions of China's Contract Law, the obligee has the right to claim payment at any time without clearly agreeing on the payment time.
The appellee has received all the' goods' in the receipts and outbound orders since February 20x65438, and is obliged to pay the above money immediately. However, despite the appellee's repeated reminders, the appellee has not paid a penny for the goods so far.
The appellee, as a formal company, should know the basic transaction knowledge of collection and payment, but ignore the fair trade and default on payment for a long time without any reason, which shows that it is subjectively at fault. Therefore, the appellee should objectively bear the corresponding liability for the loss of interest income caused by the appellant's failure to get the payment. Therefore, it is legal and reasonable for the appellant to ask the defendant L to pay the corresponding interest certificate to make up for the appellant's loss, which should be protected by law and supported by the court.
The fourth item in the legal confirmation part of the first-instance judgment refers to borrowing, which is considered as the only prerequisite for paying interest. The appellant thinks that this is not objective, which leads to the wrong application of the law in this judgment, because the appellant verbally asked the appellee to pay for the goods after paying the goods on February 3, 20x65438, and then made several reminders, which is not what the first-instance judgment said. In addition, it is against objective common sense to urge payment after cash on delivery.
Due to the appellant's failure to fulfill the corresponding obligation of payment, the appellant's loss has expanded, and the appellant should naturally assume the obligation of compensation for the expanded loss.
To sum up, the Appellant requested the court of second instance to order the Appellee to pay the Appellee 584,766 on the principle of protecting the interests of creditors objectively and fairly. 42 yuan, interest 50962. 00 yuan and the litigation costs of the first and second instance of this case.
I am here to convey
Beijing XXX Intermediate People's Court
Appellant: Beijing × Technology Development Co., Ltd.
Date, year and month
Appellant Zhang of Criminal Appeal III, male, Han nationality, 19xx was born on March 6th, with the ID number of 34010419x03060016, party member, a native of Huaiyin City, Jiangsu Province, with a university degree. He was once a member of the leading group of the People's Procuratorate of Luyang District, Hefei City.
The appellant refused to accept the criminal judgment No.027 (hereinafter referred to as the judgment of first instance) of Changfeng County People's Court for being suspected of case 20xx, and hereby appealed according to the facts and laws.
Appeal request:
1. Revoke the criminal judgment of Changfeng County People's Court (20xx) Zi Chu Zi No.027;
2. Declare the appellant Zhang innocent.
Reasons for appeal:
1. The first-instance judgment found that the appellant Zhang took advantage of his position and accepted 200,000 yuan from Hefei Luogang Company. The main facts were unclear and the main evidence was insufficient.
(1) The criminal facts identified in the first-instance judgment are unclear as follows:
1 and 0.2 million/200 thousand yuan from unknown sources.
Lack of direct evidence, such as bank withdrawal voucher or borrower's certificate.
In the later period, the account number is 4 1 with white stripes such as earthwork. This 40,000 yuan includes this 200,000 yuan in cash, which is only a formal accounting, and it was not the source of this 200,000 yuan in cash at that time. The first-instance judgment did not respond or explain this.
2. Zhang's post in the second half of19xx is unclear.
Although the prosecution submitted the resume of the defendant Zhang to the court, it could not prove Zhang's real employment in the second half of 1997.
In this regard, the defendant Zhang once applied to the court in oral and written form to investigate the minutes and documents of the personnel meeting of the party group of the procuratorate.
However, the court of first instance did not investigate and collect evidence, nor did it explain the reasons for not investigating and collecting evidence in the judgment.
3. Is the content signed by Li Decai, then executive vice mayor of Hefei, true in "Request for Instructions on Reducing the Cost of Staff Residential Building Construction Project" (hereinafter referred to as "Request for Instructions")? That is to say, is there any instruction from Governor Zhang Ping? If so, what is the instruction content of Governor Zhang Ping? Who asked Governor Zhang Ping for instructions? Who asked Li Decai to sign it? After Li Decai signed it, who gave the report for instructions? Wait, the facts are not clear.
The first-instance judgment did not respond or explain this.
4. The right to sign and approve the free planning project is not clear.
Is the mayor of the municipal government, executive deputy mayor or deputy mayor in charge of planning, or planning director.
If the planning director himself has no right to waive the planning fee, then whether Zhang has any restrictions on Wu Zhending has no practical significance for Wu Zhending to sign the exemption fee.
An important fact of this case is that it should be found out at which level the power to waive fees is led.
The court of first instance did not investigate and collect evidence, nor did it explain the reasons in the judgment of first instance.
(2) The judgment of the first instance found that the fact that the appellant Zhang used the convenience of the Director of Anti-Corruption to cause Wu Zhending to sign the Fee Waiver lacked sufficient factual evidence, which contradicted the contents of the Request for Instructions cited by the prosecution.
First of all, although the prosecution cited the testimony of witness Jiang Ru, Wu Zhending and documentary evidence from the court, the above evidence was not sufficient because the witness did not appear in court for cross-examination, the place and environment where the witness was questioned, and the contradiction between testimony and documentary evidence.
Although Wu Zhending said in the first transcript that "Zhang asked him to sign" and in the second transcript that "Zhang asked him to sign", the content of the request confirmed that Wu Zhending had carried out the instructions and had nothing to do with Zhang.
Secondly, Wu Zhending himself does not have the right to waive the planning fee.
According to the corresponding regulations, the exemption of planning fees is usually signed by the deputy mayor in charge or the executive deputy mayor, and the planning director himself has no right to exempt planning fees.
Even if there is a subordinate or restrictive relationship between Zhang and Wu Zhending, Wu Zhending, who has no right to waive the fee, cannot be signed to waive the fee.
Third, Wu Zhending carried out the instructions of Mayor Li, not because the defendant Zhang came forward.
He himself is disgusted with Zhang. As a department-level cadre, how can you sign illegally to avoid planning fees because you are afraid that your colleagues will commit crimes in the future? Whoever commits a crime will bear legal responsibility. How can we use the power given by the people to cover up crimes? How can you abuse administrative power? Obviously, Wu Zhending's testimony is false and contradicts the documentary evidence.
The first-instance judgment did not give any analytical explanation for the contradiction between such outstanding evidence, which is really unconvincing.
(3) The first-instance judgment found that the appellant Zhang took advantage of his position to accept 200,000 yuan in cash, which lacked sufficient factual evidence.
First of all, the direct evidence cited by the prosecution to the court for this important fact is only Jiang Ru's testimony, and there is no other evidence.
One of the evidences is that there is no. 1 tono. 12 listed in the judgment of first instance, only the testimony of witness Jiang Ru is the only direct evidence about whether Zhang accepted 200,000 yuan, and the rest are indirect evidence.
No matter how much circumstantial evidence there is, no matter how the circumstantial evidence is mutually confirmed, it is impossible to draw the conclusion that Zhang accepted 200,000 yuan in cash.
There is a contradiction between the source of 200,000 yuan, the place where the money was paid, the place where the case was reported and the person who reported it (see the testimony of Wei Daolong, Wu, Jiang Ru for details), and the prosecution has no reasonable explanation for this.
To take a step back, even if the above problems do not exist, the evidence presented by the prosecution can only prove how the 200,000 yuan was given to Jiang Ru, but cannot prove that Zhang received the 200,000 yuan.
The key fact whether Zhang accepts 200,000 yuan in cash belongs to the "one-on-one" evidence state. According to the provisions of China's criminal procedure law, only the facts that are beneficial to the appellant can be determined, but it cannot be determined that the appellant Zhang received 200,000 yuan in cash.
Secondly, the prosecution cannot rule out the possibility that Jiang Ru will take this 200,000 yuan as his own.
Jiang Ru is an interested party in the main fact of whether to give 200,000 yuan to Zhang, and her testimony is of low effect.
If Jiang Ru doesn't give this 200,000 yuan to Zhang, he may take it for himself, and the fact that he takes it for himself may make him be investigated for criminal responsibility.
To prove the important facts in this section, the testimony of the prosecution witness Jiang Ru is an orphan.
Zhang's defense is one-on-one, and no one can deny anyone's testimony.
In judicial practice, it is usually impossible to determine that the defendant has received property.
Third, Wu Zhending's signing to waive the planning fee was not caused by Zhang's taking advantage of his position, but was instructed by the deputy mayor. It was not necessary to hand over the 200,000 yuan to Zhang.
Second, the first-instance judgment found that the appellant Zhang took advantage of his authority to demand RMB 1 654,380+05,000 yuan from Chen Lihai, the legal representative of Licheng Company. The main facts are unclear and the main evidence is insufficient.
According to Article 388 of China's Criminal Law, the mediation receiver X must meet the following conditions at the same time: 1, the trustee X requires the trustee X to seek illegitimate interests; 2. Party A delivers the property to the beneficiary in advance or agrees to give the property afterwards; 3. On the premise that Party X subjectively knows that Party X seeks illegitimate interests, and has accepted or agreed to give property afterwards, Party X actively uses the convenience formed by its authority or position to seek illegitimate interests for Party X through the duty behavior of other national staff.
4. Recipient X accepted the property.
None of the above conditions constitutes the crime of X matchmaking.
Combined with the relevant facts, evidence and legal provisions of this case, the first-instance judgment found that the so-called main criminal facts lacked sufficient factual evidence.
The reason for this is the following：
(1) Chen Lihai did not ask the defendant Zhang to seek illegitimate interests in advance, such as "rescission of the project cooperation contract and excessive compensation".
Chen Lihai and Licheng Company did not ask the defendant Zhang for "overpayment" and other entrusted matters in advance.
For the facts in this section, the prosecution can't prove that Chen Lihai asked Zhang for more compensation in advance.
Chen Lihai's testimony did not prove this, and the defendant Zhang did not confess this.
(2) The prosecution also has no evidence to prove that Chen Lihai promised Zhang in advance that the urban construction company would pay more compensation and give him property benefits.
For the facts in this section, all the evidence adduced by the prosecution, including Chen Lihai's testimony and Zhang's defense, cannot prove that Chen Lihai promised to give Zhang property and other benefits before (before signing the agreement to cancel the cooperation project) or after (after signing the agreement to cancel the cooperation project).