Case: After convening a coordination meeting between relevant functional departments and the municipal public transport company (hereinafter referred to as the municipal public transport company), a municipal people's government issued the minutes of the meeting, making it clear that the operating scope of the municipal public transport company is within the approved urban planning area; The lines opened by the city bus company in the urban planning area shall ensure the normal operation and be free of tolls; Within the planning area, the investigation and punishment of illegal operation of urban public transport enterprises, which were originally in charge of the transportation department, will be handed over to the construction department. After the minutes of the meeting were issued, a city traffic bureau stopped investigating the illegal operation of the city bus company according to the requirements of the minutes of the meeting.
Tian Mou, Wang Mou are three transport operators approved by the transportation department. The lines they operate overlap with the two operating lines of the city bus company that are exempt from transportation fees according to the minutes of the meeting, but according to the minutes of the meeting, they cannot enjoy the preferential treatment of exemption from transportation fees. The three people refused to accept the decision and filed a lawsuit in the court, demanding that the provisions on exempting the city bus company from paying transportation fees in the minutes of the meeting be revoked, and requesting confirmation that the contents in the minutes of the meeting of the municipal government on suspending the investigation and punishment of the illegal operation of the city bus company were illegal.
Question:
1. Is it within the scope of administrative litigation that the city bus company is exempted from paying transportation fees as stipulated in the minutes of the meeting of the city people's government? Why?
2. Are Tian, Sun and Wang qualified as plaintiffs? Why?
3. Tian, Sun and Wang asked to confirm whether it was illegal for a municipal people's government to suspend the investigation and punishment of illegal operation of city bus companies, and whether it was within the scope of court acceptance? Why?
Second, (this question 15 points)
Case: Ding is the director of an electrical appliance factory in the eastern suburb of a city (private enterprise, without qualification). In 2003, due to the shortage of funds in the factory, he repeatedly failed to borrow money from the bank. To this end, Ding Mou imitated the seal pattern on the bank deposit slip, forged the savings seal and administrative seal of Bank A, as well as the name seal of the bank staff, and forged two deposit slips named Huang and Tang Zaijia Bank, each with a deposit of 500,000 yuan. Later, Ding invited Zhu, the deputy director of the office of Bank B (a state-owned financial institution), to have dinner, and told Zhu of the intention of the electrical appliance factory to apply for a deposit certificate mortgage loan in the office of Bank B, and promised to thank him afterwards. Zhu saw that it was profitable and asked Ding to go to the office the next day to find Zhang, the head of the credit department, and promised to say hello to Zhang. The next day, Ding came to the office of Bank B, and Zhu introduced it to Zhang for his care.
When reviewing the loan materials submitted by Ding, Zhang had doubts about the two certificates of deposit of Bank A, so he sent a letter to Bank A for inquiry. At this time, Ding urged Zhang through Zhu, and Zhang called to ask questions. A bank savings section chief promised to handle it soon, but Zhang did not wait for a reply, so he handled the mortgage loan formalities for Ding and reported it to Zhu for approval. Hou Jia Bank did not reply to the inquiry.
Zhu found something wrong with the materials during the examination and approval process, so he called Ding to ask. After seeing Zhu, Ding told the whole story about the fake certificate of deposit, and lied to Zhu that there was a big business to make money, and the loan would be returned as scheduled, and he gave Zhu a benefit of 6,543,800 yuan on the spot. Zhu Jianding agreed, so he accepted the benefit fee and agreed to lend Ding 1 10,000 yuan. After Ding got the loan, he gave Zhang 50,000 yuan in the name of thanks, and Zhang accepted it. Ding invested all the loans in the electrical appliance factory, and the losses were exhausted, which led to the failure to repay the bank loans. The procuratorate sued the case to the court.
Question: Briefly analyze the charges of Ding Mou, Zhu Mou and Zhang Mou suspected of criminal acts, and then determine how to be convicted and punished according to relevant criminal law theories and laws.
Iii. (This question 18)
Case: Company A assigned Tang, an employee, to engage in the research and development of new lamps, and Tang completed the research and development of a new type of lamps in March 1999. Company A kept the technology of the lamp confidential and applied for an invention patent on May 19, 2000. 200 1 65438+2 1, the national patent office announced the patent application for this invention, and granted the patent right to company a on August 9, 2002. Previously, Company A and Company B signed a patent license contract in July 2000, stipulating that Company B would use the patented technology of the lamp for four years, with an annual license fee of 65,438+10,000 yuan.
In March 2004, Company A wanted to transfer the patented technology to Company C for 800,000 yuan. Tang and Company B also want to buy the patented technology on the same terms. In the end, Company A sold the patent to Tang. After Tang bought the patent, he planned to set up a limited liability company with a registered capital of 3 million yuan with a lamp patent worth 800,000 yuan as capital contribution.
On February 20th, 2004, 65438 applied to the Patent Reexamination Board to declare this patent invalid, on the grounds that Ding Company had started to produce the same lamps and sold them in the market on February 20th, 2099, and the invention was not novel. After investigation, Company D obtained the relevant technical data of Company A by improper means after learning that Company A had developed a new type of lamp, and has been producing and selling the new type of lamp.
Question:
1. As an inventor, what rights should Tang enjoy according to law?
2. Is the patent license contract signed by Company A and Company B before obtaining the patent valid? If there is a dispute between Party A and Party B over this contract, how should the relevant laws be applied?
3. Why did Company A transfer the patented technology to Tang? After the establishment of the patent technology transfer contract, what impact will it have on the effectiveness of the patent licensing contract between Company A and Company B?
4. Tang plans to set up a limited liability company with a registered capital of 3 million yuan and a patent right of 800,000 yuan. Is it in compliance with the law? Why?
5. Should the patent be declared invalid because it is not novel? Why?
6. How to characterize the illegal behavior of Ding Company? Why?
Four, (this question 15 points)
Case: 1998, the state-owned enterprise Chuannan Commercial Building drew up a reorganization plan: after assets evaluation, it was sold at the price of 1.5 million yuan, of which 1.5 million yuan was sold to managers (***4 people) and 450,000 yuan was sold to the remaining 45 employees, and the enterprise was restructured into Chuannan Department Store Co., Ltd. The reorganization plan was approved and implemented by the relevant departments in June 5438+February of the same year. The original manager Song subscribed 450,000 yuan, Li, Wang and Zhou each subscribed 200,000 yuan, and the remaining employees subscribed 1 10,000 yuan. After the establishment of the company, the capital contribution certificate shall be issued to all subscribers. The company has established a shareholders' meeting, a board of directors and a board of supervisors. Song is the chairman and general manager of the company, Li and Wang are directors of the company, and Zhou is the chairman and financial controller of the board of supervisors.
In 200 1 year, the company held a board meeting and decided to increase the registered capital to 3 million yuan. Zhou attended the board meeting and agreed. After the meeting, the board of directors issued a document saying that this capital increase plan can be implemented after being approved by shareholders with more than 2/3 voting rights of the company. In April of the same year, the registered capital of the company increased to 3 million yuan. Except for 300,000 yuan subscribed by a few employees, the remaining 6,543,800 yuan+0.2 million yuan was subscribed by Song, Zhou, Li and Wang, and the industrial and commercial registration for capital increase was handled. On June 5438+ 10 of the same year, Wang and his wife Lan agreed to divorce, and Lan asked Wang to pay 250,000 yuan. Wang paid 50% of his equity to Lan according to the agreement, and the board of directors agreed to the agreement.
In May 2003, Chuannan Company was put on file for investigation on suspicion of tax evasion. After investigation, it was found that except Wang, all the shares obtained by Song, Zhou and Li during the restructuring in198 were purchased by misappropriating the funds of the former commercial building in southern Sichuan, and when the company increased its capital in 200 1 year, Song, Zhou, Li and Wang did not actually contribute, but took the assets assessed by the company's new office building as the capital increase, which was recorded in their personal names. At the same time, it was found that the tax evasion was not discussed by the shareholders' meeting, but for the benefit of the company, and it was decided by the board of directors after obtaining Zhou's consent. Later, the court ruled that the company was found guilty of tax evasion and fined the company 6.5438+0.4 million yuan. Song and others were also sentenced to corresponding punishment.
Question:
1. Is the equity acquired by Song, Zhou, Li and Wang in the reorganization of 1998 valid? Why?
2. Is the management organization and personnel arrangement of Chuannan Company legal? Why?
3. Is the resolution of the board of directors of Chuannan Company and the company's capital increase effective? Why?
4. Can Lan acquire 50% equity owned by Wang according to the compensation agreement? Why?
5. Who should bear the responsibility for the loss of 6.5438+0.4 million yuan caused by the fine imposed on Chuannan Company? Why?
Five, (this question 17 points)
Case: Pan Mou (Party A) who lives in Area A of a city signed a house lease contract with Shu Mou (Party B) who lives in Area B, and Shu Mou rented a 500㎡ second floor in Area C to Pan Mou to run a restaurant. In addition to the relevant lease matters, the contract also stipulates: "If Party A decides to buy the house during the lease, it will buy it at a price of 2,000 yuan per square meter, and the specific matters will be negotiated separately."
After the opening of Pan's restaurant, business was booming, and he decided to buy the rented house for long-term operation. However, due to rising house prices, Shumou did not agree to sell. Pan deposited 6,543,800,000 yuan in notarization, but Shu still refused to sell it. Hou Shumou signed a house sales contract with Xinglin Company at a price of 2,500 yuan per square meter, and the arbitration clause was stipulated in the contract. In order to prevent Shumou from reaching a deal with Xinglin Company, Panmou filed a lawsuit with the People's Court of Area C, demanding that the terms of sale in the lease contract be valid, and sentenced Shumou to fulfill his obligation to assist in handling the house transfer procedures.
After the court accepted it, Shumou raised an objection to jurisdiction, and the court issued a notice of rejection after examination. After trial, the court of first instance found that the relationship between the original defendants constituted an appointment contract, but it did not constitute a business relationship, so it decided to reject the plaintiff's claim. Pan refused to accept and appealed.
Question:
1. What did the court do in the course of this lawsuit that did not conform to the law? What is the correct method?
2. If the original judgment is upheld in the second instance, on the basis of observing the effective judgment, what litigation means can Pan obtain legal relief?
3. If before or during the first-instance litigation between Pan and Shu, Xinglin Company applied for arbitration on the sales contract between them, requesting to confirm the validity of the contract and requesting to perform it, can Pan participate in the arbitration procedure and claim that he has the preemptive right? Why?
4. If the court of second instance decides that Pan wins the case and Pan applies for execution, can Xinglin Company apply for retrial? Why? Can Xinglin Company raise an execution objection? Why?
5. What legal means can Pan apply to the court to prevent Shumou from reaching a deal with Xinglin Company before prosecution? What conditions does the court have to allow it to apply? How should the court permit and enforce it?
6. If the original judgment is upheld in the second instance, after consultation, Pan and Shu reached a contract to sell the house at a price of 2,500 yuan per square meter. Does the sales contract constitute an execution settlement? Why? Should the court intervene? Why?
Part II: The titles of legal documents. This part *** 1 topic, 25 points.
Six, (this question is 25 points)
A (male, 26 years old, Han nationality) and B (male, 24 years old, Han nationality) are cousins. In March 2003, they agreed to work together in the city, set up a stall in the same farmer's market to do fruit business, and share a small courtyard to live together. Because A is good at business, business has always been better than B, so B is somewhat wronged.
On the afternoon of August 6, 2005, because of a single apple wholesale sale, B thought A had taken away his business, so he went to A and set up a stall. A said, "My apples are of good quality and low price. People are willing to buy mine You can't blame me. " B said, "People were going to buy my apple, but you deliberately lowered the price and robbed my business. Forget it if you don't help me, but you shouldn't even bully your cousin. I have put up with you for a long time! " The more B said, the more anxious he was. He grabbed the fruit knife next to him and stabbed A. When A saw this, he quickly reached for the knife. Stalemate armor was stabbed in the right arm. After buyers C and D stopped and persuaded, B put down the fruit knife and apologized to A who was bleeding, saying, "I was just angry for a while, please forgive my cousin." And send a to a nearby central hospital for treatment. After identification, A was slightly injured. During A's hospitalization, B took the initiative to bear the medical expenses, and delivered meals for A to help with nursing. However, because A was hospitalized, the business was neglected, and several hundred kilograms of fruit rotted, resulting in a loss of more than 3,000 yuan.
After leaving the hospital, A felt that this incident made him lose face in the market and suffered serious business losses. He was very angry. At the insistence of his visiting wife, he filed a criminal lawsuit with the district people's court where the farmers' market is located. The court accepted the case and dealt with it according to law within the statutory time limit.
Question: If you are a lawyer hired by Party A or a lawyer hired by Party B, or the presiding judge of this case (choose one), please write legal documents according to the above cases.
Tip: The related matters such as the natural situation of the parties involved in the document, the name of the judicial organ, the type and name of the evidence can be written by yourself, but the examinee's own name is not allowed, otherwise this volume will not score.
Answer the request:
1. The choice of document types conforms to the selected identity, legal provisions, standard format and complete items;
2. The request or defense matters are clear, the facts and evidence are sufficient, or the handling is legal and accurate;
3. The text is concise and fluent, and there are no grammatical errors and typos.
Part III: Analysis and discussion. There are ***2 questions in this section, with 50 points.
Seven, (this question 25 points)
Case: a junior girl in a university. On May 5, 2003, A went shopping in the supermarket of B, an internationally renowned chain store. After paying the bill, he took back his handbag and was about to walk out of the supermarket gate when he was stopped by the supermarket security guard. The security guard suspects that Party A is carrying unsettled goods, and should take Party A to the supermarket manager's office for handling. A denied it and attracted many customers to watch during the dispute. Later, in the manager's office, Party A presented the purchased goods and the checkout documents at the request of the manager on duty. The manager on duty opened the handbag brought by Party A for inspection, and called the female staff to conduct a full-body search of Party A, but found no unsettled goods, so Party A was released. Afterwards, the news that A was searched in the supermarket spread in our school and even other universities. A has become a "news person" who has attracted much attention, causing great mental pressure on A, causing insomnia, dizziness and other symptoms, and unable to continue his studies. The doctor advised him to do psychotherapy. A thinks that Supermarket B has infringed on his personality right, so he files a lawsuit and requests that Supermarket B be ordered to pay 6,543,800 yuan for mental damages.
The main factual dispute between the two parties in this case is whether supermarket B forced Party A to take off his underwear during a full-body search. In this regard, neither side provided sufficient evidence. The main legal dispute between the two sides is whether the supermarket has the right to search customers when the amount of theft is huge every year. Supermarket B thinks that a notice has been posted in the supermarket and reserves the right to search customers. The court of first instance held that Supermarket B could not provide evidence to prove that it did not force Party A to strip and search, so it recognized the fact of strip and search. It is believed that the search behavior of supermarket B has violated A's personality right, and the infringement circumstances are bad and the consequences are more serious. At the same time, considering the high level of local economic development, the defendant was awarded compensation for mental damages of 1 10000 yuan. Supermarket B refused to accept the appeal.
The court of second instance held that the factual evidence of the first-instance judgment that Supermarket B forced Party A to take off his underwear was insufficient, but other facts identified in the first instance were maintained, and it was decided that Supermarket B should compensate Party A for mental damages 1000 yuan as appropriate. Party A refuses to accept the judgment of the second instance and applies for retrial on the grounds that the compensation amount is too small, requesting to change the compensation amount to 1 1 ,000 yuan.
Question:
1. Please briefly analyze the legal issues involved in the first-instance judgment, second-instance judgment and retrial application of this case;
2. After the case happened, the social response was quite great, which triggered a lot of discussions, mainly involving many legal issues such as compensation for mental damage, judge's discretion, protection of personality rights, protection of consumers' rights and interests, and enterprise safety measures. Please discuss it briefly from any angle.
Answer the request:
1. The analysis of the first question should be based on jurisprudence and existing legal provisions;
2. The discussion of the second question should be clear-headed, fully demonstrated and logically smooth.
Eight, (this question is 25 points)
Common law countries implement case law system, and the judge's judgment itself has legislative significance and is binding on handling similar cases in the future. In China, written law and judicial interpretation are the main basis for hearing cases, and the Supreme People's Court also guides the trial practice by publishing cases. Please talk about your views around "precedents, cases and judicial interpretations".
Answer the request:
1. On the basis of analysis, comparison and evaluation, put forward opinions and use legal knowledge to explain the reasons;
2. Clear reasoning, rigorous logic, fluent language and accurate expression;
3. The number of words is not less than 500 words.