Li, a citizen, entrusted the New Dong 'an Gallery in this city to buy the oil painting Spring Scenery by the famous painter Zhang, worth 500,000 yuan. The two sides signed an entrustment contract and agreed to pay in two installments. After signing the contract, Li remitted 250,000 yuan to the gallery. After the gallery manager Cheng reached a written agreement with the painter Zhang to buy the oil painting "Spring Scenery" exhibited in the gallery, worth 400,000 yuan. After the contract was concluded, the gallery paid a deposit of 50,000 yuan to Zhang, and the paintings were delivered and paid after the exhibition. Two months later, Cheng, the gallery manager, was arrested by the judicial authorities on suspicion of injury, and three creditors sued the gallery at the same time. When the painter Zhang learned about it, he sent someone to the gallery to retrieve the oil painting. After learning about the situation, Li sued the painter Zhang and asked him to deliver the oil painting "Spring Color". Q: Does the court support Li's claim? Why? \
I mean, the court should support Li's claim and ask Zhang to perform the contract. The reason is that the legal consequences of the principal-agent contract are directly borne by the principal. I understand that the parties to the sales contract signed by the gallery are Li and Zhang, which has nothing to do with the gallery. However, an authoritative teacher of a training institution said that the contract was signed by the gallery and Zhang. Based on the relativity of the contract, Li can't exercise the right of claim against Zhang.
The contract is relative. But as an anonymous entrustment contract, the trustee has the obligation to inform. The trustee enters into a contract with a third party in his own name within the scope authorized by the principal. If the third party knows the agency relationship between the trustee and the principal when concluding a contract, the contract will directly bind the principal and the third party, unless there is definite evidence to prove that the contract only binds the trustee and the third party.
When the agent enters into a contract with a third party in his own name, the third party does not know the agency relationship between the agent and the principal, and if the agent fails to perform his obligations to the principal due to the third party, the agent shall disclose the third party to the principal so that the principal can exercise the agency right to the third party, except that the third party would not enter into a contract with the agent if he knew the principal.
If the trustor exercises the rights of the trustee against a third party, the third party may claim its defense against the trustee from the trustor.
One of the typical cases of marriage law, Tian Xiquan, the agent of Chen Suqin, v. Liang Zhongmei, the legal representative.
[case]
Plaintiff: Tian Xiquan, male, 28 years old, with no capacity.
Legal Representative: Chen Suqin, mother of Tian Xiquan.
Defendant: Liang Zhongmei, female, aged 27.
Tian Xiquan and Liang Zhongmei got married in June 1999 1 1, and gave birth to a daughter Tian Yu (two years old). After marriage, the couple have a good relationship. 1On August 39, 993, Tian Xiquan was injured by a car due to a traffic accident, and his left temporal occipital skull was comminuted. He was identified as a first-class head disability by forensic doctors (vegetative, incapacitated). On April 27th, 1994, Tian Xiquan's mother, Chen Suqin, as Tian Xiquan's legal representative, filed a divorce lawsuit with Tiexi District People's Court in Shenyang on the grounds that Tian Xiquan had bad feelings, especially after Tian Xiquan was injured in a traffic accident, she found that Liang Zhongmei was having an affair and their relationship broke down. Authorized Agent: Li, sister of Tian Xiquan.
Liang Zhongmei argued that after marriage, the relationship between husband and wife has been very good, and the feelings have not broken down, and they do not agree to divorce.
[trial]
The Tiexi District People's Court held through trial that although the original and the defendant were married independently, they never established sincere feelings between husband and wife after marriage, and the plaintiff had disputes over trivial matters of life, and the plaintiff did not trust the defendant after the accident, resulting in the breakdown of feelings between husband and wife. Now the plaintiff's request for divorce is justified and should be allowed. In view of the plaintiff's physical condition, it is advisable for the legitimate daughter to be raised by the defendant after the divorce of the original and the defendant. The defendant Liang Zhongmei disagreed with the divorce, but did not try his best to take care of the plaintiff and strive for reconciliation between husband and wife. She has no realistic attitude. According to the provisions of Articles 25, 29 and 30 of the Marriage Law of the People's Republic of China, the judgment was made on August 1994+02 as follows:
1. Allow Tian Xiquan and Liang Zhongmei to divorce;
2. The legitimate daughter Tian Yu (two years old) was raised by the defendant, and Tian Xiquan paid 59 yuan a monthly maintenance fee, from July 1994 to the age of 18 in Tian Yu.
After the verdict was pronounced, Liang Zhongmei refused to accept it and appealed to the Shenyang Intermediate People's Court on the grounds that the relationship between husband and wife had not broken down and she did not agree to divorce. Tian Xiquan's mother and sister agreed with the judgment of the court of first instance.
The Shenyang Intermediate People's Court held that Tian Xiquan and Liang Zhongmei were married independently and had a daughter. After marriage, the couple have a good relationship. Although Tian Xiquan was seriously injured in a traffic accident, Liang Zhongmei went to take care of him during his hospitalization and repeatedly expressed his willingness to take care of his future life. Therefore, the court of first instance ruled that the divorce was improper. In accordance with the provisions of Item (3) of Paragraph 1 of Article 153 of the Civil Procedure Law of People's Republic of China (PRC), the judgment was as follows on June 24, 2006:
First, cancel the civil judgment of first instance;
2. Reject Tian Xiquan's divorce request.
[analysis]
This case is a divorce case filed by the mother of a person without capacity, and the judgment of the court of second instance is correct. However, the legitimacy of the plaintiff's mother's subject qualification and whether she can file a divorce lawsuit on behalf of the plaintiff are worth studying.
First of all, the agent in this case does not have the qualification of legal agent. In this case, Tian is a vegetable, unable to take care of himself, unable to identify himself, unable to express his will, legally incapacitated and unable to engage in civil and civil litigation activities. According to the General Principles of Civil Law, a guardian should be appointed for him. According to Article 17 of the General Principles of Civil Law, the order of guardians is: (1) spouse; (2) parents; (3) adult children; (4) Other relatives; (5) Accordingly, the spouse is the first order, and Liang Zhongmei should be Tian Xiquan's legal guardian. The spouse of the incapacitated person should not only bear the responsibility of guardianship to the incapacitated person according to law, but also fulfill the obligation of support, otherwise he will be interfered by the law. In the case that the spouse does not give up guardianship and has not been disqualified from guardianship by the people's court for harming the legitimate rights and interests of the ward, no other person may exercise guardianship instead of his guardian. Therefore, in this case, Tian Xiquan's mother, Chen Suqin, does not enjoy custody according to law. The General Principles of the Civil Law stipulates that the "guardian is his legal agent" of a person without capacity for conduct. Therefore, Tian Xiquan's mother, Chen Suqin, does not have the legal representative qualification and has no right to entrust others to participate in the litigation. Li represented Tian Xiquan in filing a divorce lawsuit. They did not have the legal representative qualification and had no right to represent him.
Secondly, it is beyond the scope of legal guardianship to file a divorce lawsuit on behalf of the incapacitated person, which infringes on citizens' marital autonomy. According to the relevant provisions of the General Principles of Civil Law, the guardianship scope (or responsibility) of a guardian for a person without capacity for conduct mainly includes the following four aspects: (1) Personal guardianship of the ward mainly refers to the management and restraint of his identity, health, education and behavior; (two) to manage and protect the property of the ward, so that its property is not lost or infringed; (3) Acting as an agent for the ward to conduct civil legal acts such as buying and selling, and taking necessary actions on the property; (four) when the legitimate rights and interests of the ward are infringed or there is a dispute with others, to represent him in civil litigation. Accordingly, only when the legitimate rights and interests of the ward are infringed or there is a dispute with others, the guardian can act as a legal agent to represent the lawsuit. However, this case involves the marital rights in personal rights. The law gives citizens autonomy in marriage, and citizens can decide their own marriage problems, which is irreplaceable by others. Otherwise, citizens' marriage rights will be violated. In this case, Tian Xiquan suffered personal injury due to a traffic accident, but his marriage rights were not violated. Tian Xiquan's mother and sister filed a divorce lawsuit in the name of Tian Xiquan, which was beyond the scope of guardianship. Instead of safeguarding Tian Xiquan's marital rights and interests, it violated his marital autonomy and formed an "arranged divorce".
It has been suggested that when a normal person files a divorce lawsuit, the other party is a person with no capacity for conduct, and a legal representative is needed to represent the lawsuit. Isn't the intermediary "arranged divorce"? This is another question that needs to be clarified, which is different from the above question. The legal representative of the defendant is a person without capacity to participate in the proceedings for the purpose of safeguarding the marriage rights, property rights and other rights and interests of the person without capacity. The agent has no right to express his intention on whether the client is divorced, but the people's court makes a judgment on whether to divorce according to the marital status of the parties and relevant laws and regulations. Therefore, the legal representative does not have the problem of infringing or interfering with the marital autonomy of the principal. So there is a clear difference between the two.
Third, the divorce proceedings initiated by others on my behalf do not reflect my will, which is an invalid civil act. The expression of intention to conclude and dissolve a marriage relationship must be carried out by the parties themselves, and no one else has the right to act as an agent. Paragraph 3 of Article 63 of the General Principles of the Civil Law stipulates: "No legal act that should be carried out by myself according to the law or according to the agreement of both parties shall be represented". Article 78 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of Civil Law (Trial) stipulates: "A civil act that must be carried out by myself according to the law or according to the agreement of both parties shall be deemed invalid if it is not carried out by myself." As far as divorce cases are concerned, divorce is a lawsuit involving identity relations. Whether to file a divorce lawsuit is the independent behavior of both parties to the marriage. My expression of divorce intention is an important content of divorce civil legal act. No other person may file a divorce lawsuit on my behalf without my will and authorization. In this case, the act of filing a divorce lawsuit was not carried out by Tian Xiquan himself (which could not be carried out in practice), but by Tian Xiquan's mother and sister without authorization, saying that filing a divorce lawsuit in Tian's name did not reflect Tian's will and was an invalid civil act.
To sum up, divorce is a legal act involving people's identity and must be decided by myself. Because the incapacitated person cannot make such a statement, the incapacitated person cannot be the plaintiff in the divorce proceedings. In this case, because Tian Xiquan's mother is not a legally appointed guardian, she is not a legal representative. She filed a divorce lawsuit in the name of a person without capacity, and she does not have the qualifications of a legal person and a litigant. Therefore, her act of filing a divorce request on behalf of a person without capacity is an invalid civil act, and the people's court should not accept such cases. If the prosecution persists, the people's court shall rule to dismiss the prosecution after accepting it.
Institutional case analysis
Case Brief: On July 10, 2004, Nanjing A Computer Company entrusted Nanjing B Express Company to transport a Toshiba satellite M 10999, and B Express Company lost the above goods. Computer company A has repeatedly asked courier company B to compensate for the loss, but courier company B refused to compensate. So computer company A entrusted Shanghai Guangming Law Firm Nanjing Branch to bring a lawsuit to the court. When the Xuanwu District People's Court of Nanjing tried the case, the defendant admitted that he had lost an item, but firmly denied that the lost item was a laptop. The plaintiff's lawyer immediately asked the defendant whether the two details of the lost goods were XXXX69 1, and the defendant admitted. The content of the express bill is M 18, which means that the first focus of this case should focus on whether M 18 is a laptop. The plaintiff submitted four pieces of evidence to the court, including Wuxi Xunchuang's online order form, Youtong Express Company's freight bill, Company B's XXX691express bill and Wuxi Xunchuang's instructions, which proved that Wuxi Xunchuang ordered 20 ASUS M3 laptops from Company A, and one of them failed to open the box. Wuxi Xunchuang asked Youtong Express to transport this computer to Company A for replacement, and Company A handed it over to Company B for delivery after replacement, but Wuxi Xunchuang. The plaintiff also submitted a telephone recording to the court. In the recording, the legal representative of the defendant admitted that he had lost one of the plaintiff's laptops, but he could not reach an agreement with the plaintiff on compensation. Although the above five items of evidence are indirect, they form a complete chain of evidence, which is enough to prove that the defendant lost a Toshiba Satellite M 18 laptop. During the trial, the defendant also proposed to compensate 200 yuan for each laptop according to the standard specified on the back of the express delivery details sheet. Article 6 on the back of the express delivery list stipulates: "If the transported goods are lost, damaged or lost, compensation shall be made according to the lower of the following standards: (1)200 yuan; (2) The actual value of the goods. " In other words, if the actual value of the lost items is higher than that of 200 yuan, 200 yuan will be compensated; If the value of lost articles is lower than that of 200 yuan, compensation shall be made according to the actual value. The plaintiff demanded compensation of 22 199 yuan according to the actual value of the goods. So the second focus of this case is the standard of compensation. The defendant submitted a newspaper case to the court. In this case, the courier company lost six important documents of the customer, which caused the customer to lose tens of thousands of yuan. Because the customer didn't choose the insured price, the court ruled that the courier company only compensated 200 yuan. The plaintiff believes that the case reported in a newspaper is quite different from this case. In this case, regarding the liability for damage and loss of express mail during transportation, the courier company has formulated two different standards for the shipper to choose: if there is no insured price, the maximum compensation amount is 200 yuan; If the declared value exceeds that of 200 yuan and insured, compensation shall be made according to the actual loss. In this case, the defendant only stipulated a compensation standard in the standard terms, that is, regardless of the insured price, the highest compensation was only 200 yuan. Obviously, it is an invalid format clause that excludes the other party's subject rights and exempts itself from responsibility. The defendant also stated on the back of the express delivery list that the plaintiff had given up the right to claim compensation according to Article 8. Article 8 stipulates: "The shipper shall submit a written application to Company B within 15 days after the goods are damaged or lost, and Company B shall compensate for the losses, otherwise it shall be deemed that the shipper has waived the right to claim compensation." The plaintiff's lawyer believes that this clause is invalid, because it violates the mandatory provisions of China law on the limitation of action. The court of first instance ruled in favor of the plaintiff. Comments: In Zhujiang Road, Nanjing, there are many companies engaged in the sales of computers and other computer products. If the customer is in a foreign country, the sales company will deliver the goods to the customer through the courier company. When filling in the waybill, the staff of both parties often only write the short name of the goods, such as M3, M 18, etc. Even the column "Description of Internal Parts" is blank. Once the goods are damaged or lost, it is difficult for the shipper to prove whether the goods are laptops or other things, thus being at a disadvantage in the lawsuit. Although in this case, the lawyer skillfully used indirect evidence to prove that the lost item was a laptop. However, the author still reminds companies engaged in computer product sales in Zhujiang Road to indicate the full name and model of the goods when filling in the freight bill, such as Toshiba Satellite M 18 notebook computer. The back clause of the consignment note is very important. On the back, courier companies often stipulate some unfavorable terms for shippers, such as compensation limit and claim period. Although the court ruled that the format clauses were invalid in this case, not all the format clauses unfavorable to the shipper were invalid, so the staff must read them carefully.