11 On May 10, 2004, A bought a brand A washing machine (a "three guarantee" product) from the mall. When using it on May 15, he found that the washing machine suddenly stopped spinning, so he went to The mall asked for a return. Salesperson B claimed that the mall clearly stipulates that if there is any problem with any household appliance purchased in the mall, it can only be repaired and cannot be returned or exchanged. However, after three repairs, the washing machine still could not be used normally. For this reason, A complained to the relevant departments of the mall many times, but to no avail. A dispute broke out between the two parties.

Please answer:

(1) Is the statement of salesperson B in the mall correct? Why?

(2) How should consumer A deal with it?

(1) The statement of salesperson B in the mall is incorrect. Because according to Article 45 of the Consumer Rights Protection Law, operators should be responsible for repairing, replacing or returning goods that are guaranteed to be repaired, replaced or returned as stipulated by the state or agreed between operators and consumers. If the product still cannot be used normally after two repairs within the warranty period, the operator shall be responsible for replacement or return. For large-ticket goods that are guaranteed to be repaired, replaced or returned, if consumers require operators to repair, replace or return them, operators shall bear reasonable costs such as transportation. It can be seen that the statement of salesperson B in the mall that "the mall expressly stipulates that if any household appliances purchased in this mall have problems, they can only be repaired and cannot be returned or exchanged" is incorrect.

(2) According to Article 34 of the "Consumer Rights Protection Law", if a consumer rights dispute arises between consumer A and an operator in a shopping mall, he or she can negotiate and settle with the operator, request mediation from the consumer association, Complaints to relevant administrative departments, arbitration, and litigation to the People's Court can be used to resolve the dispute. In addition, according to Article 35 of the "Consumer Rights and Interests Protection Law", consumer A can demand compensation from the sales mall: If consumer A causes personal or property damage due to product defects, he can demand compensation from the seller or the producer. Demand compensation.

12 Wang, Wu and Xiao plan to jointly establish a limited liability company to produce gas appliances. After consultation, the three people drafted the company's articles of association, which include the following contents:

(1) The company's registered capital is RMB 300,000;

(2) Wang contributed money in currency RMB 20,000, Wu invested RMB 80,000 in the form of factory buildings and equipment, and Xiao contributed RMB 200,000 in the form of ordinary non-patented technology;

(3) The company does not have a shareholders’ meeting, and implements a board of directors General manager responsibility system under the leadership;

(4) When the company needs business, it will set up branches. The branches have legal person qualifications, operate independently, and are responsible for their own profits and losses.

Question: Which of the above contents do not comply with the provisions of the Company Law? Why?

(1) For companies mainly engaged in production and operation, the registered capital shall not be less than RMB 500,000.

(2) The price of non-patented technology shall not exceed 20% of the company’s registered capital. The price of Xiao’s non-patented technology has exceeded this limit.

(3) The shareholders’ meeting is the statutory body of a limited liability company and should be established in accordance with the law.

(4) Legally, a branch does not have legal personality, and its civil liability is borne by the head office.

13 On March 20, 2003, Ms. Wang purchased a rice cooker at Xingsheng Shopping Mall in this city. On that day, while using the rice cooker normally, Ms. Wang was injured by electric current due to the leakage of electricity in the rice cooker. Although she was treated promptly, her fingers were still disabled. April 2, 2004. Ms. Wang filed a lawsuit in court with Xingsheng Mall as the defendant, requesting the court to order Xingsheng Mall to bear compensation for her disability due to electric shock. Xingsheng Shopping Mall stated in its defense: First, according to the provisions of the General Principles of Civil Law, the statute of limitations for claiming compensation for bodily injury is one year, so the plaintiff’s lawsuit has expired; second, the plaintiff was electrocuted due to electric rice. The pot had quality defects and the defendant, as a product seller, had no fault. Therefore, the plaintiff had no right to demand Xingsheng Shopping Mall to bear compensation liability. Instead, compensation should be sought from Dongfeng Electrical Appliance Factory, the manufacturer of the rice cooker.

The court held that both of the defendant’s defense grounds were untenable, and ultimately ruled that Xingsheng Mall lost the case.

Question:

(1) Why is the first defense reason of the defendant Xingsheng Mall not established?

(2) Why is the second reason of defense of the defendant Xingsheng Mall not established?

(3) What liability should the defendant Xingsheng Mall bear for compensation?

(4) If it is identified that the leakage of the rice cooker is indeed caused by defects in the design and manufacturing process of the product, Xingsheng Mall will compensate. What rights do you have against Dongfeng Electrical Appliance Factory?

(1) The "Product Quality Law" stipulates that the litigation period for claiming compensation for damage caused by product defects is 2 years, starting from the time when the party knows or should know that its rights and interests have been damaged. Ms. Wang filed a lawsuit one year after she suffered the damage, and the statute of limitations did not expire.

(2) The "Product Quality Law" stipulates that if a defect in a product causes damage to persons or property of others, the victim may demand compensation from the product manufacturer or the seller of the product. Xingsheng Shopping Mall is a seller of rice cookers, and Ms. Wang, as the victim, has the right to demand compensation from it.

(3) In accordance with the provisions of the "Product Quality Law", the rice cooker shopping mall should compensate Ms. Wang for her medical expenses, loss of income due to missed work, living allowance for the disabled, and other expenses.

(4) The "Product Quality Law" stipulates that if the product defect causes personal or property damage to others, the responsibility belongs to the product manufacturer. If the seller compensates, the seller has the right to recover compensation from the manufacturer. Therefore, after Xingsheng Shopping Mall makes compensation, it has the right to seek compensation from the manufacturer that designed and manufactured the rice cooker.

14 Both Sun and Lin are directors of Shengli Dairy Co., Ltd. (hereinafter referred to as Shengli Company). In May 2002, Sun and Lin jointly opened a cold drink factory with Zhang and Wang who were not in the company where they worked. The main products of this cold drink factory are yogurt and ice cream, which are the same as those of Shengli Company. In April 2004, Shengli Company discovered this situation. The company's extraordinary shareholders' meeting resolved to remove Sun and Lin from their directorships and sued the court, requesting the court to order Sun and Lin to compensate for their losses. After investigation, Sun and Lin obtained an operating income of 250,000 yuan while operating the cold drink factory.

Question:

(1) What legal provisions did the behavior of Sun and Lin violate?

(2) How should the court rule?

(3) Is it legal for Shengli Company to remove Sun and Lin from their positions as directors? (1) The behavior of Sun and Lin violated the provisions of the Company Law, which stipulate that directors and managers shall not operate their own business or cooperate with others in the same business as the company they work for.

(2) The court should order that the income of 250,000 yuan obtained by Sun and Lin from operating the cold drink factory shall belong to Shengli Company.

(3) Shengli Company’s removal of Sun and Lin from their positions as directors was legal. According to the provisions of the Company Law, for the above-mentioned illegal acts of Sun and Lin, in addition to their income being owned by the company, the company may also impose sanctions on them.

15 In May of a certain year, a certain city’s Post and Telecommunications Bureau posted a notice in its business hall. The notice stipulated that all users who have telephones installed by the Municipal Post and Telecommunications Bureau must go to the city’s Posts and Telecommunications Equipment Company to purchase telephones. When the user goes through the installation procedures, he must first pay the purchase price of the phone, otherwise the installation procedures will not be carried out. After the notice was implemented for a period of time, the relevant departments received reports from users and investigated and dealt with this behavior of the Post and Telecommunications Bureau. After investigation, it was found that the Municipal Post and Telecommunications Equipment Company was a subsidiary of the Municipal Post and Telecommunications Bureau.

Question:

(1) What is the nature of the illegal behavior of the Post and Telecommunications Bureau?

(2) Why is this type of behavior prohibited by relevant laws?

(3) What agency should supervise and inspect such illegal activities?

(4) How should the supervision and inspection department deal with this illegal act by the Post and Telecommunications Bureau?

(1) The behavior of the Postal and Telecommunications Bureau is a forced transaction by a public enterprise.

(2) Because this type of behavior restricts the free choice of users and consumers, it completely excludes other operators producing the same kind of goods from a specific market, hindering the fair competition mechanism of the market. normal operation, and is therefore prohibited by my country’s Anti-Unfair Competition Law.

(3) The industrial and commercial administrative department at the provincial level or a city divided into districts shall be responsible for supervision and inspection.

(4) Order the Post and Telecommunications Bureau to stop illegal activities and impose a fine of not less than 50,000 yuan but not more than 200,000 yuan depending on the circumstances.

16 The state-owned enterprise Torch Chemical Factory and another state-owned enterprise Mars Chemical Raw Materials Factory decided to jointly serve as sponsors and transform into a joint-stock company. The articles of association of a joint-stock company stipulate that the company's registered capital is RMB 50 million. Torch Chemical Plant invested in factory buildings, machinery and equipment and land use rights, and the estimated price was 4 million yuan; Mars Chemical Raw Materials Factory invested in raw materials and factory buildings, and the estimated price was 2 million yuan; in addition, Torch Chemical Plant also used its trademarks and Investment in patented technology has been evaluated at a price of 11 million yuan. The patented technology is not high-tech. The company will be established through fundraising. Except for the shares subscribed by the promoters in accordance with regulations, the remaining shares are prepared to be publicly raised from the public.

Trial analysis:

(1) Does the sponsor meet the quorum?

(2) Does the company’s registered capital meet the legal minimum limit?

(3) Does the sponsor’s capital contribution comply with legal requirements?

(4) Does the public offering of shares comply with the provisions of the Company Law?

(1) The sponsors meet the quorum. When a state-owned enterprise is transformed into a joint-stock company, the number of sponsors may be less than 5, but the establishment method shall be adopted.

(2) The company’s registered capital meets the legal minimum limit (10 million yuan).

(3) There are two aspects of the promoter’s capital contribution that do not comply with legal provisions: ① Adopting the method of raising funds to establish, the shares subscribed by the promoter shall not be less than 35% of the total shares of the company, Torch Factory and Mars Factory* ** The investment of 17 million yuan did not reach 35% of the total shares (equity capital); ② The Torch Factory’s trademark and patent rights were priced at 11 million yuan, which exceeded 20% of the registered capital of 50 million yuan.

(4) The promoters established the company through public offering of shares, which complies with the provisions of the Company Law. However, since the shares subscribed by the promoters did not reach the legal proportion, the proportion of shares raised publicly from the public did not comply with legal provisions.

17 Factory A developed an H-type high-voltage switch in 2001, filed a patent application with the China Patent Office in January 2002, and obtained the utility model patent in May 2003. Factory B also independently developed this H-type high-voltage switch in July 2001. Factory B had produced 80 H-type high-voltage switches by the end of 2001 and began selling them on the market in March 2002. In 2002, Factory B produced another 70 H-type high-voltage switches. In early 2003, after Factory A discovered Factory B's sales behavior, it negotiated with Factory B, but Factory B believed that its actions did not constitute infringement.

Please analyze the following questions based on the above materials:

Has Factory B infringed Factory A’s patent rights? Why?

Factory B did not infringe Factory A’s patent rights. Article 63, Paragraph 2 of the Patent Law stipulates that if the same product has been manufactured, the same method has been used, or the necessary preparations have been made for manufacture and use before the patent application date, and the manufacture and use only continues within the original scope, it will not be deemed to infringe the patent right. .

18 After analyzing the market, Amy Fashion Store believed that men’s three-button suits and large checkered ties would be the fashion trends in men’s clothing in 2003, so it obtained a loan of 800,000 yuan from the local Industrial and Commercial Bank of China at the end of 2002. , ordered a batch of men's three-button suits and large checkered ties from a joint venture clothing factory. The cost price of suits is 800 yuan per piece and the cost price of ties is 180 yuan per piece.

ICBC and Amy Fashion Store agreed in the loan contract that the loan period is six months, from December 30, 2002 to June 30, 2003, and the principal and interest will be repaid upon maturity; delayed repayment will be borne in accordance with relevant legal provisions. Liability for breach of contract, in addition to repayment of principal and interest, plus penalty interest. At the beginning of 2003, three-button suits and large checkered ties became popular in the market. During New Year's Day and Spring Festival, most of the goods purchased by Amy Fashion Store have been sold, with sales reaching 650,000 yuan. After the Spring Festival, suit sales enter the off-season. After February, there is almost no interest in suits and ties. It was almost mid-June 2003, and the bank loan repayment deadline was approaching. However, Amy Fashion Store was having difficulty repaying due to cash flow problems, so the owner of Amy Fashion Store decided to cut prices for promotion: the price of each suit was reduced to 788 yuan, and the price of ties was reduced. The price is 168 yuan per piece, which is below cost. A week later, Amy Fashion Store sold out the remaining suits and ties, and finally paid off the loan on time. During the price reduction promotion period of Le Méridien, other clothing stores saw a large decrease in customers because suits and ties were more expensive than Le Méridien. As a result, various clothing stores accused Amy Fashion Store of squeezing out its peers by selling at prices below cost; some clothing stores even complained to the city's industrial and commercial administration department, demanding that Amy Fashion Store's unfair competition behavior of low-price dumping for processing.

Please answer:

(1) What are the characteristics of unfair competition in which operators sell goods at prices lower than cost for the purpose of squeezing out competitors?

(2) Under what circumstances does selling below cost not constitute unfair competition?

(3) Does Amy Fashion Store’s below-cost promotion constitute unfair competition?

(1) The characteristics of unfair competition in which operators sell goods at prices lower than cost for the purpose of squeezing out competitors are: ① The subject of the behavior is an operator in a sales position in market transactions ② The operator carried out this behavior subjectively and intentionally, and its purpose was to squeeze out competitors; ③ The operator carried out the behavior of selling goods at a price lower than cost.

(2) Under the following circumstances, selling below cost is not an act of unfair competition: ① Selling fresh goods; ② Dealing with goods whose validity period is about to expire or other backlogged goods: ③ Seasonal Price reduction: ④ Sales of goods at reduced prices due to debt repayment, change of production, or closure of business.

(3) Amy Fashion Store’s below-cost promotion does not constitute unfair competition because the purpose of its price reduction is to pay off bank loans rather than to squeeze out other competitors.

19 A certain factory stipulates that female workers have 70 days of maternity leave. Among them, there are 10 days before delivery and 60 days after delivery; 100 yuan of living expenses will be paid during maternity leave. Female worker Li of the factory was due to give birth on March 20, 2001. She requested to take maternity leave in advance on March 5, but the factory postponed her leave to March 10 on the grounds that it did not comply with factory regulations. On March 20, Li gave birth to twins as scheduled and rested at home. On May 18, the factory notified Li to go to work the next day. However, due to his slow recovery, Li did not return to the factory until early June. The factory withheld part of Li's wages on the grounds that Li violated factory regulations. Li was dissatisfied and lodged a complaint with the local labor dispute arbitration committee, requesting back wages.

Trial analysis: (1) What practices of the factory do not comply with the provisions of the labor law? Why?

(2) How long should Li enjoy maternity leave? Why?

(3) How should the arbitration committee rule?

(1) The factory’s regulations do not comply with the provisions of the labor law. The factory’s refusal of Li’s request for leave and the withholding of part of Li’s wages are also inconsistent with the provisions of the labor law. Because the "Labor Protection Regulations for Female Employees" stipulates that female employees' maternity leave is 90 days, including 15 days before giving birth and 75 days after giving birth, and wages will be paid during the maternity leave.

(2) According to the above regulations, if there are multiple births, the maternity leave will be increased by 15 days for each additional baby. Therefore, Li should enjoy 105 days of maternity leave.

(3) The Labor Dispute Arbitration Committee should rule in favor of Li’s appeal and order the factory to pay back wages.

20 A petrochemical dye factory and sulfuric acid factory in County A have long discharged acid-containing wastewater through their sewage pipes into a river not far from the factory. The water from the river flows into Jinghua Lake in County B. In the first half of 2003, due to a long-term drought and no rain, the lake water level dropped, but the acid-containing wastewater discharged by the factory did not decrease, causing the lake water to become acidic. Zhou, a villager in Zhoulou Village, County B, has been contracted to raise fish on the lake for many years, and there has never been a large number of dead fish. But starting in June 2003, more and more dead fish were floating on the water. According to the environmental protection department's monitoring of the lake water, the pH value was 4.8. Laboratory analysis of the dead fish concluded that they died of corrosion by acidic water. As verified by the fishery administrative department of B County, the direct economic loss caused by the dead fish was 250,000 yuan. Zhou found two sewage discharge units along the river: a petrochemical dye factory and a sulfuric acid plant, and asked them to compensate for the loss of dead fish, but they were refused. So Zhou filed a lawsuit with the People's Court of County B. During the trial of the case, the defendant petrochemical dye factory submitted a monitoring report issued by the Environmental Protection Bureau of County A that the pH value of the wastewater it discharged complied with the discharge standards, and believed that it should not be liable for compensation for polluted and dead fish. The sulfuric acid plant believes that although the wastewater it discharges does not meet the discharge standards, it has paid excessive sewage discharge fees to the environmental protection department and should not be liable for damages. However, the People's Court of County B still ruled that the petrochemical dye factory should compensate the plaintiff Zhou Mou for 100,000 yuan, and the sulfuric acid plant should compensate 150,000 yuan.

Question: (1) Should Zhou submit other relevant evidence to the People’s Court during the lawsuit? Why?

(2) Is the defense of the petrochemical dye factory justified? Why?

(3) Is the sulfuric acid plant’s defense justified? Why?

(1) There is no need to submit other relevant evidence to the People’s Court. Because environmental civil litigation implements the principle of reversal of the burden of proof.

(2) The defense of the petrochemical dye factory cannot be established, because in environmental civil litigation, as long as the behavior has harmful consequences, even if the behavior is legal, it must bear civil liability.

(3) The sulfuric acid plant’s defense cannot be established because its payment of sewage discharge fees does not exempt it from liability for compensation for pollution damage. If existing damage occurs, it will still bear legal responsibility.