Civil appeal 1
Appellant (plaintiff in the original trial): Yu Moumou, female, Han nationality, born on a certain day of a certain year, unemployed, living at a certain street in Pukou District, Nanjing.
Appellee (defendant in the original trial): Chen Moumou, female, was born on a certain day, a certain month, a certain ballroom owner in a certain town of Jiangpu County, and lived in a certain road in a certain district of a certain city.
The appellant refused to accept the civil judgment of Nanjing Pukou District People's Court (2003) PuminyichuziNo. xxxx 165438+ 10/4. 1482, appeal now.
Appeal request:
1. Request the people's court of second instance to cancel the judgment of second instance of the court of first instance according to law, and order the appellee to pay RMB 100000 yuan to the appellant.
2. The appellee shall bear all the litigation costs for changing the original judgment according to law.
3. All the litigation expenses of the second instance shall be borne by the appellee.
Facts and reasons:
The court of first instance made a wrong judgment, which belongs to improper application of law.
The appellant has no objection to the court of first instance finding that the transfer agreement between the appellant and the appellee is invalid, and the property acquired by the parties as a result of the transfer agreement should be returned, but it is unacceptable that the court of first instance should return the rights it holds according to law.
The court of first instance thinks? The house lease right obtained by the plaintiff Yu Moumou based on the house lease agreement signed with Jiangpu County Material Recycling Company should also be returned to the defendant Chen Moumou. Now the plaintiff Yu Moumou refused to restore the house to its original state and returned the lease right to the defendant Chen Moumou. The defendant's defense was established.
The plaintiff asked the defendant Chen to return the transfer amount of 100000 yuan, which was not supported by our court. ?
The Appellant believes that the Appellee has lost the right to lease the house to Jiangpu County Material Recycling Company (hereinafter referred to as the Material Company), and the dissolution of the lease relationship between the Appellee and the Material Company is the result of autonomy of will, and the act of signing a house lease agreement with the Material Company is also the result of autonomy of will of both parties, and no one can control or interfere with anyone's behavior.
The court of first instance held that the essence of the appellant's returning the lease right to the appellee was illegal interference with the freedom of contracting between the appellant and the material company, that is, autonomy of will, which was intended to deny the existing civil legal relationship between the two parties.
The appellant legally occupies the leased house, and this right is legal and legitimate, and it was obtained according to law; It is a right that should be protected by law, and illegal interference is not allowed at all.
The acquisition and loss of any right is based on the existence of corresponding legal acts (legal facts), and what kind of legal acts (legal facts) will have corresponding rights.
Lease right is no exception.
In this case, the appellee's dissolution of the lease relationship with the material company means that the appellee has lost the lease right, that is, the appellee no longer enjoys any rights to the leased property (house) and does not have to undertake any obligations to the leased property.
And the appellee also made it clear in the trial of the court of first instance that the lease contract signed by the appellant and the material company had nothing to do with it.
The appellant signed a lease contract with the material company, which means that the appellant obtained the lease right.
At present, the court of first instance holds that the appellant's legally acquired rights should be returned to people other than the parties to the contract, and the reasons for the judgment are obviously untenable, which violates the principle of relativity of the contract.
Furthermore, the object of return in the civil liability for returning property established in China's Contract Law and General Principles of Civil Law refers to property, and the returned property should refer to tangible things, not intangible things.
Obviously, the lease right is only a kind of real right, not the real right itself. Of course, it can't be counted as tangible things, so it's not physical.
Therefore, the return of property should be in kind, and it does not involve the right to leave the object itself.
This is mainly because the property right (real right) is a right formed on the basis of legal possession of property (things). When it is separated from the minimum premise of legal possession of property, the right is simply a non-existent and nihilistic right.
This is called: the skin does not exist, how can the hair be attached? To say the least, whether the leased house involved in this case can be restored to its original state after being renovated by the appellant.
On this issue, both the appellee and the court of first instance believe that the appellant should restore the house to its original state.
The appellant thinks that this is obviously not desirable, and this practice obviously treats the appellant as the Monkey King and can change things at will, which is simply ridiculous! Again, what is the original state? Objectively, this does not conform to the principles of economics; In fact, this is imposed on others.
It is impossible for the appellant to restore the house to the state before renovation.
The appellant believes that the court of first instance allowed the appellant to restore the house to its original state as a defense that the respondent did not pay the appellant100000 yuan, which actually prevented the appellant from returning100000 yuan! Don't say100000, even the appellant won't take a penny.
This is robber logic.
This is obviously contradictory to the statement in the judgment of the court of first instance that the appellee should return the transferred money to the appellant.
Furthermore, from the time of the appellant's prosecution to the judgment of the court of first instance, the appellant never had the intention of seizing the appellee's property, and made it clear that all the existing equipment, that is, the equipment listed in the list, could be returned, actually including the relevant business license.
(even the house itself, but the appellee insisted on the appellant's restitution, which made the appellant feel unrealistic and finally did not agree.
In this sense, the court of first instance has no reason to let the appellee not even give the appellant a penny.
What's more, the appellee just didn't agree to the full refund, and didn't say that he didn't want to give the appellant any money (see the penultimate line on page 6 of the trial transcript of the original trial).
According to the above preliminary analysis, it has been shown that the judgment of the court of first instance is completely wrong.
Therefore, the appellant appealed to your hospital in accordance with the provisions of Article 147 of the Civil Procedure Law of People's Republic of China (PRC), requesting the people's court of second instance to make a judgment according to law!
I am here to convey
Nanjing Intermediate People's Court
Appellant: Yu Moumou.
Xxxx year 65438+February 1.
Civil appeal ii
Appellant (defendant in the original trial): Wang Moumou, male, Han nationality, born in June xxxx, lives in the residents' neighborhood committee of Donggou Town, Funing County.
Appellant (defendant in the original trial): Zhuang Moumou, female, Han nationality, born in February of xxxx, living in Wangma Village, Wei Zhuang Township, Siyang County.
Appellee (plaintiff in the original trial): Shi Moumou, male, Han nationality, born in May of xxxx, living in Xihu Neighborhood Committee of Zhongxing Town, Siyang County.
Appellee (plaintiff in the original trial): Zhang, female, Han nationality, born in April xxxx, lives in Xihu neighborhood committee of Zhongxing Town, Siyang County.
The appellant refused to accept the civil judgment (20 1 1) of the people's court of Siyang county, Jiangsu province, because of the dispute over the house sales contract, and now he filed an appeal according to law.
Appeal request:
1. We request your hospital to cancel the third item of the civil judgmentNo. * * of the People's Court of Siyang County, Jiangsu Province (20 1 1) and change the appellee's liability for breach of contract according to law.
2. The legal fees of first instance and the appeal fees shall be borne by the appellee.
Facts and reasons:
The case of the dispute between the Appellant and the Appellee over the house sales contract was tried by the People's Court of Siyang County, Jiangsu Province, and a civil judgment of (20 1 1) Siminchuzi No.206 was made. * * Published. The appellant thinks that the judgment is a wrong civil judgment, which damages the appellant's legitimate rights and interests, so the appellant appeals according to law.
First, the court of first instance ignored the fact that the appellee failed to perform his obligations in accordance with the agreed payment method, which was an error in ascertaining the facts.
It was found through trial that the plaintiff Shi Moumou and Zhang Moumou brought the balance to Siyang County * * * Housing Replacement Co., Ltd. on June 7 and June 20, 201year and paid it to the defendants Wang Moumou and Zhuang Moumou.
Defendants Wang Moumou and Zhuang Moumou refused to accept and assist, and the plaintiff handled the house transfer procedures. In fact, the appellee never indicated that he would pay the final payment of the house purchase to the appellant, nor did he remit money to Wang's account in the way agreed by both parties to fulfill the payment obligation, which constituted a breach of contract.
Both parties signed a house purchase and sales contract in May 1 1, and paid RMB 45,000 yuan and RMB 50,000 yuan (* * * 95,000 yuan) to the account of Wang's Construction Bank twice on the same day.
As both appellants are working in other places, both parties agreed that Wang Moumou would open a special bank account so that the appellee could directly pay the balance of the house purchase. According to the agreement, Wang Moumou opened an account in the Postal Bank on May 3, 20 1 1 and notified the appellee.
However, up to now, neither Wang's construction bank account nor his postal bank account has received the balance of the house purchase payment paid by the appellee, nor has he received any notice from the appellee.
The appellee's refusal to pay the balance of the house purchase as agreed in the contract has constituted a breach of contract and should bear the liability for breach of contract according to law.
We have noticed that the first paragraph on page 3 of the first-instance judgment? In the lawsuit, the plaintiff claimed that the remaining house payment of 245,000 yuan was paid together with the defendant's delivery? .
This sentence clearly tells us that the appellee has always refused to pay Wang Moumou and Zhuang Moumou, and is still unwilling to take the initiative to fulfill the payment obligation during the trial.
According to the provisions of Articles 60, 61 and 62 of the Contract Law, the appellee shall fully fulfill the obligation of payment, directly remit the money to Wang's bank account as agreed, and fulfill the obligation of notification.
According to the trading habits and well-known facts, after the buyer has fulfilled the payment and notification obligations, the seller has fulfilled the corresponding house delivery and assisted in the transfer procedures.
To say the least, even if there is no order of performance, when the buyer refuses to pay the price, the seller still has the right of defense to perform at the same time and has the right to refuse the corresponding performance requirements.
Now the buyer does not take the initiative to fulfill the obligations in a way conducive to the realization of the contract purpose, but instead bites back and demands the seller to bear the liability for breach of contract on the premise that it has already constituted a breach of contract, which not only violates the relevant provisions of the law and the principle of good faith, but also violates the trading habits and well-known facts. I hope that the court of second instance can find out and identify it.
Second, the court of first instance ignored the fact that the appellee violated the general trading habits, the agreement of both parties and the experience of daily life, and did not exclude this group of evidence according to the rules of evidence.
In the second paragraph of page 3 of the judgment of first instance, the house sales contract signed by the original and the defendant, the house sales contract of Siyang County and the certificate of Siyang County * * * Housing Replacement Co., Ltd. were confirmed.
? Among them, the House Purchase and Sales Contract and the Siyang County and Village House Purchase and Sales Contract can prove that the appellee should pay off the balance before June 20, but it is not stipulated that the appellant should complete the house delivery and assist in the transfer formalities before June 20.
Of course, the appellant has always followed the principle of good faith to achieve the purpose of the contract and urged both parties to fully fulfill their obligations, but the appellee refused to fulfill the payment obligation, which made the purpose of the contract impossible to achieve.
On the premise of the appellee's breach of contract, the court of first instance talked to itself on the basis of evidence, and imposed on the appellant the obligation that delivery and assistance in handling the transfer should precede payment, which violated the provisions of facts and laws.
In addition, the court of first instance found that the evidence provided by Ni Mou of Siyang County * * * Housing Replacement Co., Ltd. violated the objective facts and the relevant provisions of the law. Because the agency fee needs to be paid by the appellee to the manager of the company, Ni has a closely related interest relationship with the appellee. According to the Civil Procedure Law and the Supreme People's Court's regulations on evidence in civil proceedings, witnesses should testify in court and accept inquiries from both parties and the court.
The identification of evidence should also verify the authenticity of its contents, and whether the witness or the person providing evidence has an interest with the party concerned.
What are the certification records issued by Ni Wei of Siyang County * * * Housing Replacement Co., Ltd. on June 7, 20 10 and June 20, 20 10? 20 1 1 On June 7th, 2008, Mr. and Mrs. Shi and Mr. Zhang came to our company with RMB 245,000.00 Yuan to ask for a real estate transaction with Mr. and Mrs. Wang and Mr. Zhuang. ? However, when the appellee paid 45,000 yuan for the first time, he also paid 50,000 yuan for the second time. Even if the appellee saw these two certificates, it would be ridiculous. When both parties habitually pay by bank remittance and both parties agree that the appellant will open a special bank account to pay the balance of the appellee,
In the case of daily life experience and well-known remittance, the appellee demanded that the transaction be made in cash of 245,000 yuan, which obviously violated the trading habits of both parties, the agreement of both parties, the daily life experience and well-known facts. All false certificates issued by Ni Mou of Siyang County * * * Housing Replacement Co., Ltd., which is closely related, should be excluded according to law.
To sum up, the appellant filed an appeal in accordance with the provisions of Article 147 of the Civil Procedure Law, requesting the court of second instance to revoke the third item of the first-instance judgment according to law and judge the appellee to bear the liability for breach of contract according to law.
I am here to convey
Suqian Intermediate People's Court Source: Suqian Xu Shoubo Lawyer Network
Appellants: Wang Moumou and Zhuang Moumou.
Xxxx year1October 7th.
Civil appeal 3
Appellant: XXX (specify name, gender, age, nationality, place of origin, occupation or work unit, position, address and telephone number).
Authorized Agent: XXX (specify name, gender, age, nationality, native place, occupation or work unit, position, address and telephone number).
Appellee: XXX (specify name, gender, age, nationality, native place, occupation or work unit, position, address and telephone number).
The appellant refused to accept the judgment made by the court on _ _ _ _ _ _ _ _ _ _ _ _ _.
Appeal request:
(including the request for cancellation or partial change of the original judgment).