Understanding Internship Report

The report includes three parts: the introduction of the case, the case analysis and my thinking. The introduction of the case mainly introduces the whole process of the court trial, and introduces his own views on the whole case through the case analysis, and introduces my thoughts on a series of thoughts triggered by my understanding of the internship.

[case introduction]

Time: March 28, 2001 Venue: Third Civil Court of intermediate people's Court of a city

First appellant: Luen FA Construction & Installation Co., Ltd.

Second appellant: Jindu consumer goods comprehensive market in Mulan County

First appellant: Zhang Decheng

Second the appellee: Shi Jing

Third the appellee: Bai Shuqin

I. stage of trial

The presiding judge checks whether the two parties are present at the court, announces the list of the members of the collegial panel and the clerk, tells the litigants' rights and obligations of litigation, and asks whether the parties apply for withdrawal. Neither party applies for withdrawal.

According to the 120th provision of the Civil Procedure Law of the people's Republic of China, the presiding judge announced that the dispute over the sale of the house is now in session.

Two. Court investigation phase

(1) the first appellant reads the petition;

Lien FA construction and installation Co., Ltd. (hereinafter referred to as the joint venture company) litigant request: 1. requests the court to confirm that the Mulan County Jindu consumer goods comprehensive market (hereinafter referred to as the golden capital market) and Zhang Decheng, Shi Jing, Bai Shuqin's housing sales contract is invalid; 2. disclaims the Liu Zhiwan (the legal representative of Jin Du market) lawsuit request; 3. lawsuit expense is borne by the golden city field.

Facts and reasons: the company said Liu Zhiwan was the head of the Fifth Engineering Department of the company, and the two sides signed an internal contract. Liu Zhiwan paid the contract fee to the joint venture company every year, with a quota of fifth of the total annual construction cost of the project which was built by the agency 2%.

In April 1998, the Fifth Engineering Office of the joint venture company undertook the construction of the capital capital market, which was jointly invested by the United Nations Development Corporation and the Fifth Engineering Office of the United Nations Development Corporation.

In April 6, 1998, Liu Zhiwan entered into a housing sales contract with the three appellant under the name of the Fifth Engineering Office of the joint venture company.

UNIDO considers that the Fifth Engineering Office of the joint venture company does not have an independent legal person qualification, and the housing sales contract concluded with the three appellant has exceeded its authority of authorized agency. It belongs to the ultra vires agency. After that, it has not obtained the ratification of the joint venture company, so the court has requested the court to confirm that the house sale and purchase contract is invalid.

(two) second appellant read the petition;

Litigation request of Jin Du Market: withdraw the original judgment of Mulan County People's court.

Facts and reasons: Kim Du market believes that the court of first instance confuses the legal relationship and reverses the truth.

The golden city court said the Fifth Engineering Office of the joint venture company is an independent legal entity with independent operation and self financing. The construction project of the capital market is Liu Zhiwan's personal investment of more than 1200 yuan, rather than joint investment with the joint venture company.

In April 26, 1998, Liu Zhiwan entered into a housing sales contract with the three appellant in the name of the Fifth Engineering Office of the United Nations Office. He sold the stalls of 4, 5 and 6 in the golden city hall to the three appellant, whose construction area was 73.18 square meters, 4000 yuan per square meter, three yuan totaling 878160 yuan, and the contract also agreed to deliver the 50% of the total price immediately from the date of signing the contract. The project will be delivered again within a month after the commencement of the project, and the remaining part will be cleared before August 20, 1998.

After the signing of the contract, Shi Jing delivered 100 thousand yuan. Zhang Jiazhen (the daughter of Zhang Decheng and Bai Shuqin) paid 100 thousand yuan for Zhang and Bai. After that, three people delivered part of the purchase money in succession. By August 20, 1998, three of the remaining money was not paid by the appellant, which constituted a breach of contract. Therefore, three of the remaining appeals were requested to pay the total amount of 73452.92 yuan, and the responsibility for breach of contract was investigated.

(three) the appellant will read out the reply.

The appellant's claim: 1. requests the court to confirm that it is effective in connection with the housing sales contract concluded by the Fifth Engineering Office of the United Nations Office; and 2. refund of the excess payment.

Facts and reasons: in April 6, 1998, three appellant and Liu Zhiwan entered into a contract for the sale of housing. After the right to use the booth, they found that their actual construction area did not conform to the contract stipulations, and commissioned the relevant units to make a survey. It was found that the actual building area of Shi Jing 4 booth was 14.62 square meters lower than that stipulated in the contract, 5 stalls were 14.85 square meters less, and 6 stalls were 14.6 square meters.

At the same time, the time limit for obtaining the right to use the booth by the appellant is 97 days later than the contract, and the Fifth Engineering Office of the joint venture company has constituted a breach of contract.

In addition, three of the appellant still owed 60 thousand yuan instead of 73452.92 yuan.

Three. Court debate stage

The first round of court debate:

(1) second of the Appellants submitted three evidence to the court: 1. the internal contract signed between the joint venture company and the Fifth Engineering Office of the United Nations Development Corporation (Liu Zhiwan); 2. the housing sales contract signed by Zhang Decheng, Bai Shuqin and the Fifth Engineering Office of the joint venture company (provided by the housing sales contract of Shi Jing and the Housing Department); 3. Mulan county government documents on preferential conditions for Liu Zhiwan to invest in the development of pharmaceutical areas in Mulan county.

Second the appellant's debating opinion: 1. request to dismiss the appellant's claim and pay the remaining sum of 73452.92 yuan; 2., the Ministry of Construction promulgated the "rules for the calculation of the area of commercial housing sales and the allocation of public building area" in 1995, and the fifth second stipulates that the sales area of commercial housing = the common building area shared by the built area, and sixth sets of regulations.

The internal construction area is composed of the use area of the unit (unit), the wall area of the building and the balcony building area. The proportion of the public building area allocated by the eleventh second provisions is equal to the public building area allocation coefficient * the built area of the building is calculated. According to the above standard, the area of the gold market sold to three of the appellant is larger than that of 73.18 square meters, and there is no question of giving less. 3. according to the interpretation of the Supreme Court 1999 on the application of the contract law of the People's Republic of China, the first provision: before the contract law has been established, a contract dispute has been brought to the people's court.

According to the above provisions, when the three appellant fails to pay the remaining house purchase in accordance with the contract, it has constituted a breach of contract. The golden city yard can exercise the right to resist the right at the same time and delay the delivery of the stall. It does not constitute a breach of contract. 4. second the appellant's agent thinks that the golden city yard should not become a defendant. Three the appellant made a housing sales contract with the Fifth Engineering Office of the joint venture company, that is, Liu Zhiwan, rather than the gold market.

Jin Du market is not a contract party and Liu Zhiwan is not the legal representative of the golden capital market. Therefore, the golden metropolis should not become a defendant. 5., the Fifth Engineering Office of the joint venture company has obtained the housing property certificate before it entered into a housing sales contract with the three appellant, so its housing sales contract concluded with three of the Appellants is authentic, legal and effective.

(two) first, the appellant's debates: 1., the fifth housing agency contract with the three appellant has been void. It is a subordinate unit of the joint venture company. It is affiliated with the United Nations Development Corporation and does not have an independent legal person qualification. The sale and purchase contract concluded with the three appellant without the authorization of the joint venture company has no legal effect; 2., the Fifth Engineering Office of the joint venture company has the financial special seal of the gold capital market for the three appellant's collection notes.

(three) the evidence submitted by the appellant to the court: 1. from April 26, 1998 to September 14, 1999, the detailed list of the house purchase between the appellant and Liu Zhiwan; 2. the account of the Fifth Engineering Office of the joint agency fifth of the three appeals who owed 60 thousand yuan of their purchase.

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The debates of the appellant's litigation agent: the appellant and the joint hair company is an apparent agency relationship between the Fifth Engineering Department of the United States and the joint hair company. It is in good faith that the Fifth Engineering Department of the joint hair company has the agency right. According to the provisions of the contract law and the general rules of the civil law, the validity of the contract is at the joint hair company and requests the court to protect the legitimate rights and interests of the bona fide third party.

The second round of court debate:

(1) second the appellant's agent ad litem questioned the truthfulness and legality of the measurement unit used by the appellant to measure the use area of the house. It was considered that it had not been approved by the capital market and had not been calculated according to the method prescribed by the Ministry of construction. The measurement result was illegal. The internal accounts of the capital market were only used for internal settlement, and the external accounts had no legal effect. Besides, the accounts were stolen.

Sex raises questions.

At that time, Liu Zhiwan was asked to appeal to the three appellant for urgent use of money. If the three people immediately delivered 60 thousand yuan (relief 13452.92 yuan), the purchase money between the two sides was regarded as a settlement, and three of the appellant did not immediately deliver 60 thousand yuan. Second the appellant's agent thinks that this is a conditional civil legal act, and the contract is not yet effective because of the conditions attached, so three of the appellant is still less than 73452.92 yuan.

(two) the chief judge asked the litigant Liu Zhiwan to find out that the Fifth Engineering Office of the joint venture company was affiliated to the company on the basis of the construction project of the contract capital market, and the Fifth Engineering Office of the joint venture company did not obtain the certificate of land use right when the project was started, nor did it obtain the sales license for the commercial housing when selling the house.

Second the appellant's agent ad litem believes that the failure of his party to obtain the certificate of pfer of land use is the result of poor coordination among various departments of Mulan county government. Sooner or later, it will only be a matter of time.

Four, both parties do not agree to conciliation. The chief justice announces an adjournment. Within three days from the first appeal, the court will provide evidence to the court that it will jointly invest in the capital construction market of the Fifth Engineering Office of the joint venture company, otherwise it will bear the legal responsibility of inproving the evidence.

The presiding judge announced that the collegial panel would adjudication after the collegiate panel.

[case analysis]

Looking at this housing dispute, it is easy to find that there are two main points of dispute in this case: 1. Is it a joint investment relationship or a principal-agent relationship between the Fifth Engineering offices of the joint venture company and the joint venture company, or the Fifth Engineering Department of the joint venture company is only affiliated with the associated development company, paying its management fees every year, and there is no actual financial contact between the two parties; 2 and three whether the housing sales contract concluded between the appellant and the Fifth Engineering Office of the joint venture company is effective.

As long as these two problems are solved, the whole legal relationship is clear and clear. We analyze the following three aspects based on the existing evidence:

.1., a joint venture company, said that the construction of Jin Du market was jointly invested by more than 1200 construction projects with the Fifth Engineering Department of the joint venture company. However, in the course of the court hearing, the company did not have enough evidence to prove the common investment relationship between the two. If the joint venture company still can not provide enough evidence to the court after the adjournment, according to the principle of "who advocates the proof" in the Civil Procedure Law of China, the court will not recognize that there is a common investment relationship between the joint venture company and the Fifth Engineering Office of the joint venture company. If there is sufficient evidence to prove that there is a common investment relationship between the two parties, the income of the two should be divided according to the investment proportion of both sides.

2. there is an internal contract between the joint agency and the Fifth Engineering Office of the United Nations Development Corporation. The contract is stipulated by the Fifth Engineering Department of the joint venture company to undertake the construction of the project. Its internal contract is binding on the parties to the contract, but it can not fight against the third party in good faith. The joint office and the Fifth Engineering Office of the joint venture company are still a whole.

The joint agency said that the Fifth Agency of the joint venture company was entrusted with the agency relationship. It commissioned the Fifth Engineering Department of the joint venture company to be responsible for the construction of the capital capital market instead of the Fifth Engineering Department of the joint venture company, which was responsible for selling the stalls of the capital market. Therefore, it was said that the housing sales contract between the Fifth Engineering Office and the three Appellant was an ultra vires agent.

We know that the joint venture company can not prove whether it is investing in the construction capital market project jointly with the Fifth Engineering Office of the United Nations Development Corporation. If it is invested entirely by the Fifth Agency of the United Nations Development Corporation, Liu Zhiwan is only affiliated with the joint venture company and the construction of the capital market project under the name of the Fifth Engineering Office of the United Nations Development Corporation. Then it can not be said that there is a principal-agent relationship between the two.

Two. If the joint venture company and the Fifth Engineering Office of the joint venture company jointly invest in the construction of the capital market, the two owners will have ownership of the golden city yard and constitute a common relationship in the civil law. The fifth project of the joint venture company has entered into a housing sales contract with the three appellant in its own name without having informed the company that its joint ownership has been violated, and the sale and purchase contract of the house is invalid.

However, it is inevitable that the sales booth will be sold after the completion of more than 1200 construction projects. The company should be concerned about its own profits and profits. It is presumed that the company should know that the two parties have entered into a housing sales contract without making any denial. It should be regarded as the same intention; if Liu Zhiwan is only affiliated with the joint venture company and invested solely by himself, it will be authentic, lawful and effective for the parties to the housing sales contract concluded with the three appellant.

Three. For unlicensed irregularities of the Fifth Engineering Office of the United Nations agency, which has not obtained the certificate of pfer of land use right and the sales license of commercial housing, the local land management department and the real estate management department shall impose administrative penalties on them, which are not within the scope of this case.

In this housing dispute, the head of the Fifth Engineering Office of the joint venture company is Liu Zhiwan, the legal representative of the golden capital market is also Liu Zhiwan, and the two are the same subject. Liu Zhiwan wants to avoid legal liability in this way, which is untenable in law.

[my thoughts]

During the two week practice of cognition, we went to the intermediate people's Court of Harbin to listen to some civil and criminal cases. Combined with our own personal experience, we made some preliminary discussions on some problems exposed in our judicial practice.

First, the influence of public opinion supervision on fair trial.

The court hearing cases are open to public hearing except for special provisions of the court. Our constitution and civil procedure law, criminal procedure law and the organic law of the people's court clearly stipulate that citizens enjoy the right of supervision. Citizens and news media should supervise the trial activities of the people's courts according to law, so that people's courts can be placed under the supervision of the masses and be truly open, fair and impartial, so as to avoid black box operations and judicial corruption.

For this reason, the people's courts at all levels should formulate corresponding regulations to encourage citizens to listen to the trial cases of the people's courts and put forward opinions on the work of the people's courts.

Two, China's civil procedure law and criminal procedure law clearly stipulate that the people's court hearings usually consist of a collegial panel composed of three judges or three judges and people's jurors. However, in concrete judicial practice, it is often the case that only one trial takes place. Other judges are not looking through other files, leaving the trial place at will, or absent-minded, damaging the image of people's judges in the minds of the people, making the seriousness of the court greatly reduced. At the same time, it is difficult for the collegial panel members to play a fair referee role in discussing the case.

At present, due to the general quality of judges and the constraints of various factors, the time for the widespread implementation of the sole trial system is not yet ripe. Therefore, we need to improve the collegiate bench trial system, so that the role of the collegiate bench trial can be truly reflected.

Three, some judges' professional quality is not high, they are rude to the parties concerned, do not respect the litigant rights of the litigants, lack knowledge of the legal knowledge system, go deep and solid, and even worse than the lawyers' professional qualities.

It will affect the fair trial of the case. Therefore, we must constantly enrich the ranks of judges and convey specialized legal talents. At the same time, we should strengthen the professional training of on-the-job judges, conduct regular examinations on them, and implement the competition mechanism of "superior under the superior" so as to improve the overall quality of the court.

Four, through this understanding of the internship activities, we should combine the theoretical knowledge with concrete cases, integrate theory with practice, be good at grasping the legal relationship among them, train our ability to understand the case and analyze the case, and take the legal post for the future.

I think this is the real place for us to carry out this practice.