[question]
1. Who should bear the legal consequences of Li's behavior? (5 points)
2. Should the medicine be bought by the Wangs? Why? (5 points)
Analysis:
1. Li was entrusted by Wang to buy precious medicinal materials, and his behavior should be that of a civil agent. Paragraph 2 of Article 63 of the General Principles of Civil Law stipulates that an agent carries out civil legal acts in the name of the principal within the scope of agency authority, and the principal shall bear civil liability for the agent's agency acts. Therefore, the consequences of Li's purchase of medicinal materials in this case should be borne by Wang.
2. According to the provisions of Article 82 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) (Trial), after the death of the principal, the civil juristic act implemented by the agent because he did not know the death of the principal is still valid. That is to say, the consequences of the agent's agency behavior should be borne by the heirs of the principal, and the debts arising therefrom should be taken as the debts of the principal and borne by the estate of the principal or his heirs and legatees. In this case, the Wangs should pay for this medicine.
2. [Case Introduction]1987 65438+In February, Hu's unit decided to send him to Canada to study for two years. Because the money was not enough to go abroad, he borrowed 30,000 yuan from his friend Zhang, and agreed in writing that Hu would pay off the money before going abroad. But Hu didn't pay back the money until he went abroad on July 27th 1988. Although Zhang used to visit Hu often, he didn't mention money. Hu also had two years of contacts with Zhang abroad, but he didn't say anything about money. 1August 990, Hu returned to China. 1990 10 Zhang found Hu because he needed money badly to buy a house. Hu immediately said that he would pay off all the money at the end of the month and explained it on the original written evidence. 165438+1October 5, when Zhang came to ask Hu for money again, he said that one of his lawyer friends said that the debt between them had exceeded the statute of limitations for two years and could not be repaid. Zhang was extremely angry and appealed to the court the next day, demanding that Hu repay the principal and interest of 30,000 yuan.
[question]
1. Has the statute of limitations for Wang's debt expired? (3 points)
2. What role did Hu's notes play in the written evidence at the end of 1990 10? (4 points)
3. Recover the arrears from Hu through litigation? Why? (3 points)
Analysis:
1. Article 135 of the General Principles of the Civil Law stipulates: "The limitation of action for requesting protection of civil rights from the people's court shall be two years, unless otherwise stipulated by law." According to this provision, civil rights are generally not protected by the court after two years, and the obligee will lose the right to win the case. In this case, Hu borrowed money from Zhang in1987 65438+February, and it was not until1990 65438+1October that Zhang asked Hu for money for the first time. At the same time, nearly three years have passed, and the statute of limitations for Hu's debt has actually expired. Therefore, if Hu was unwilling to pay back the money at that time, Zhang could not get his money back through litigation. 2. However, according to the Supreme People's Court's "On Implementation"
3. Zhang asked the court to judge Hu's request for repayment. The court can support it, but not because the limitation period has not expired, but because Hu has made a new commitment.
3.[ Case] After his wife died, Zheng Laohan lived alone with his only son. Recently, because their son was ill and needed urgent treatment, both of them were laid off and were in a hurry. Neighbor Wang wanted to buy Banqiao calligraphy and painting handed down from Zheng Laohan's family long ago, but he couldn't buy it because Zheng Laohan didn't want to sell it. This time, Wang thought the opportunity came, so he found Zheng Laohan and offered to buy this calligraphy and painting with an actual value of 200,000 yuan at a price of 50,000 yuan. Zheng Laohan agreed to the deal because he was in a hurry to find a buyer. Delivery and payment are completed by both parties. After Zheng Laohan's son died of illness, Zheng Laohan was very sad and disheartened, and made it clear that he would not pursue Wang's responsibility. After more than half a month, Zheng Laohan finally died because he missed his son too much. His younger brother, Zheng, inherited the legacy of Zheng Laohan. After learning about the sale between Zheng Laohan and Wang, he asked Wang to make up the price or return the calligraphy and painting. Wang refused to accept, and Zheng appealed to the court.
[question]
1. What is the effect of Zheng Laohan and Wang's calligraphy and painting business? Why? (5 points)
2. Does Zheng have the right to request to change or cancel the trading behavior? Why? (5 points)
Analyze the defects of the expression of will and the effectiveness of the contract. In this case, Wang bought calligraphy and painting at the price of 1/4 when Zheng Laohan was in a hurry, which caused great losses to Zheng Laohan and constituted a civil act of taking advantage of others' danger. According to the General Principles of the Civil Law, a civil act that takes advantage of a person's danger is invalid. However, according to Article 54 of the Contract Law, as long as it does not harm the interests of the state, a contract concluded by taking advantage of a person's danger belongs to a changeable and revocable contract. In this case, the contract concluded between Wang and Zheng Laohan did not harm the national interests, and the contract could be revoked because of the situation of taking advantage of others' danger.
4. [Case] A painting and calligraphy mounting shop signed a contract with the famous calligrapher Zhao to entrust the creation of calligraphy works. The two sides agreed that Zhao would deliver 20 couplets to the mounting shop, and the mounting shop would pay Zhao 5000 yuan. Zhao accidentally injured his right arm, so he entrusted his son to write all the couplets and send them to the hotel, and the mounting shop paid all the remuneration. But soon the mounting shop felt that the style of the work was different from Zhao's, so it asked experts to identify it and found it was someone else's.
[question]
1. Zhao Can entrusted his son to represent his creation? (5 points)
2. Does Zhao's son's behavior belong to unauthorized agency? (5 points)
Analysis:
1. Article 63 of the General Principles of the Civil Law stipulates: "A civil juristic act that should be carried out by myself according to the law or according to the agreement of both parties shall not be represented." In the case of "acting in person", it is stipulated in the contract that Zhao will create all couplets. At the same time, calligraphy creation has a strong personal attribute and must be implemented by himself, which is not an agency behavior. Zhao has no right to entrust others to perform it.
2. Zhao's son's behavior does not belong to unauthorized agency. Unauthorized agency refers to the civil act of agency activities in the name of others without agency rights, including agency activities without agency rights, beyond agency rights or after agency rights are terminated. Unauthorized agency can produce agency effect after being ratified by the principal. However, a legal act that cannot be represented is an act that cannot be represented by others, even if there is a legal entrustment. These acts are mainly personal acts, illegal acts or acts that are not allowed by laws and contracts.
5.[ Case] Nan Moumou is a middle school student, aged 15. One day, on the way home from school, Nan saw that the shopping center was having a prize sale. Every time he spends 20 yuan, he gets a lottery ticket. The highest prize was 5,000 yuan, so he bought a bottle of shampoo worth 20 yuan and won the lottery. A few days later, the lottery results were announced, and Nan Moumou won the highest prize in the lottery. Nan Moumou was very happy and told his mother Xiao that the mother and son immediately went to the mall to win the prize. Xiao put this 5000 yuan in the box at home. The next day, Nan Moumou and Xiao Mou had a dispute. In a rage, Nan secretly took out 5,000 yuan from the cupboard and went shopping in the mall to calm down. He spent 4800 yuan on a diamond ring when he saw that the shopping mall was promoting the diamond ring. A few days later, Xiaomou wanted to buy stocks and use the money in the box, only to find that the money in the box was gone, so he questioned Nanmou, who told the truth under questioning. However, Nan believes that money is his winning prize and he has the right to decide what he wants to buy. Xiaomou thinks that Nanmou is still young, and money should be dominated by himself and Nanmou's father. So I immediately took Nanmou to the mall and said that Nanmou bought a diamond ring without the consent of his parents and asked for a return. The salesman said the diamond ring could not be returned if it was sold.
[question]
1. What is the legal effect of buying shampoo from Nan? Who owns the bonus? Why? (3 points)
2. What is the legal effect of buying a diamond ring in South China? Can I ask for a refund? Why? (3 points)
Does Xiao have the right to use this money to buy stocks? Please provide a justification for the answer. (2 points)
4. Suppose that Nan did not tell Xiao and went directly to the mall to receive the prize. Can a shopping mall refuse to receive an award because Nan is a minor? Why? (2 points)
Analysis:
1. Nan's behavior of buying shampoo is a civil behavior suitable for her age, intelligence and mental health, so it is effective. People with limited capacity for civil conduct have the right to be rewarded separately, so the bonus should be owned by Nan Moumou. The reason is that according to the General Principles of Civil Law, minors over 10 are persons with limited capacity, so Nan Moumou is a person with limited capacity. It is effective to restrict people with civil capacity from engaging in the following two types of civil acts: first, civil acts that are suitable for their age, intelligence or mental health; The second is a civil act of accepting rewards, gifts, remuneration and other pure interests.
2. Nan Moumou's purchase of diamond ring is a contractual act with pending validity. Xiaomou has the right to ask for a diamond ring. The reason is that, according to the provisions of the Contract Law, a contract concluded by a person with limited capacity for civil conduct is incompatible with his age, intelligence and mental health, and the contract is valid after ratification by the legal representative. This contract belongs to a contract whose validity is to be determined before ratification by the legal agent. If the parents refuse to approve, the contract is invalid. Nanmou bought a diamond ring for 4,800 yuan, which is a civil act with a large amount. Not suitable for his age and intelligence, he must obtain the consent or ratification of his parents. Because his mother Xiao refused to ratify, the contract was invalid. As the contract is invalid, his mother Xiao has the right to demand the return of the diamond ring.
Xiao has no right to use this money to buy stocks. The reason is that according to the provisions of the General Principles of the Civil Law, guardians should perform their guardianship duties, protect the person, property and other legitimate rights and interests of the ward, and may not dispose of the ward's property except for the benefit of the ward. Xiao didn't buy stocks for the benefit of the ward, and he has no right to use the money to buy stocks.
4. The mall cannot refuse to redeem the prize on the grounds that the south is a minor. The Opinions stipulate that a person without or with limited capacity for civil conduct accepts rewards, gifts or remuneration, and others may not claim that the above acts are invalid on the grounds that the actor has no capacity for civil conduct or has limited capacity for civil conduct. In this case, Nan Moumou is a person with limited capacity for civil conduct, and his behavior of winning the prize by buying shampoo belongs to pure profit-making behavior. According to the law, others may not claim that it is invalid. Therefore, the mall cannot refuse to redeem the prize on the grounds that the south is a minor.