Mr. Zhao and Ms. Niu got married in 2000 and gave birth to their daughter Xiaohong in 2002. In July 2008, the two parties divorced through court mediation. Mr. Zhao took Xiaohong for paternity test, which proved that Mr. Zhao was not Xiaohong's biological father. Mr. Zhao suffered great physical and mental injuries. In September 2008, he sued the Fengtai District Court in Beijing, demanding that Ms. Niu pay mental damage compensation 200,000 yuan, support Xiaohong 654.38 million yuan and paternity test fee 2,400 yuan. Ms Niu recognized the appraisal conclusion and agreed to pay mental damage compensation and alimony, but she was willing to pay 5,000 yuan.
The court held that after the two parties got married, Mr. Zhao raised Ms. Niu to be pregnant with other people's children and suffered physical and mental damage. Mr. Zhao's request for Ms. Niu to pay mental damages and daughter Xiaohong's support should be supported. The amount of compensation for mental damage and alimony should be determined according to the specific circumstances. Ms. Niu was sentenced to pay Mr. Zhao 30,000 yuan for mental damages, 36,000 yuan for Xiaohong's support and 2,400 yuan for appraisal.
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This case also proves that there are institutional defects in the parent-child relationship in the marriage law, that is, the system of denying children born in marriage.
In real life, there is an interesting phenomenon, that is, all mothers are self-certified, that is, they prove that they are the mother of the child based on the fact that the child was born; But almost all fathers are considered. It is assumed that the man who lived with his mother during her pregnancy is assumed to be the father of the child. If we want to overturn this presumption, we must provide reliable and sufficient evidence to prove that we are not the biological father of the child according to the procedure of denying children born in wedlock. If you can prove it, you can deny the parent-child relationship.
In this case, based on this relationship, Mr. Zhao was presumed to be Xiaohong's biological father, and it lasted for 6 years until the paternity test was conducted after the divorce, which proved that this presumption of paternity was wrong. Ms. Niu approved the non-paternity test, and the presumption of paternity has been overturned, confirming that Mr. Zhao is not Xiaohong's biological father. The marriage law does not stipulate this system, which should be supplemented.
There is another problem involved in this case. During the period of presumed biological father, the presumed biological father was cheated by the biological mother and fulfilled the obligation of raising. What is the nature of this behavior? I once put forward a proposition that this kind of behavior is a fraudulent parent-child relationship and has the nature of tort. The alimony paid by fraud should be returned, and the mental damage caused by fraud should be compensated for mental comfort. In this case, the court decided to pay mental damages and return alimony, which was obviously adopted.
Did Chengdu * * * commit dangerous acts or violate the obligation of safety and security?
Civil litigation court debate case 7
On June 8, 2007, 10, Wang took a car and drove to Chengdu on Chengnan Expressway in Sichuan. When driving for 23 kilometers, a stone falling from the expressway overpass penetrated the windshield and hit Wang's left chest, causing a large area of left chest contusion with epidermal exfoliation, aortic rupture and hemorrhagic shock.
After investigation, there are solid cement guardrails on both sides of the overpass of the incident expressway, and anti-throwing nets are set on the outside of the guardrails on both sides.
After investigation, the public security organs confirmed that three primary school students, including Huang, climbed the cement guardrail in the middle section of the west side of the overpass and squatted on the protective net and billboards. The competition is to see who can throw stones at passing vehicles and hit vehicles heading for Chengdu on the expressway. One of the stones killed Wang.
The public security organ dismissed the case that Huang and others were under the age of 14, had no criminal responsibility, and endangered public safety by dangerous means. Wang's close relatives brought a lawsuit to the court, investigated the tort liability of Sichuan Chengnan Expressway Co., Ltd. and three injurers and their guardians, and assumed joint liability.
The Wuhou District Court of Chengdu held that there was no quality defect in the overpass, and Chengnan Company had fulfilled its corresponding management obligations, and its requirements should not be too harsh and did not constitute tort liability. Three children, including Huang, played on the overpass crossing the expressway and deliberately threw stones at the vehicles driving on the expressway, causing serious consequences for Wang to be hit by stones during riding. Although it is impossible to confirm who threw the stone among the three people, it is one of them, which conforms to the basic characteristics of * * * with dangerous behavior. Therefore, it was determined that Huang and other three people were * * * dangerous, and the six guardians of the three people were sentenced to bear joint and several liability for damages caused by * * *, and compensate the plaintiff for mental damages, death compensation, funeral expenses, etc.
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The focus of the dispute in this case is whether the expressway management institution should bear joint tort liability with the dangerous actor.
The necessary condition for determining that the expressway management agency should bear tort liability is that the expressway management agency has failed to fulfill its safety guarantee obligation for the occurrence of damage and is at fault, otherwise it will not bear tort liability. In this case, in the process of managing the expressway, the expressway management agency did not neglect the safety guarantee obligation, and there was no fault. If it is ordered to bear tort liability, it is unfair and violates the purpose of the principle of fault liability in the Tort Liability Law.
The direct cause of the death of the victim in this case is the dangerous behavior of three minor defendants. It is precisely because the parents of three minors were lax in discipline that they climbed the highway protection net and threw stones for fun, which led to the death of the victims. Although this consequence is not caused by all the actions of three minors, but by one of them, it is impossible to determine who is the real perpetrator, so it constitutes the tort liability of the same dangerous act. In this regard, the court ruled that the guardians of three juvenile offenders bear joint and several liability for compensation, which is in full compliance with the law. In the case that the plaintiff sued different defendants and the case was complicated, it was successful and fair for the court to apply the law to determine the real cause of infringement and accurately determine the tort liability.
In Chongqing, it is impossible to find out the perpetrator of the fork stick from the sky.
Civil litigation court debate case 8
On the morning of1October, 2008 1 1, Yuan and her husband Ling Yong, 2 1 year-old, were standing in front of their department store booth. Suddenly, a fork for drying clothes fell from the street upstairs and stuck it on Yuan's head. The fork roller is about half a meter long, the whole? y？ The zigzag iron fork has fallen into the skull. After the hospital ambulance arrived at the scene, the doctor took off the bamboo pole of the fork stick, leaving only the iron fork on his head and took Yuan to the hospital. After the rescue, Yuan was out of danger, but the injury was serious and he was recovering. After the incident, the police station of the police station rushed to the scene of the incident, blocked the scene and extracted evidence. After many comparisons, the criminal investigation technical department could not find clues to solve the case and could not determine the perpetrators. Since Yuan was killed, the perpetrators have never appeared again. Ling Yong sued the court on behalf of the victim, and collectively sued the owner of 97 households 126, Building 2, Yuzhou New Town, suspected of causing the accident, demanding compensation. All the defendants were afraid. Call the police. Emergency rights meeting? Advise the perpetrators to surrender voluntarily, and other owners will help each other and seek evidence to prove that they are not responsible. The case is currently under trial.
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This is a typical tort liability for damage caused by high-altitude parabolic objects, and the focus of the dispute is to safeguard which side's fairness.
The earliest case of this kind also happened in Chongqing, where someone threw an ashtray on a tall building, causing injuries to passers-by downstairs. The court ruled that more than 20 households in the building that may cause damage are jointly and severally liable to the victims. Later, a woman in Jinan was killed by a chopping board thrown upstairs and sued 56 residents of the building for compensation, which was rejected by the court.
Both judgments have their own reasons, and there are people who support and oppose them. Both supporters and opponents emphasize fairness, but their positions are different.
In the process of formulating the Tort Liability Law, there are also two completely different positions on whether and how to stipulate specific rules for this kind of tort. If it is based on the fairness of the victim's relief, it is considered that the victim's damage should be borne by the person who may cause the damage; If it is based on fairness to the responsible person, there is no evidence that most people are harmful, and it is even more unfair to let them take responsibility. In the continuous discussion, opinions are concentrated, and tend to stipulate in the Tort Liability Law that if an object thrown from a building or an object falling from a building causes damage to others, and it is difficult to determine the specific perpetrator, in order to protect the legitimate rights and interests of the victim, the user of the building who may have caused the damage shall be liable for compensation on the basis of fair liability, rather than being recognized as tort liability, let alone joint liability. Such a rule is to highlight the fairness of the victim and make the victim's damage get relief. I chose this case to comment, precisely to illustrate the views in this legislation.
When I visited this kind of infringement in Germany, the Netherlands and other countries, their judges and scholars expressed surprise, on the grounds that how can residents living in high-rise buildings be so irresponsible? In contrast, does our national quality need to be further improved? In particular, the perpetrators should be brave enough to take responsibility, and don't blame others for the damage caused by their own mistakes!
Xinyu relatives law urgently needs to stipulate the compulsory claim right.
Civil litigation court debate case 9
In July 2006, Li Yu, the mother of plaintiff Li Xiao, went to work in Xinyu City from the countryside and met Wang Feng. They fell in love and lived together. After living together for a year, Li Yu became pregnant because of the personality differences between the two sides. Li Yu repeatedly asked Wang Feng to marry him, or to give child support at one time, but Wang Feng refused.
In April 2008, Li Yu gave birth to her daughter Li Xiao, obtained a birth certificate, and continued to demand alimony from Wang Feng, but Wang Feng refused to pay the fee on the grounds that Li Xiao was not his own. In July 2008, Li Yu sued in the name of Li Xiao, demanding that Wang Feng pay alimony and apply for paternity test. After accepting the case, the Yushui District Court of Xinyu City, Jiangxi Province found Wang Feng many times, hoping that he could cooperate with the paternity test to find out the facts, but Wang Feng refused many times.
The court held that the plaintiff's request to confirm the parent-child relationship with the defendant could not be applied? Who advocates, who gives evidence? According to the general rules of proof, both the defendant and the defendant in this case have the burden of proof, that is, the obligation of paternity test. The plaintiff has provided the hospital birth certificate and other supporting materials, completed the burden of proof equivalent to his request, and requested paternity test. When the burden of proof changes, the defendant should bear the burden of proof, but the defendant does not agree to the inspection and cannot provide other evidence to refute the evidence. Although the court may not force him to do so, the defendant should bear the legal consequences of not providing evidence. Therefore, according to the law, the defendant Wang Feng was presumed to be the father of the child, and 200 yuan maintenance was paid to Li Jiao every month.
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This case once again proves the lack of the kinship system in China's marriage law, that is, the system of claiming illegitimate children. In terms of parent-child relationship, the marriage law still lacks the system of denying children born in wedlock and recognizing children born out of wedlock. These parent-child relationship systems are not stipulated in the marriage law and must be supplemented.
In this case, Li Yu lived with Wang Feng, and after breaking up, she found herself pregnant and gave birth to Li Xiao. Li Yu believed that Li Xiao and Wang Feng were father and son, and provided corresponding evidence. Wang Feng denied it, but did not agree to the paternity test. In this case, according to the evidence law of the burden of proof, the court decided that Wang Feng, who bears the burden of proof, should bear the consequences of his failure to prove, presumed the parent-child relationship, and confirmed his maintenance obligation, which was fair and safeguarded social justice. This judgment is completely correct.
From another point of view, in the kinship law system, children born out of wedlock need to go through the claim procedure to determine the parent-child relationship. Children's right of claim can be divided into arbitrary right and compulsory right of claim. What's the arbitrary statement? Looking for relatives? Find your own parent-child claim to confirm the parent-child relationship. The object of compulsory claim is Feng, who denies paternity, but it has been proved that he is the biological father of the claimed person. The court decided to confirm the parent-child relationship and let him bear the parent-child responsibility. The judgment in this case presumes that Wang Feng is Li Xiao's biological father and undertakes the obligation to pay alimony, which is actually the application of the compulsory claim rule, but there is no such provision in China's marriage law. Studying civil law? When compiling the law of relatives, it must be supplemented to meet the urgent needs of the judiciary.
Beijing's "donkey friends" have no reason to take risks at their own risk.
& gt& gt& gt On the next page, there are more exciting cases of civil court debate.