Please answer:
(1) Is the statement of the store clerk B correct? Why?
(2) What should Consumer A do?
(1) The statement of the store clerk B is incorrect. Because according to the provisions of Article 45 of the Law on the Protection of Consumer Rights and Interests, the operator shall be responsible for repairing, replacing and returning the goods stipulated by the state or agreed by the operator and the consumer. If it cannot be used normally after two repairs within the warranty period, the operator shall be responsible for replacement or return. For large commodities that are guaranteed to be repaired, replaced or returned, if consumers ask the operators to repair, replace or return, the operators shall bear reasonable expenses such as transportation. It can be seen that the statement that Shop Assistant B claimed that "our store expressly stipulates that all household appliances purchased in our store can only be repaired and cannot be returned if there is any problem" is incorrect.
(2) According to Article 34 of the Law on the Protection of Consumers' Rights and Interests, disputes over consumers' rights and interests between Consumer A and the operator's shopping mall can be resolved through consultation with the operator, requesting mediation from the consumer association, appealing to the relevant administrative departments, submitting for arbitration, and bringing a lawsuit to the people's court. In addition, according to Article 35 of the Law on the Protection of Consumer Rights and Interests, consumer A can claim compensation from the shopping mall: if consumer A causes personal or property damage due to commodity defects, he can claim compensation from the seller or producer.
12 Wang, Xiao plan to set up a limited liability company to produce gas appliance. After consultation, the three men drafted the articles of association, including the following contents:
(1) The registered capital of the company is RMB 300,000.00 Yuan;
(2) Wang contributed 20,000 yuan in cash, 80,000 yuan in machinery and equipment, and 200,000 yuan in general non-patented technology;
(3) The company does not set up a shareholders' meeting, and implements the general manager responsibility system under the leadership of the board of directors;
(4) When the company needs to carry out business, it shall set up a branch company, which has the legal person status, operates independently and is responsible for its own profits and losses.
Q: Which of the above contents does not comply with the provisions of the Company Law? Why?
(1) The registered capital of a company mainly engaged in production and operation shall not be less than 500,000 yuan.
(2) The amount of non-patented technology shall not exceed 20% of the registered capital of the company, and the price of Xiao's non-patented technology has exceeded this limit.
(3) The shareholders' meeting is the legal institution of a limited liability company and should be established according to law.
(4) In law, a branch company has no legal person status, and its civil liability shall be borne by the head office.
13 On March 20th, 2003, Ms. Wang bought a rice cooker in Sheng Xing Shopping Mall in this city. On the same day, Ms. Wang was injured by electric current due to electric leakage during the normal use of the rice cooker. Although she was treated in time, her fingers were still disabled. April 2, 2004. Ms. Wang told the court about the mall and asked the court to order the mall to be liable for compensation for her disability caused by electric shock. Sheng Xing Shopping Mall said in its defense: First, according to the General Principles of Civil Law, the limitation period for claiming personal injury compensation is 1 year, so the plaintiff's prosecution has expired; Second, the plaintiff got an electric shock because there was a quality defect in the rice cooker, and the defendant was not at fault as a product seller, so the plaintiff had no right to ask Sheng Xing Shopping Mall to bear the liability for compensation. We should claim compensation from Dongfeng Electric Appliance Factory, which produces rice cookers. The court held that the defendant's two defense reasons were not established, and finally Sheng Xing Shopping Mall lost the case.
Q:
(1) Why didn't the first defense of the defendant Sheng Xing Shopping Mall hold water?
(2) Why is the second defense of the defendant, Sheng Xing Shopping Mall, not established?
(3) What kind of liability should the defendant Sheng Xing Shopping Mall bear?
(4) If it is determined that the electric leakage of the rice cooker is caused by the design and manufacturing process defects of the product, Sheng Xing Shopping Mall will make compensation. What rights do you have to Dongfeng Electric Appliance Factory?
(1) The Product Quality Law stipulates that the litigation period for claiming damages due to product defects is two years, counting from the time when the parties know or should know that their rights and interests have been damaged. Ms. Wang filed a lawsuit after the damage of 1 year, which did not exceed the statute of limitations.
(2) The Product Quality Law stipulates that if a product defect causes personal injury or property loss, the victim may claim compensation from the product producer or product seller. Sheng Xing Shopping Mall belongs to the seller of rice cookers. As a victim, Ms. Wang has the right to claim compensation from her.
(3) According to the product quality law, the rice cooker mall should compensate Ms. Wang for medical expenses, income reduced due to missed work, living allowance for the disabled and other expenses.
(4) The Product Quality Law stipulates that if the responsibility for personal injury and property loss caused by product defects belongs to the product producer, if the seller compensates, the seller has the right to recover from the producer. Therefore, after compensation, Sheng Xing Mall has the right to claim compensation from the manufacturer who designed and manufactured the rice cooker.
14 Sun and Lin are directors of Shengli Dairy Co., Ltd. (hereinafter referred to as Shengli Company). In May 2002, Sun Mou and Mou Lin, together with Zhang and Wang, set up a cold drink factory outside their company. The main products of this cold drink factory are yogurt and ice cream, which are the same as those of Shengli Company. In April 2004, Shengli Company discovered this situation. The extraordinary shareholders' meeting of the company decided to remove Sun and Lin from their posts as directors, and brought a lawsuit to the court, requesting the court to order Sun and Lin to compensate for the losses. After investigation, Sun and Sun earned a total of 250,000 yuan in operating the cold drink factory.
Q:
(1) What legal provisions did Sun Helin violate?
(2) How should the court decide?
(3) Is it legal for Shengli Company to dismiss Sun and Lin as directors? (1) The actions of Sun Mou and Mou Lin violated the provisions of the Company Law that directors and managers should not run the same business for themselves or with others in the company where they work.
(2) The court should order Sun and Lin to earn 250,000 yuan from running the cold drink factory owned by Shengli Company.
(3) It is legal for Shengli Company to dismiss Sun Mou and Mou Lin as directors. According to the provisions of the Company Law, Sun Mou and Mou Lin may be given disciplinary sanctions for the above-mentioned illegal acts, in addition to their income belonging to the company.
/kloc-in may of 0/5, a city post office posted a notice in its business hall, stipulating that all users who installed telephones by the city post office would purchase telephones from the city post and telecommunications equipment company. At the same time, users must pay the telephone bill first, otherwise they will not go through the installation procedures. After the notice was implemented for a period of time, the relevant departments received reports from users and investigated this behavior of the post office. After investigation, it was found that the city post and telecommunications equipment company is a subordinate enterprise of the city post and telecommunications bureau.
Q:
(1) What kind of illegal behavior does the post office have?
(2) Why is this behavior prohibited by relevant laws?
(3) Which institutions should supervise and inspect such illegal acts?
(4) How should the supervision and inspection departments handle this illegal act of the post office?
(1) The behavior of the post office belongs to the compulsory transaction of public enterprises.
(2) This kind of behavior is prohibited by China's Anti-Unfair Competition Law, because it restricts the free choice of users and consumers, completely excludes other operators who produce the same commodity from a specific market, and hinders the normal operation of the market fair competition mechanism.
(three) the provincial or municipal administrative department for Industry and commerce is responsible for supervision and inspection.
(four) ordered the post office to stop the illegal act, and impose a fine of 50 thousand yuan to 200 thousand yuan according to the circumstances.
16 The state-owned enterprise Torch Chemical Plant and another state-owned enterprise, Mars Chemical Raw Materials Factory, decided to take the initiative to rebuild the joint stock limited company. According to the articles of association of a joint stock limited company, the registered capital of the company is RMB 50 million. Torch Chemical Plant is funded by workshop, machinery and equipment, and land use right, with an estimated price of 4 million yuan; Mars chemical raw materials factory invested raw materials and workshops, and the estimated price was 2 million yuan. In addition, Torch Chemical Plant is also funded by its trademark and patented technology, which is assessed as 1 1 10,000 yuan, and the patented technology is not high-tech. The company will be established by raising funds. Except for the shares subscribed by the promoters in accordance with the regulations, the rest of the shares are ready for public offering.
Try to analyze:
(1) Does the sponsor have a quorum?
(2) Does the registered capital of the company reach the statutory minimum?
(3) Does the sponsor's investment comply with the law?
(4) Does the public offering of shares comply with the provisions of the Company Law?
(1) The promoters meet the quorum. When a state-owned enterprise is transformed into a joint stock limited company, the number of promoters may be less than five, but it shall be established by offering.
(2) The registered capital of the company reaches the statutory minimum (100000 yuan).
(3) There are two places where the promoters' capital contribution does not comply with the legal provisions: ① The shares subscribed by the promoters are not less than 35% of the total shares of the company, and the contribution of Torch Factory and Mars Factory I * * * is 654,387,000 yuan, which does not reach 35% of the total shares (share capital); (2) the torch factory trademark and patent price 1 1 ten thousand yuan, more than 20% of the registered capital of 50 million yuan.
(4) The establishment of the company by the promoters through public offering of shares conforms to the provisions of the Company Law. However, due to the fact that the shares subscribed by the promoters did not reach the legal proportion, the proportion of shares offered to the public did not comply with the law.
17 A factory developed the H-type high-voltage switch on 200 1, filed a patent application with China Patent Office on 1 in 2002, and obtained the patent right of utility model in May 2003. In July of 200 1 year, the H-type high-voltage switch was also developed by Factory B.. Factory B had produced 80 H-type high-voltage switches before the end of 200 1 year, and began to sell them in the market in March 2002. In 2002, Factory B produced 70 H-type high-voltage switches. At the beginning of 2003, after discovering the sales behavior of Factory B, Factory A negotiated with Factory B, but Factory B thought that its behavior did not constitute infringement.
Please analyze the following questions according to the above materials:
Does factory B infringe the patent right of factory A? Why?
Factory B did not infringe the patent right of Factory A ... Paragraph 2 of Article 63 of the Patent Law stipulates that if the same product has been manufactured, the same method has been used or necessary preparations have been made for its manufacture and use before the patent application date, and it continues to be manufactured and used only within the original scope, it will not be regarded as infringement of the patent right.
18 Amy's fashion shop thinks that men's three-button suits and plaid ties will be the popular trend of men's clothing in 2003, that is, it will borrow 800,000 yuan from the local industrial and commercial bank at the end of 2002 and order a batch of men's three-button suits and plaid ties from a joint venture clothing factory. The cost price of a suit is 800 yuan/piece, and the cost price of a tie is 180 yuan/piece. China Industrial and Commercial Bank and Aimei Fashion Store agreed in the loan contract that the loan period is six months, from February 30, 2002 to June 30, 2003, when the principal and interest are due; Overdue repayment, in accordance with relevant laws and regulations to bear the liability for breach of contract. In addition to repayment of principal and interest, penalty interest shall also be charged. At the beginning of 2003, as expected, three-button suits and plaid ties were popular in the market. During New Year's Day and Spring Festival, most of the goods imported by Amy Fashion Store have been sold, with sales reaching 650,000 yuan. After the Spring Festival, suit sales entered the off-season of the market. After February, almost no one cares about suits and ties. It is mid-June 2003, and the repayment period of bank loans is coming soon. However, the owner of Amy's Fashion Store decided to reduce the price for promotion: the price of each suit was 788 yuan, and the price of each tie was 168 yuan, which was lower than the cost. A week later, Amy's fashion shop sold out the remaining suits and ties and finally paid off the loan on schedule. During Amy's price reduction promotion, customers in other clothing stores decreased greatly because the price of suits and ties was higher than Amy's. Therefore, clothing stores have accused Amy's fashion shops of selling at a price below cost and crowding out their peers. Some clothing stores also complained to the municipal administrative department for industry and commerce, demanding to deal with the unfair competition behavior of Amy's fashion shop at low prices.
Please answer:
(1) What are the characteristics of unfair competition in which operators sell goods at a price lower than the cost for the purpose of crowding out competitors?
(2) Under what circumstances does selling below cost not belong to unfair competition?
(3) Does Amy's promotion below cost constitute unfair competition?
(1) The characteristics of unfair competition behavior in which the operator sells goods at a price lower than the cost for the purpose of crowding out competitors are as follows: ① the main actor is the operator who is in a sales position in market transactions; (2) The operator has subjective intention to implement this behavior, and its purpose is to crowd out competitors; (three) the operator has implemented the act of selling goods below the cost.
(2) Under the following circumstances, selling below cost is not an act of unfair competition: ① selling fresh goods; (2) Handling the goods that are about to expire or other overstocked goods; (3) seasonal price reduction; (4) Selling goods at reduced prices due to paying off debts, changing production or closing business.
(3) Amy's promotion below cost does not constitute unfair competition, because the purpose of price reduction is to pay off bank loans rather than crowd out other competitors.
19 a factory stipulates that maternity leave for female employees is 70 days. Among them, 10 days before delivery and 60 days after delivery; Living expenses during maternity leave 100 yuan. Li, a female worker in our factory, asked for early maternity leave on March 20 and March 5, 20065438+0, but the factory postponed the holiday to March 10 on the grounds that it did not meet the factory regulations. On March 20th, Li gave birth to twins as scheduled, and then rested at home. On May 18, the factory informed Li to go to work the next day. However, due to the slow recovery, Li did not return to work until early June. The factory deducted part of Li's salary on the grounds that he violated the factory regulations. Li refused to accept, so he complained to the local labor dispute arbitration Committee and asked for a replacement salary.
Try to analyze: (1) What are the practices of the factory that do not conform to the provisions of the labor law? Why?
(2) How long should Li enjoy maternity leave? Why?
(3) How should the Arbitration Commission decide?
(1) The rules and regulations of this factory do not conform to the provisions of the labor law, nor does the factory refuse Li's request for leave and deduct part of Li's salary. Because the "Regulations on Labor Protection of Female Employees" stipulates that maternity leave for female employees is 90 days, including prenatal 15 days and postpartum 75 days, and wages will be paid as usual during maternity leave.
(2) According to the above regulations, in case of multiple births, the maternity leave will be increased by 15 days for each additional baby. Therefore, liying enjoys 105 days maternity leave.
(3) The labor dispute arbitration committee should support Li's claim and order the factory to pay back the wages.
A petrochemical dye factory and sulfuric acid factory in 20 A county discharged acid-containing wastewater into a river not far from its factory through its sewage pipe for a long time, and the river water flowed into Jinghua Lake in B county. In the first half of 2003, due to the long-term drought and no rain, the water level of the lake dropped, but the acid-containing wastewater discharged by the factory did not decrease, resulting in the acidity of the lake. Zhou Zhou, a villager in Zhoulou Village, B County, contracted to raise fish on the lake for many years, and there has been no large number of dead fish. But since June 2003, there have been more and more dead fish floating on the water. The environmental protection department monitored the lake water, and the pH value was 4.8. The dead fish was analyzed and the conclusion was that it died of acid water corrosion. Approved by the fishery administrative department of county B, the dead fish caused a direct economic loss of 250,000 yuan. Zhou found two sewage units along the river, petrochemical dye factory and sulfuric acid factory, and asked them to compensate for the loss of dead fish, which was rejected. So Zhou filed a lawsuit with the people's court of county B. During the trial of this case, the defendant Petrochemical Dye Factory submitted a monitoring report issued by a county environmental protection bureau that the pH value of its discharged wastewater met the discharge standard, and thought that it should not be liable for compensation for polluting dead fish. The sulfuric acid plant believes that although the wastewater discharged by itself does not meet the discharge standards, it has paid the excessive sewage charges to the environmental protection department and should not be liable for damages. However, the People's Court of County B still ruled that the petrochemical dye factory compensated the plaintiff for 6,543,800 yuan and the sulfuric acid factory for 6,543,800 yuan.
Q: (1) Should Zhou submit other relevant evidence to the people's court in the lawsuit, and why?
(2) Does the excuse of petrochemical dye factory make sense? Why?
(3) Does the excuse of the sulfuric acid plant make sense? Why?
(1) There is no need to submit other relevant evidence to the people's court. Because environmental civil litigation implements the principle of inversion of burden of proof.
(2) The excuse of petrochemical dye factory cannot be established, because in environmental civil litigation, as long as the behavior has harmful consequences, even if the behavior is legal, it will bear civil liability.
(3) The excuse of the sulfuric acid plant cannot be established either, because paying the sewage charges cannot exempt it from the liability for compensation for pollution damage. If the existing damage occurs, you still have to bear legal responsibility.