1. Short answer questions
Simulation questions (1)
"Beijing Evening News" reporter Zhang published a critical article in a certain newspaper, in which he talked about Dao: In the literary world in the capital, some writers plagiarize other people's works and publish them as their own, and some writers become "shooters" for rich people without conscience. The cultural quality and moral level need to be greatly improved. ?The newspaper is published in the four districts A, B, C and D under the jurisdiction of the capital. Writers Chen and Li in the city believed that the article damaged the reputation of writers in the city. They filed a lawsuit with the People's Court of District A of Beijing, demanding that the Beijing Evening News newspaper and reporter Zhang apologize to them. payment, compensation for losses. After accepting the case, the District A People's Court learned that the newspaper office was located in District B, so it moved the case to the District B People's Court. The District B People's Court listed Chen and Li as the plaintiffs, and the newspaper agency and Zhang as the defendants, and heard the case. During the course of the lawsuit, the newspaper and Zhang pointed out that Chen and Li held public press conferences before filing the lawsuit and cursed the newspaper and Zhang, which constituted reputation infringement. Therefore, they countersued Chen and Li to apologize and compensate for losses. The People's Court of District B accepted the counterclaim and tried it jointly with the original lawsuit. The court found that the original claim was not established and the counterclaim was established, and ruled that Chen and Li should apologize to the newspaper and Zhang and compensate for their losses. Chen had no objection to the judgment of the counterclaim, but believed that his main claim was also valid, so Chen appealed the main claim, but Li did not appeal.
Questions:
1. Assume that the parties to this case reach an arbitration agreement after a dispute arises and agree to submit the case to the Beijing Arbitration Commission for arbitration. Afterwards, Chen and Zhang sued the People's Court. Should the People's Court accept the case?
2. Analyze the procedural errors of the People's Court in this case.
3. If Chen appeals, the appeal will be withdrawn during the appeal period, and the court will rule to allow it. Can the newspaper and Zhang require him to fulfill the first-instance judgment, and why?
4. If Chen withdraws the lawsuit during the trial of the second-instance court, and at this time the second-instance court believes that the first-instance judgment is indeed wrong, what should the second-instance court do?
5. What is the scope of the second-instance People’s Court’s review of the second-instance trial? If the second-instance People’s Court of this case considers the judgment of the first-instance lawsuit to be inappropriate, can it be corrected?
6. Li A person has not filed an appeal. Can he execute the first-instance judgment independently without waiting for the outcome of the second-instance judgment?
7. Assume that the defendant in this case did not file a counterclaim in the first-instance procedure, but in the second-instance procedure filed a counterclaim. How should the people's court of second instance handle it? Why?
8. If in the second instance, Chen, the newspaper and Zhang reach a settlement agreement to end the case, how should the court handle it?
9. In the second instance, the two parties reached a mediation agreement, and the appellee requested the second instance court to prepare a mediation statement. How should the second instance court handle it?
10. Assuming that the second instance people's court changes the judgment of the original lawsuit and the counterclaim, The defendant in the main lawsuit and the counterclaim are ordered to apologize to each other and compensate for the losses. Can the judgment on the main lawsuit and the counterclaim be offset during execution?
Reference Answers
Answers and Analysis
1. Assume that the parties to this case reach an arbitration agreement after a dispute arises and agree to submit the case to the Beijing Arbitration Commission for arbitration. Afterwards, Chen and Zhang sued the People's Court. Should the People's Court accept the case? (2 points)
The People's Court should accept the case. (1 point) Because it is agreed that any violation of personal relations shall be submitted to arbitration, which exceeds the scope of arbitration, the agreement is invalid. (1 point)
2. Analyze the procedural errors of the People’s Court in this case. (3 points)
The mistakes made by the People’s Court in this case are as follows:
(1) The People’s Court of District A has jurisdiction and should not transfer the case to the People’s Court of District B . Because according to the law, reputation rights cases are under the jurisdiction of the People's Court of the place where the infringement occurred or where the defendant is domiciled; and the place of infringement includes the place where the infringement is committed and the place where the infringement results occur. Therefore, the four district courts of A, B, C, and D in the capital have jurisdiction.
(1 point)
(2) Chen and Li should participate in the lawsuit as litigation representatives. (1 point)
(3) Zhang’s article is a professional work. According to the Supreme People’s Court’s “Answers to Several Issues Concerning the Trial of Reputation Cases”, Zhang should not be a defendant, but should be His newspaper was the defendant. (1 point)
3. If Chen appeals, he withdraws the appeal within the appeal period, and the court rules to allow it. Can the newspaper and Zhang require him to fulfill the first-instance judgment and why? (2 points)
Yes. (1 point)
Because according to the relevant provisions of my country's "Civil Procedure Law", withdrawing the lawsuit at this time will cause the second instance judgment and ruling to automatically take effect. (1 point)
4. If Chen withdraws the lawsuit during the trial of the second-instance court, and the second-instance court believes that the first-instance judgment is indeed wrong, how should the second-instance court handle it? (2 points)
It should not be allowed to withdraw the lawsuit and the trial should continue. (1 point) According to the provisions of Article 337 of the "Interpretation of Civil Procedure", during the second instance procedure, the parties apply to withdraw the appeal, and upon review, the People's Court finds that the first instance judgment was indeed erroneous or that the parties maliciously colluded to harm national interests and social welfare. It should not be allowed to protect the interests or legitimate rights and interests of others. (1 point)
5. What is the scope of the second-instance People’s Court’s review? (1 point)
The second-instance People’s Court should only review the matters stated in the appeal. , that is, only the content of Chen’s appeal will be reviewed.
6. Li has not filed an appeal. For him, can he execute the first-instance judgment independently without waiting for the outcome of the second-instance judgment? Why? (3 points)
Li has no choice but to Wait for the outcome of the second-instance judgment and request the execution of the first-instance judgment. (1 point) Because the court's judgment is a whole, and because the plaintiff Chen filed an appeal, the first-instance judgment has no legal effect, so it cannot be used as a basis for enforcement against the parties; and if the second-instance court finds that the original judgment is indeed wrong except for the appeal request, , should also be corrected. The part of the first-instance judgment against Li may be considered to be erroneous by the second-instance court or the judgment may be changed. (2 points)
7. Suppose that the defendant in this case did not raise a counterclaim in the first instance procedure, but raised a counterclaim in the second instance procedure. How should the second-instance people's court handle it? Why? (3 points)
The defendant in this case did not raise a counterclaim in the first-instance procedure, but raised a counterclaim in the second-instance procedure. The second-instance people's court should mediate the counterclaim. Mediation Failure to do so shall result in separate prosecution. (1 point)
This is determined by the two-instance final trial system in my country's civil litigation, because if the second-instance court directly adjudicates the case, the judgment rendered is the final judgment, which is equivalent to depriving the parties of the right to appeal. (2 points)
8. If in the second instance, Chen, the newspaper and Zhang reach a settlement agreement to end the case, how should the court handle it? (2 points)
Chen After a newspaper company and Zhang reached a settlement agreement, there were two approaches:
(1) You can ask the second-instance people’s court to prepare a mediation letter; (1 point)
(2) Chen A person may apply to the People's Court of second instance to withdraw the lawsuit. (2 points)
9. In the second instance, the two parties reached a mediation agreement, and the respondent requested the second-instance court to prepare a mediation document. How should the second-instance court handle it? (2 points)
It should be prepared Mediation Letter. (1 point) According to Article 172 of the Civil Procedure Law, when the second-instance people's court hears an appeal case, it may conduct mediation. If an agreement is reached through mediation, a mediation document shall be prepared, signed by the judges and the clerk, and stamped with the seal of the People's Court. After the mediation letter is served, the judgment of the original People's Court shall be deemed to have been revoked. (1 point)
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