In this case, the defendant Zhao and the victim Qian are in partnership (there is no creditor-debtor relationship between the two parties). On May 23rd, 2009, Zhao transferred the deposit of RMB 90,000 from Qian's bankbook to his account by technical means (no cash was taken out). After learning the truth from the bank, Qian asked Zhao to pay himself 90 thousand yuan.
On June 26 of the same year, after Zhao invited Qian to the pump house on the west side of a bridge, the two had an argument. Zhao suddenly killed people, suddenly grabbed Qian's neck and licked Qian's nose and mouth, causing Qian to be in a coma. Zhao thought the money was dead, so he tied up the body of the money and threw it into the river.
In the early morning of June 28th, Zhao put a threatening letter at Qian's door, falsely claiming that Qian had been kidnapped, and asked Qian's wife (a cashier in a state-owned enterprise) to take 200,000 yuan to a bridge to redeem people. If you call the police, the money will die. Sun didn't dare to call the police, but he only had 30,000 yuan in his hand, so he took out 1.7 million yuan from the safe before going to work and hurriedly remitted 200,000 yuan to a bridge. After receiving 200,000 yuan, Zhao claimed that Sun could see her husband in two hours.
On the afternoon of 28th, Qian's body was found (it was identified that Qian drowned). Feeling that the crime would be exposed sooner or later, Zhao surrendered himself to the public security organ on the 29th, truthfully confessed all the above-mentioned criminal facts, and handed over the 200,000 yuan extorted to the public security personnel (the public security personnel returned 200,000 yuan to Sun, and Sun returned 6,543,807 yuan to the company on August 3rd). Li, a police officer, listened to Zhao's confession and casually said, "Your crime is not light." Zhao was afraid of being sentenced to death and fled to other places. In the process of being wanted, Zhao became seriously ill and had no money for treatment. He surrendered himself to the local public security organ and confessed all his crimes truthfully again.
question
1. What is the nature of Zhao's transfer of 90,000 yuan of money to his account? Why?
2. What is the fact that Zhao caused Qian's death in criminal law theory? What is the view of criminal law theory on this situation? What do you think should be done? Why?
3. What is the nature of Zhao asking Sun for 200,000 yuan? Why?
4. Is Zhao's behavior established and does he surrender? Why?
5. Does Sun's withdrawal of RMB 6,543,800+0.7 million from the company constitute a crime? Why?
Iii. (This question is 2 1 minute)
The facts of a legal case
Zhang-Deputy General Manager of a State-owned Enterprise
Shimou —— Chairman of an investment management company
Yang Zhang's friend
Jiang-Cashier of Shimou Company
Shimou asked Zhang to help with financing, and promised to give Zhang a benefit fee after the job was done, which was rejected by Zhang. Shimou invited Yang to help persuade Zhang, and promised to give Zhang and Yang 4 million shares after the event. After repeated matchmaking by Yang, on March 6, 2006, Zhang instructed his subordinate company to transfer 50 million yuan to the account of Shimou Company for the equity acquisition project. On May 10, 2006, Yang sued Shimou to the court because the 4 million shares promised by Shimou were not fulfilled, and submitted a written certificate issued by Zhang as an important evidence to prove that Shimou had promised to give Yang shares. Shimou was therefore very dissatisfied with Zhang, that is, he exposed Zhang's bribery to a district procuratorate. The procuratorial organ filed a case for investigation and found the following evidence and facts:
-Shimou said: On March 4th, 2006, he gave 15000 yuan in cash to Zhang in his office. On April 17 of the same year, at Yang's urging, Jiang and Yang were asked to send Zhang 400,000 yuan. Because I was worried that Yang would take it for himself, I told Jiang that he must go to Zhang's office with Yang (Shimou described the specific location of the desk, chair and sofa in Zhang's office).
-Jiang said: After taking out 400,000 yuan, I made an appointment with Yang, who said that the traffic jam was very late. Because I had something important to deal with, I gave the money to Yang and Zhang.
-Yang said: I really introduced Zhang and Shimou, and took the initiative to match Zhang to finance Shimou. When I met Jiang, I was late because of the traffic jam. Jiang gave him the money and left in a hurry. Then he handed the money to Zhang in the car, and Zhang took out 654.38+10,000 yuan to him, saying it was a hard fee (after the incident, Yang handed over 654.38+10,000 yuan to the procuratorate).
-Zhang said: helping Shimou to raise funds was entrusted by Yang (the procuratorate questioned Zhang six times and denied accepting any bribes each time).
According to the journal, accounting vouchers and bank statements of Shimou Company, on March 6, 2006, a company under Zhang Company credited 50 million yuan to Shimou Company's account. In the same year, 14 and April 17 raised150,000 yuan and 400,000 yuan in cash respectively.
question
According to the relevant laws, judicial interpretation and criminal evidence theory, we can analyze whether Zhang constitutes the crime of accepting bribes by using the existing evidence in this case. Please explain the reasons.
Answer a request
(1) According to the relevant provisions of laws and judicial interpretations and the understanding of the theory of criminal proof, the evidence in this case can be used to make a judgment on whether a crime can be identified, and what judgment should the court make according to law.
(2) The viewpoint is clear, the analysis is well-founded, the logic is clear, and the words are fluent.
Four, (this question 20 points)
A company appoints Zhang, a salesman, to buy garlic from B company, and Zhang goes to B company to buy garlic with a stamped blank contract and power of attorney.
A company and B company signed a garlic sales contract on March, 2065438 10, stipulating that B company would consign garlic on its behalf, and the delivery of the goods to C company will be deemed as complete. The total price of garlic is 6,543,800 yuan. After the goods arrive at Company C, Company A pays 500,000 yuan for the goods, and pays off the balance of 500,000 yuan after the goods arrive at Company A. Both parties also agree that the 500,000 yuan paid by Company A to Company B includes a deposit of 200,000 yuan. If either party breaches the contract, it shall pay the observant party a penalty of 300,000 yuan.
Zhang found that company B still had some mung beans for sale, thinking that it was the peak season for mung bean sales, so he decided to sign another mung bean sales contract with company B on March 1 day, 2065438, with a total price of 1 10,000 yuan, which was still sold by company B. After the goods were delivered to company C, the delivery was deemed to be completed, and the other terms were the same as the garlic sales contract.
On April 1 2065438, Company B delivered garlic and mung beans to Company C as agreed, and Company A remitted 500,000 yuan of garlic and 500,000 yuan of mung beans to Company B. According to the consignment contract, Company C should deliver the garlic and mung beans to Company A within ten days.
20 10 On April 5th, Company A signed a contract with Company D to resell garlic at the price of10.2 million yuan. On April 7, due to the soaring price of garlic, Company A sold garlic to Company B at a price of 6.5438+0.5 million yuan, and instructed Company C to deliver garlic to Company B. On April 8, Company C was in the process of transporting garlic, and all the garlic was damaged due to flash floods. Company E refused to pay because it did not receive the goods, and Company A refused to pay Company B 500,000 yuan for the remaining garlic because it did not receive the payment from Company E. ..
After the mung bean market skyrocketed, Company C resold the mung bean in its own name at a price of 6.5438+0.3 million yuan, and delivered it immediately, but so far it has not received the payment. After learning about it, Company A refused to ratify the behavior of Company C and asked his company to return mung beans.
question
1. Who owns garlic after it is shipped to Company C? Why?
2. What is the effect of the garlic reselling contract signed by Company A and Company D and E? Why?
3. Who bears the risk of garlic being damaged on the way to Company E? Why?
4. Can Company A refuse to pay the final payment to Company B on the grounds that it has not received the payment for garlic from Company E? Why?
5. Company B has not received the final payment of garlic from Company A, can it require Company A to bear the responsibility of both down payment and liquidated damages? Why?
6. What is the effect of the mung bean sales contract signed by Company A and Company B? Why?
7. What is the legal effect of Company C reselling mung beans to its own company? Why?
8. Does Company A have the right to ask its own company to return mung beans? Why?
Verb (abbreviation of verb) (20 points for this question)
The case is that Dali Company in A County of A Province and Tiecheng Company in B County of B Province signed a coal sales contract in C County of C Province, and Dali Company sold 3000 tons of coal to Tiecheng Company, and the delivery place was C County. Both parties agree that disputes arising from this contract shall be under the jurisdiction of county A court or county C court.
During the performance of the contract, in order to facilitate shipment and transportation, Tiecheng Company telephoned Dali Company to change the delivery place to D County, Ding Province, and Dali Company agreed. Dali Company shipped 2,000 tons of coal to Tiecheng Company, and stored it in Tiecheng Company's freight yard at D County Wharf. Dali Company's request for Tiecheng Company to pay the coal payment was rejected, so it decided to suspend the shipment of the remaining 1 000 tons of coal.
In the case of fruitless negotiation with Tiecheng Company, Dali Company filed a lawsuit in D County Court, demanding Tiecheng Company to pay the purchase price and requesting to terminate the contract. During the trial, Tiecheng Company argued that it had not received 2000 tons of coal and demanded that the plaintiff's claim be rejected. Dali Company submitted to the court the confirmation of payment issued by Jimou, an employee of Tiecheng Company (Jimou is the business representative of Tiecheng Company), but this confirmation was issued by Jimou in the name of long-term business representative of Tiecheng Company. After investigation, the long-term company did not exist, and Ji admitted that it was fabricated by the long-term company for him. Accordingly, the court of first instance added Ji as the defendant. After trial, the court of first instance ruled that Tiecheng Company paid the payment to Dali Company, and Ji was jointly and severally liable for this.
Tiecheng Company refused to accept the first-instance judgment and appealed to cancel the content of the first-instance judgment about ordering itself to pay the purchase price to Dali Company. Dali and Ji did not appeal. After hearing the case, the court of second instance decided to cancel the judgment of first instance and rejected the plaintiff's claim for the defendant to pay for the goods and terminate the contract.
On the 10 day after the second-instance judgment was delivered, Li, who was in charge of Dali Company's business, happened to find a recording of his conversation with Jimou on the acceptance, payment and delivery of 2,000 tons of coal on his mobile phone, which clearly recorded the situation that Jimou was in charge of coal trading on behalf of Tiecheng Company. Dali Company then applied to the court for retrial, insisting that Tiecheng Company demanded payment for the goods and terminated the contract.
question
1. Which court (s) have jurisdiction over this case? Why?
2. What mistakes did the court of first instance make in the trial? Why?
3. Analyze the litigation status of the parties in the second instance.
4. What's wrong with the judgment of the court of second instance? Why?
5. Which courts can Dali Company apply for retrial?
6. How does the court handle the retrial request made by Dali Company? Why?
Six, (this question 22 points)
Case: In February 2007, five people (Party A, Party B, Party D and Party E) jointly established Beiling Trading Co., Ltd. (hereinafter referred to as Beiling Company). The articles of association stipulate that the registered capital of the company is 5 million yuan; The shareholding ratio is 20% each; Party A and Party B each contribute 1 10,000 yuan in cash, Party C contributes with private houses, Party D contributes with patent rights, and Party E contributes with equipment, with each discount of 1 10,000 yuan; Party A is the chairman and general manager, responsible for the operation and management of the company; If the company has profits in the first five years, Party A will get 28%, and the other four shareholders will each get 18%. The profits will be distributed equally from the sixth year.
By September 20 10, the house of c had not been registered in the company's name, but it had actually been occupied and used by the company.
One month after the establishment of the company, Ding proposed a loan of 6,543,800 yuan to the company. For this reason, the company convened an extraordinary general meeting of shareholders and made the following resolutions: it agreed to lend Ding RMB 654.38+0,000 yuan for a period of six months, with monthly interest of 1 10,000 yuan. Ding issued an IOU to the company. Although Ding hasn't repaid the loan yet, he still pays the company interest 1 ten thousand yuan every month.
Wu Wang, general manager of Qianshan Company, is a good friend. Qianshan Company borrowed 65,438+0,000,000 yuan from China Construction Bank for one year, and Wu Wang requested Beiling Company to provide guarantee. A said: "According to the company's articles of association, I only have 3 million guarantee decisions, more than going to the shareholders' meeting. "Wang Wu said," Don't worry, I promise to return it to the bank at the end of one year. That has nothing to do with your company, just go through the formalities as required by the bank. "A decided to issue a letter of guarantee to the loan bank of Qianshan Company in the name of the company.
Unfortunately, Wu was killed in the earthquake in May 2008, and his 13-year-old son survived.
Beiling Company wanted to borrow 2 million yuan from Agricultural Bank, with equipment as guarantee, and the bank agreed. The two sides signed a loan contract and a mortgage contract, but did not apply for mortgage registration.
In May of 20 10, Party B proposed to transfer all its shares to Party A, and Party A was willing to accept it.
On July 20 10, local floods occurred. At this time, the net assets of Beiling Company are 6.5438+0.2 million yuan, but the debts owed to Wanshui Company are 6.5438+0.5 million yuan. Beiling Company decided to donate 6,543,800 yuan to a local charity, and signed a donation contract with it, but it has not yet been delivered.
question
1. Is the profit distribution for the first five years stipulated in the articles of association of Beiling Company effective? Why?
2. If the house contributed by C is not transferred to the company name, what are the consequences for the establishment of the company? Does C need to bear the liability for breach of contract when the house has been occupied and used by the company?
3. Does Ding's behavior of borrowing 6,543,800 yuan from the company constitute registered capital flight? Why?
4.20 10 In August, Beiling Company asked Ding to repay the loan. Has its claim exceeded the statute of limitations? Why?
5. Does Beiling Company have the right to request the court to confirm that its letter of guarantee issued to China Construction Bank is invalid? Why?
6. 13-year-old son inherits Wu's shareholder qualification and becomes a shareholder of the company? Why?
7. If Beiling Company can't repay the loan of 2 million yuan from Agricultural Bank, can the bank exercise the mortgage right? Why?
8. When Party B transfers shares to Party A, do other shareholders have the priority to be transferred? Why?
9. Is the donation contract between Beiling Company and local charity valid? Why? Can Wanshui Company ask the court to cancel the above-mentioned behavior of Beiling Company? Why?
20 10 national judicial examination paper four reference answers
Second, the reference answer:
1. Zhao transferred Qian's deposit of 90,000 yuan to his account and was convicted of theft. In our country, deposit is the object of theft, and Zhao's behavior fully meets the constitutive requirements of theft, which is the accomplished theft.
2. Zhao's act of causing the death of money is called intentional beforehand in criminal law theory. Criminal law theory has the following opinions on this situation: (1) The first behavior, that is, strangling and covering your nose and mouth, constitutes attempted intentional homicide, and the second behavior, that is, the "corpse" tied with money is thrown into the river, which constitutes the crime of negligent death; (2) The crime of intentional homicide is established if the second act is indirectly intentional (or not necessarily intentional) to cause death; Otherwise, the crime of attempted intentional homicide and negligent death is established; (3) regard two acts as one act, regard the intention of dominating the act as generalized intention, and consider it as intentional homicide; (4) treat the two behaviors as a whole and treat them as a misunderstanding of causality. As long as there is a considerable causal relationship, it will be considered as intentional homicide. It should be considered that the causal relationship between the first act and the result is not interrupted, and the objective result is completely consistent with the intention of the actor. Therefore, Zhao's behavior should be established, which constitutes the crime of intentional homicide.
3. Zhao's extortion of Sun 200,000 yuan is an imaginative joinder. On the one hand, Zhao coerced, and Sun was afraid and delivered property. Therefore, Zhao's behavior violated the crime of extortion; On the other hand, money is dead, Zhao's behavior is deceptive, and there is a misunderstanding with Sun; If Sun had known the truth, he would not have been deceived and would not have delivered 200,000 yuan to Zhao. Therefore, Zhao's behavior also violated the crime of fraud. However, because there is only one act, the imaginative joinder is established and punished as a felony.
4. Zhao's behavior was established and he surrendered himself. Although the relevant judicial interpretation stipulates that "if a criminal suspect escapes after voluntarily surrendering, it cannot be considered as surrender", it is aimed at not surrendering later. In this case, although Zhao's previous surrender can be denied according to the judicial interpretation, it cannot be denied that the latter surrender and truthful confession were established.
5. Although Sun's behavior belongs to the crime of embezzlement, it does not constitute the crime of embezzlement. Because although Sun embezzled public funds for personal use, it was not returned for more than three months.
Three. Reference answer (key points):
1. Judge. Zhang can't be found to have taken bribes.
2. foundation. The standard of proof stipulated in Article 162 of the Criminal Procedure Law, Article 52 of the Judicial Interpretation of the Supreme Court and Article 176. The explanation of "the facts of the case are clear, and the evidence is true and sufficient" by the theory of proof in criminal procedure specifically means: (1) Every evidence on which the conviction is based has been verified; (2) There is an objective connection between the evidence and the facts of the case; (3) Each part of the criminal facts is proved by corresponding evidence; (4) The evidence of the whole case excludes other possibilities and the conclusion is unique.
3. analysis. -From the point of view of the existence of criminal acts, it is "one-on-one" evidence that Zhang received two payments. There is neither enough evidence nor enough evidence to prove that he took bribes. Judging from the situation of the people involved in this case, Shimou and Yang are both interested parties in this case, and it is possible to frame Zhang in order to shirk responsibility. The existing evidence is not enough to rule out this possibility.
Deal with it. The evidence in this case does not rule out other possibilities to prove that Zhang accepted the two payments. Due to insufficient evidence, the accused charges cannot be established and a verdict of innocence should be made.
Fourth, the reference answer:
1. A company. Because garlic is a movable property, unless there is a special agreement in the contract, delivery is the sign of its ownership transfer. Company A and Company B have agreed that the delivery of garlic to Company C is deemed to be completed, so Company A is the owner of garlic at this time.
2. effective. Before the delivery of garlic, Company A still has the right of ownership and disposal. The validity of multiple sales contracts concluded by the seller on the same subject matter is not mutually exclusive.
3. Company E undertakes. In the sale of goods in transit, the risk of accidental damage or loss of the subject matter shall be borne by the buyer from the date of signing the sales contract. Therefore, the risk of garlic damage and loss should be borne by the buyer e company.
4. No, because of the relativity of the contract, Company A and Company B are the parties to the garlic purchase and sale contract, and Company A cannot refuse to pay the final payment because it is a third party.
5. No, because both the garlic purchase and sale contracts of Company A and Company B stipulate the deposit and liquidated damages, so Company B can only choose to apply the liquidated damages or the deposit.
6. effective. Because Company A paid 500,000 yuan to Company B, it showed that it ratified Zhang's unauthorized agency behavior.
7. invalid. The resale behavior of company C belongs to the unauthorized disposition behavior (the effect is to be determined), because company A refuses to ratify the behavior of company C. ..
8. No rights. Because your company constitutes a goodwill acquisition.
Verb (abbreviation of verb) refers to the answer:
1.The courts in counties B and D have jurisdiction. The parties have agreed on two courts, and the jurisdiction agreement is invalid. This case is a contract dispute, which belongs to the jurisdiction of a special region and is under the jurisdiction of the defendant's domicile or the place where the contract is performed.
2. It is wrong for the court of first instance to add Ji as the defendant, because there is no need to join the lawsuit in this case; It is wrong for the court of first instance to omit the request of the parties to terminate the contract, because the judgment should be made at the request of the parties.
3. In this case, the appellant is Tiecheng Company; The appellee is Dali Company; Ji is listed according to the litigation status of the original trial.
The court of second instance ruled that the plaintiff's request to terminate the contract was wrong. The court of second instance shall mediate the request according to the principle of voluntariness of the parties. If mediation fails, the original judgment shall be revoked and sent back for retrial.
5. Dali Company can apply to Ding Provincial High Court for retrial.
6. Because the parties have new evidence, the court shall order a retrial; The court shall mediate the request to terminate the contract. If mediation fails, the judgments of the first and second instance shall be revoked and sent back to the court of first instance for retrial.
Sixth, the reference answer:
1. valid. The Company Law allows the articles of association of a limited company to make a profit distribution method that is disproportionate to the capital contribution.
2. It does not affect the effective establishment of the company. Party C shall be liable for breach of contract.
3. It doesn't constitute. After the resolution of the shareholders' meeting, the loan contract is signed, forming Ding's debt to the company.
4. Not exceeded. Because Ding, as a debtor, has been performing his debts.
5. No rights. Because the guarantee contract is a contract between Party A and the bank.
6. yes. Because the company law does not require shareholders to be persons with full capacity.
7. yes. Equipment mortgage cannot be registered.
8. don't enjoy it. Because it's not a diversion.
9. effective. Wanshui Company can request the court to cancel the gift behavior of Beiling Company, and transfer the property for free because it fails to perform its debts, which damages the interests of Wanshui Company and meets the conditions of debt preservation and cancellation right in the Contract Law.