lt;stronggt;One of the highlights of the Civil Law Forumlt;br/gt;lt;/stronggt; (1)lt;br/gt;lt;br/gt;1. How to claim compensation for a traffic accident on a bus? A bus was hit by an illegally driving truck during normal operation, causing passenger Wang Mou to be injured. Who should compensate Wang for his losses? Why?lt;br/gt;A. Wang can demand full compensation from the bus companylt;br/gt;B. Wang can require the bus company and truck owner to bear joint liabilitylt;br/gt;C. Wang cannot directly ask the owner of the truck for compensationlt;br/gt;D. Wang can request full compensation from the bus company and truck owner respectively. Answer: A should be chosen. B - Although there is competition between two independent legal relationships, they do not constitute an element of joint liability; C - Suing in tort is sufficient; D - Two compensations, which violates the principle of compensatory compensation in civil law. lt;br/gt;2. There are two issues in contract law that I don’t understandlt;br/gt; (1) When transferring goods in transit in contract law, if the specific delivery address, such as the destination of transportation, is agreed in the contract, then the risk of the goods is based on when the contract is established or when the contract is established. What about transfers upon delivery? lt;br/gt; (2) In a trial sale, should the delivery of goods be calculated when the contract is established? If so, then the risk and interest on the goods should belong to the seller. lt;br/gt;Answer: When buying and selling goods in transit, regardless of whether the transportation destination coincides with the final delivery location of the goods required by the buyer, the nature of the sale in transit has not changed, and it is a document transaction rather than a physical transaction. The risk is transferred when the contract is formed. lt;br/gt;In a trial sale, the seller's act of handing over the subject matter to the buyer for trial use is not an act of delivery. If the buyer expresses his intention to purchase the subject matter at the end of the trial period, the simple delivery rule in Article 140 shall apply to the delivery method. Therefore, The risks and profits of the subject matter during the trial period belong to the owner, not the buyer. lt;br/gt;3. What is an untrue expression of meaning?lt;br/gt;I don't understand what an untrue expression of meaning is. For example, the exercise questions of the basic civil law class believe that: malicious collusion to harm the interests of others, behavior to cover up illegal purposes in legal forms, and behavior to mistakenly sell fakes as genuine are all behaviors that indicate untrue intentions. What is the judgment standard? lt;br/gt;Answer: The issue of expression of intention is indeed a major difficult issue in civil law. The so-called untruthful expression of intention refers to the situation where the actor's external intention is inconsistent with his inner true intention. The current general theory of civil law believes that the untruthful expression of intention includes two aspects: First, the actor's expression of intention is not free: if the expression of intention is not free due to external reasons such as fraud and coercion, in the general principles of civil law and contract law, the expression is as follows: Fraud, coercion, material misunderstanding, showing fairness, etc. The second is that the actor’s expression of intention is untrue, and there are three situations: retention of true meaning, which means that the actor deliberately conceals his true intention, and expresses other meanings, which are mostly joking behaviors; false expression, that is, the actor conspires with the counterparty to do so. It is a false expression of intention; concealment behavior refers to the actor hiding his true intention in a false expression of intention, such as the act of concealing an illegal purpose in a legal form. lt;br/gt;4. A case of secured property rights: A needs to invest and borrow 100,000 yuan from B, and pledge his own high-end home theater equipment worth 100,000 yuan, which has been notarized and registered. On the first day of the repayment period agreed upon by both parties, A resold the home theater to an unsuspecting C for 100,000 yuan without notifying B due to urgent need for investment. Both parties immediately delivered the goods and made payment. A used the payment for investment on that day. The next day, B asked A for payment, only to learn that the home theater had been transferred. B then filed a lawsuit in court, requesting to exercise mortgage rights over the home theater.

lt;br/gt; Question: lt;br/gt; (1) Does C obtain the ownership of the home theater? Why? lt;br/gt; (2) Should B’s litigation claim be supported? Why? lt;br/gt; Answer: (1) There are two situations: first, according to paragraph 1 of Article 49 of the "Security Law", if the mortgage has been registered, the transfer is invalid in principle; second, according to the "Security Law" According to Article 67 of the Interpretation, the transferee may pay off all debts on behalf of the debtor and eliminate the mortgage right, thus achieving the purpose of correcting the transfer and making it effective. This way the transferee can take ownership of the mortgaged property. In this case, C can obtain ownership of the home theater. lt;br/gt; (2) B’s request can be supported by the court based on Article 67 of the Interpretation of the Guarantee Law. lt；br/gt；5． What is a gift upon death? lt;br/gt;Answer: A posthumous gift is a type of special gift, that is, a gift that becomes effective upon the death of the donor. It is a contract entered into during the life of the donor and becomes effective upon the death of the donor. In terms of its content of giving property free of charge, it is the same as a general gift, but it is similar to a legacy when it is a property that belongs to the heir and is given to others. However, a legacy is a unilateral legal act, while a gift upon death is a contract. The two are fundamentally different. . lt;br/gt;6． Regarding the loss of mortgaged property, the "Security Law" seems to be in conflict with Articles 114 and 115 of the "Mintong Opinions"

And it is not a free commission. I asked some comrades from the court and they said that they often rule that kindergartens should bear the main responsibility. I'm a little at a loss now. Who is right and who is wrong? Please explain it to me. lt;br/gt;Answer: The child's parents are his legal guardians of course, and bear the principle of no-fault liability: that is, regardless of whether the parents are at fault or not, they must bear responsibility. If the kindergarten is at fault, it is appropriate to assume responsibility rather than transfer custody. lt;br/gt;9. Is it a service mark or a sales mark? lt;br/gt;What kind of trademark is the "Live Well" trademark registered by a certain underwear store? lt;br/gt;A. Service trademark B. Sales trademark. Which one to choose? lt; br/gt; Answer: 03 The designated book divides trademark types into: 1. Plane trademarks (planar viewing characteristics) and three-dimensional trademarks (three-dimensional viewing characteristics); 2. Product trademarks (used on tangible goods to distinguish the goods) producers and operators), service marks (used on intangible service items to distinguish service providers); 3. Collective marks (used to distinguish organizational members), certification marks (provided by supervisory organizations to units outside the organization or individuals, used to certify the quality characteristics of goods or services). Based on this question, the specialty store does not produce but only provides sales services. Choice A is more appropriate. This is a question from 2000. Sales trademarks are theoretically recognized but do not exist legally in our country. This question is controversial. lt;br/gt;10． Asking for advice on the issue of patent rightslt;br/gt;The protection period of patent rights is calculated from the date of application, and the effective date of patent rights is the date of announcement. Does the behavior specified in Article 11 of the Patent Law between the application date and the effective date also constitute What about infringement of patent rights? Why should the time limit be calculated from the filing date? Another question: Does the act of publishing a work under someone else's signature and adding one's own signature to someone else's work also constitute an infringement of another person's right to name?lt;br/ gt; Answer: The protection period of a patent right is calculated from the date of application, and the effective date of the patent right is the date of announcement. The behavior specified in Article 11 of the Patent Law between the application date and the effective date does not constitute infringement of the patent right. According to Article 11 of the Patent Law, 13 provisions. Pretending to be someone else's signature when publishing a work is an infringement of the right to name, and adding one's own signature to someone else's work is an infringement of the right to authorship. lt;br/gt;11. How to distinguish the situations and responsibilities stipulated in Articles 46 and 47 of the Copyright Law? lt;br/gt; Answer: The former only bears civil liability and infringes on the rights of the author; the latter bears comprehensive legal liability and infringes on the rights of the disseminator of the work. The two must be separated, which is a common test.lt;br/gt;12. Please ask the teacher for required questions on contract lawlt;br/gt; (1) A owes B 100,000 yuan and pledges a car. The car is lost due to an accident and the insurance premium is 20,000 yuan. Does A have priority over the 20,000 yuan? The right to receive reimbursement, and the other 80,000 yuan will be converted into ordinary creditor's rights? lt;br/gt; (2) A bought a water heater with defective quality. It exploded, causing personal injuries and financial losses. What is the statute of limitations for litigation? (Article 136 of the General Principles of the Civil Code and the Product Quality Law) lt; br / gt; (3) Which of the following commitments will not have the effect of a commitment? a. The notice of withdrawal of the commitment arrived after the commitment due to delivery reasons, and the offeror failed to notify the situation in time Commitment person. b The promise reaches the offeror after the expiration of the offer validity period due to delivery reasons, and the offeror notifies the promisor of the situation. lt;br/gt; Answer: First, it has the priority to be repaid for 20,000 yuan, and the remaining 80,000 yuan can be asked to provide new guarantees. If not, it will be converted into a general debt. lt;br/gt; Secondly , the statute of limitations is 2 years, because there are provisions in the Product Quality Law. Compared with the civil law, the Product Quality Law is a special law, and the special law is superior to the general law
Third, neither of them has the effect of a promise. For the former, see page 745 of the second volume of the revised third edition of "Principles of Civil Law" edited by Zhang Junhao; for the latter, see Article 29 of the Contract Law.

lt;br/gt;13． Two questions about cause-free managementlt;br/gt; (1) Is it true that it is good for others as well as for oneself? Can cause-free management be established? lt;br/gt; (2) When a person has tried his best to repair a neighbor's house but failed to save the house from damage, can cause-free management be established? lt;br/gt; Answer: (1) It can be established. lt;br/gt; (2) It should form a debt without cause management. lt;br/gt;14. A question about inheritance law: A man and a woman B are husband and wife, and they have a son C. When man A dies, woman B fulfills her main support obligations to her father-in-law A and mother-in-law B. A and B also have daughters D and E. Now that A dies, who will be the first heir? lt;br/gt; Answer: The order of inheritance in legal inheritancelt;br/gt; First order: spouse, children (including legitimate children, illegitimate children, adopted children and dependent stepchildren), parents ( Including biological parents, adoptive parents, and dependent stepparents). lt;br/gt;Second order: brothers and sisters (including brothers and sisters of the same parents, half-brothers and half-mothers, adopted brothers and sisters, and step-brothers and sisters with dependent relationships), grandparents, maternal grandparents . lt;br/gt;After the inheritance starts, the first-order heir will inherit, and the second-order heir will not inherit. If there is no first-order heir, the second-order heir shall inherit. lt;br/gt;So the answer should be that B, C, D, E and B are all first-order successors. lt;br/gt;15． Should real estate risk burdens be governed by the delivery doctrine or the registration doctrine? lt;br/gt;Answer: The transfer of property rights is a registration doctrine, and the risk is a delivery doctrine, because the possessor has a "duty of care for possession", otherwise it will be fair. Because for the seller of real estate, the transfer of ownership is his main obligation. If it is only delivery without transferring ownership, it is more reasonable for the party who fails to perform the main obligation to bear the risk. For commercial housing, Article 11 of the "Interpretation of Commercial Housing Sales Contract" stipulates that the risk burden of commercial housing adopts the delivery principle. (Lecture 69, page 381). lt;br/gt;16． Cars are quasi-real estate and cannot be pledged. Is this correct? lt;br/gt; Answer: No. Cars are chattels and can be pledged. Here, there will be competition between pledges and mortgages. lt;br/gt;17． Is this defense tenable? lt;br/gt;A sells the house leased to B to C without notifying B. After A and C have obtained the property ownership certificates, B claims the right of first refusal. Can C use the acquisition in good faith to defend B’s claim? ? lt;br/gt; Answer: According to Article 118 of the Interpretation of the General Principles of the Civil Law, the lessee can request the People's Court to declare the house sale invalid. Because the law stipulates that the tenant's right of first refusal in house leasing actually constitutes a restriction on the owner's right of disposal. lt；br/gt；18． Questions about the guarantee periodlt;br/gt; Article 25 of the Guarantee Law: If the guarantor of a general guarantee and the creditor do not agree on the guarantee period, the guarantee period shall be six months from the expiration of the main debt performance period. lt;br/gt;During the guarantee period stipulated in the contract and the guarantee period stipulated in the preceding paragraph, if the creditor has not filed a lawsuit against the debtor or applied for arbitration, the guarantor shall be exempted from the guarantee liability; if the creditor has filed a lawsuit or applied for arbitration, the statute of limitations shall apply during the guarantee period. Interruption provisions. lt;br/gt;Isn’t it said that the guarantee period is the exclusion period? There is no provision for interruption during the exclusion period - see Article 31 of the Interpretation of the Guarantee Law. The guarantee period shall not be interrupted, suspended or extended for any reason. How to understand? lt;br/gt; Answer: This is an error in the "Guarantee Law", so the "Interpretation of the Guarantee Law" has been revised. lt；br/gt；19． I would like to ask a question about guardianship

Of course you will be held responsible if you fail to fulfill your guardianship responsibilities. As a guardian, a natural person must bear responsibility even if he fulfills his guardianship responsibilities, but it can be reduced. lt;br/gt;20． What is agency consignment? Who are the parties to the contract for agency consignment? What is the relationship between agency consignment and agency?lt;br/gt;Answer: Agency consignment refers to delivery in a different place in the sales contract. According to the agreement of both parties, the seller will do it for The buyer searches for a carrier and delivers the subject matter to the carrier, and the carrier transports it to the place designated by the buyer. lt; br / gt; The legal meaning of agency consignment: the seller is entrusted by the buyer and signs a transportation contract with the carrier in the name of the buyer. The seller's signing behavior is an agency act based on the authorization of the buyer. lt;br/gt;The delivery of the subject matter to the first carrier is the time limit for the transfer of ownership and risk of the subject matter. lt;br/gt;21． The issue of gift contract

lt；br/gt；24． Questions about the Supreme Court's "Interpretation of Personal Injury Compensation Cases" (effective on May 1, 2004): What is supplementary liability? lt;br/gt;Answer: The supplementary liability here refers to non-primary liability. If the tort liability is caused by a third party, the tortfeasor should of course bear the primary liability. However, in order to better protect the victim, if there is any negligence on the part of the obligor, In the case of infringers, they should also bear certain responsibilities, but this liability is different from the liability of the tortfeasor and is a supplementary liability. lt; br/gt;

[align=right][color=#000066][This post has been edited by the author on 2006-8-14 11:50:34][/color][ /align]

wyl_198471 Published on 2006-8-14 11:45 lt; bgt; Civil Law Forum Essence Post 2 lt; /bgt; lt; br/gt; (2) lt; br/gt ;lt;br/gt;1. What is the difference between the two years stipulated in Article 45 of the Product Quality Law and the one year stipulated in Article 136 of the General Principles of Civil Law? lt;br/gt;Answer: Article 45 of the "Product Quality Law" stipulates that the statute of limitations for product liability for personal or property losses caused by product defects is two years. The product liability here is consistent with the product liability infringement stipulated in the "General Principles of the Civil Code" and the product liability stipulated in Article 35, Paragraph 2, of the Consumer Rights and Interests Protection Act. Moreover, because the "Product Quality Law" is a special law, any product defects caused by The statute of limitations for product liability infringement cases is two years. This is different from Article 136 of the General Principles of the Civil Law, which stipulates that the statute of limitations for failure to notify of substandard quality is one year. lt;br/gt;In addition, a two-year statute of limitations applies to lawsuits for breach of contract due to defects in product quality. lt;br/gt;2. In a partnership lawsuit involving a trade name, should the trade name be the defendant, or should the partner be the defendant? lt;br/gt;Answer: ***’s co-partners should be the defendants. Because the provisions of Article 46 of the "Opinions on the Civil Procedure Law" are later than the provisions of Article 45 of the "General Principles of Civil Law". According to the principle that the new law is superior to the old law, Article 46 of the Opinions on the Civil Procedure Law shall apply. lt;br/gt;3. Can the contracted orchard be treated as inheritance, is it the orchard or the fruit trees or the fruit? lt;br/gt;Answer: Inheritance is the legal property left behind by the deceased after his death. The person who contracts the orchard does not have ownership of the orchard, only the contract management right. Therefore, the contracted management right of the orchard cannot be inherited as an inheritance, but the income from the contracted orchard (such as mature fruits and funds invested) can be inherited as an inheritance. lt;br/gt;4. Zhang discovered that his son's photo was printed on the product advertisement of Factory A, so he negotiated with Factory A and demanded that the infringement be stopped, an apology be made, and the loss be compensated. Factory A refused, saying that the advertisement was produced by Advertising Company B, while the advertising company claimed that the photo was provided by Yang, an amateur photographer. The court found that the photo was taken by Yang with the consent of the kindergarten teacher. Who should be the defendant in this case? lt;br/gt;Answer: Factory A and Advertising Company B, Yang is the co-defendant because of his co-defendant’s infringement of Zhang Zi’s portrait rights. lt；br/gt；5． Does the income from operating a partnership belong to the same partners or to each other in shares? lt;br/gt;Answer: Before being divided, they are owned by *** and ***. lt;br/gt;6． There are no specific circumstances that lead to mismanagement in management. That is: how to distinguish between intentional and gross negligence or based on social experience, the management responsibilities of ordinary people? lt;br/gt;Answer: Gross negligence is based on social experience and ordinary people's management responsibilities. For example, if ordinary people should pay attention to it, but the manager does not notice it, it means that he has a serious fault. Because there is no cause for management debts, managers are liable for compensation only if they are intentional or grossly negligent. lt;br/gt;7． In no-cause management, does requesting payment of necessary expenses include loss of work time? If a party files a lawsuit for lost time lost, can it be established? lt；br/gt; Answer: It can be established. Because in no-cause management, necessary expenses and losses can be claimed, and lost work expenses can certainly be claimed.

lt；br/gt；8． With the consignor's consent, what should be done if the third party who subsequently accepts the subcontract causes damage to the goods, whether the third party is at fault or not? lt;br/gt;Answer: Sub-delegation is subject to the consent of the principal, and the principal directly instructs the sub-trustee. If the sub-trustee is at fault, the trustee shall be liable to the principal; if the sub-trustee is not at fault, the principal cannot require the sub-trustee to bear liability. lt;br/gt;9． Is a contract valid when one party takes advantage of others' danger to enter into a contract with another party and infringes upon national interests? Are contracts that do not infringe national interests invalid? lt;br/gt;Answer: A contract that infringes upon national interests is invalid. Contracts that do not infringe on national interests should be deemed to be modifiable and revocable contracts based on taking advantage of others' risks. lt;br/gt;10． What is the right of claim? Why can't the currency be sued for the right to return? lt;br/gt;Answer: The right of request refers to the right holder's right to require others to perform a specific act or not to perform a specific act. Currency can be sued for the right to return. lt;br/gt;11． If the guardian has fulfilled his duties, if the ward infringes the law, the guardian's civil liability can be appropriately reduced, and the compensation will be paid first from the ward's property. If the guardian fails to fulfill his duties, will the loss also be paid first from the ward's property? lt;br/gt;Answer: At this time, if the ward has property, the compensation should be paid from the ward's property first. However, in this case, it does not exclude the guardian's liability to the ward for failing to perform guardianship duties or infringing upon the ward's legitimate rights and interests. lt;br/gt;12． A makes a will, specifying that the house in the property will be donated to B, and also adds a statement that the production time of the will is from the time of A's death. How to understand that the will is a civil act that has neither conditions nor deadlines. ? lt;br/gt;Answer: A conditional civil legal act will only come into effect when the condition is fulfilled, while a civil act with a time limit emphasizes that the civil act will not take effect until the expiration date of the attached time limit. In this question, A The gift does not reflect any additional conditions, but some explanations are attached, which serve as some annotations. Therefore, the effective time of the will, according to the provisions of my country's inheritance law, should be based on the death of A. lt;br/gt;13． Classification of joint and several liability and how to handle it separately? lt;br/gt;Answer: First of all, we must understand what joint and several debts are. Joint and several debts refer to the debts of a majority of creditors or debtors who have a joint and several relationship with the same payment as the subject matter. The "General Principles of Civil Law" stipulates that the occurrence of joint and several debts must be agreed upon by the parties or stipulated by law. Forms of joint and several liability are commonly found in partnerships, independent relationships, agency relationships, employment relationships and guarantee legal relationships. Because joint and several debts have legal effect both externally (rights of creditors) and internally (relationships within the debtor). Therefore, joint and several debtors are obliged to pay off their debts to creditors. The internal effects of joint and several debts mainly include: First, if one of the joint and several debtors partially or completely terminates the debt due to payment, withdrawal, offset, confounding, exemption, or completion of the statute of limitations, it will be effective for all debtors and other debtors. may be exempted from paying debts to creditors. Second, among the joint and several debtors, the debt is still based on shares. If one of the joint debtors has the right to request repayment of the share borne by the other debtors due to repayment. lt;br/gt;14. Can authorization be effective without a delegation relationship? lt;br/gt;Answer: First of all, I would like to explain that the question itself is very vague. I think you may be asking about whether the agency behavior is valid when the agency relationship is unclear, such as ultra vires agency and unauthorized agency behavior if the agent After the person's authorization is ratified, the agency's behavior will have legal effect on the principal. At this time, the civil conduct between the agent and the counterparty is a valid conduct. lt;br/gt;15． What is the relationship between authorization behavior, agency behavior and entrustment behavior? lt;br/gt;Answer: Agency is a civil legal act performed in the name of the principal. Therefore, the agency act must be authorized by the principal (i.e. the principal) to clarify the authority of the agency, while the entrustment act is when the trustee accepts the entrustment of the principal. It is a certain act, so in the entrustment contract, there are not only entrustment acts, but also agency acts and authorization acts.

lt;br/gt;16． If an agent causes losses to a third party due to his fault during agency activities, how should he bear the responsibility? lt;br/gt;Answer: During the agency activities, the agent must bear responsibility for any losses caused to a third party or the principal due to his fault. lt;br/gt;17． If a partner's external behavior violates the partnership agreement, is it valid for the partnership? lt;br/gt;Answer: If the person in charge of a partnership commits a civil act in violation of the partnership agreement and the counterparty knows that the person in charge of the partnership has no right to take a certain civil act but still commits a certain civil act, then this act will not be harmful to the partnership organization or all partners. Be legally effective. If the counterparty is a bona fide third party, this act will have legal effect on all partners, and other partners can recover losses from the partnership leader based on the degree of his fault. lt；br/gt；18. What is the difference between negligence and accident? lt;br/gt;Answer: Negligence is a subjective form of guilt in criminal law, and is a subjective element of civil liability in general torts in civil law, while accidents are generally legal facts that prevent the cause of violation of the law. lt;br/gt;19． What is common law? What is a special law? lt;br/gt;Answer: In our country, common law refers to the basic departmental laws formulated by the National People's Congress and the Standing Committee of the National People's Congress, such as criminal law, civil law, administrative law, procedural law, etc.; while special laws are relative to common law, such as contracts Law is relative to civil law, etc. lt;br/gt;20． What is the difference between a sole partnership and a partnership? lt;br/gt;Answer: An individual partnership is a civil act and is regulated by the General Principles of Civil Law, while a partnership is a commercial partnership and is regulated by the Partnership Enterprise Law. Under normal circumstances, individual partnerships are mostly temporary, and many forms of partnership are mandatory and do not need to be registered with the Industrial and Commercial Bureau. Once a certain purpose of this kind of partnership is achieved, the partnership will also end, lacking long-term and stability. A partnership must go through certain legal procedures before it can be established. The organizational form is stricter than that of individual partnerships. It generally has its own partnership agreement, business premises, and obvious profit-making purpose. lt;br/gt;21． After the declaration of death is revoked, the original object must be returned. At this time, should the fruits of the original object also be returned? lt;br/gt;Answer: From the principle of property rights, it can be seen that the fruits belong to the original thing and should of course be returned, but the owner of the original thing should give appropriate compensation to the counterparty. lt;br/gt;22． I don’t know the actual behavior. If a certain behavior is a factual behavior, what kind of legal consequences will it cause? Is it valid or invalid? lt;br/gt;Answer: Factual behavior is a kind of civil behavior relative to civil legal behavior. It does not aim at establishing civil legal relations, but factual behavior will produce certain legal consequences. For example, uncaused management is a factual behavior in nature, which means that even if there is no intention to express it, as long as there is a fact of management, the debt of uncaused management will occur. lt;br/gt;23． Who is liable for losses caused by an individual, partnership or company operating beyond its scope? Is it valid that no loss was caused? lt;br/gt;Answer: If an individual partnership or company operates beyond its scope, it violates the relevant prohibitive regulations of the country. You will be subject to administrative penalties. If the operation exceeds the scope and does not violate legal provisions and does not cause damage to the country, then this business behavior is valid. lt；br/gt；24． Can unilateral acts be compensated? lt;br/gt;Answer: There is no conflict between a unilateral legal act and whether it is compensated, and of course it can be compensated. lt;br/gt;25． Is the registration or non-registration of a contract for the sale of real estate a prerequisite for the establishment of a sales contract? lt;br/gt;Answer: The contract for the sale of real estate and the contract for the sale of movables are both consensual contracts. As long as the subject status of both parties to the contract is qualified and the parties agree, the contract can be established. .