The fifth guiding the Supreme Court case

Date:2012年12月20日 15:27

The fifth guiding the Supreme Court case
Supreme People's Court issued notice on the fifth guiding case
France [ 2013 ] No. 241 provinces, autonomous regions , municipalities directly under the Higher People's Court , People's Liberation Army Military Court , the Higher People's Court of Xinjiang Production and Construction Corps Branch :
Judicial Committee discussed and decided by the Supreme People's Court , Zhang Li v. Beijing will now force the six cases Huatong Automotive Services Limited contract dispute , etc. ( Guiding Case No. 17-22 ) , released as the fifth guiding case for the Referring to similar cases when the trial .
Supreme People's Court
November 8, 2013
Case No. 17, Guidance
Zhang Li v. Beijing Heli China Automotive Services Limited contract dispute
( Issued by the Supreme Court Judicial Committee discussed Nov. 8, 2013 )
Keyword
Civil Fraud family car sales contract
Referee points
1 for the consumption needs of family life, buy a car , fraud disputes , in accordance with the "PRC Consumer Protection Law" deal .
2 car sales to consumers who have not committed to sell used or new car repaired , the Department found that consumers buy used or repaired car, the seller can not fulfill this obligation , and that they have been recognized by consumers , constitutes fraudulent sales , consumers are demanding compensation for the loss of sales by the Consumer Protection Act in accordance with the people's court should be supported.
Related ordinance
" PRC Consumer Protection Law" Article , Article 55 , paragraph ( paragraph Department October 25, 2013 changes, before the amendment to Article 49 )
Basic facts
February 28, 2007 , the plaintiff from the defendant Zhang Li Hua Tong force Beijing Automotive Services Limited ( together Framatome ) buy Shanghai GM Chevrolet Epica sedan , the price of 138,000 yuan , the two sides signed a "car sales contract ." Article VII of the contract agreed: " ...... the seller to ensure that the purchaser purchased the vehicle for the new car , before delivery has made ​​the necessary inspection and cleaning , the number of vehicle-kilometers away from the table for the 18 km and are provided by the seller to the buyer of the vehicle delivery the specifications and indicators listed in the document ...... " the day the contract is signed , Zhang Li Hua Tong companies to work together to deliver a 138,000 yuan car models , while the vehicle purchase tax to pay 12,400 yuan , one-stop service charges 500 yuan , insurance 6060 million. On the same day , together Huatong Chevrolet Epica sedan will be a cross Fuzhang Li , Zhang Li of the car handled the registration of motor vehicles . May 13, 2007 , Zhang Li in the vehicle maintenance company sent together Huatong when the car was found Jan. 17, 2007 carried out repairs .
Hearing, said Zhang Li Hua Tong force procurement of vehicles did cause scratches in transit , on January 17, 2007 carried out repairs , maintenance projects include painting the right front fender , right front door paint, rear right fender paint , right front door sheet metal, sheet metal rear right fender , right front fender sheet metal, repair replace large bottom side buckle, fuel tank door and front fender lamp assembly . Carry- person sales department of the company . Heli Watertown company said repairs to the vehicle had been clearly informed of the matter in the sale of Zhang Li , and accordingly to be more substantial concessions, car selling price should be 151,900 yuan , after consultation actual selling price of the car 138000 yuan , also presented some of the decor. To prove these facts, together Watertown company provides vehicle maintenance records and have ZHANG vehicle handover date of signature of acceptance of a single February 28, 2007 in a , in a single- vehicle handover acceptance Remarks column marked " plus 1 / 4 oil, spray the car right side sheet repair , according to the agreed sales price . " Heli Hua Tong said that the acceptance of a single system to save the company , Zhang Li had no hand in this one . For these two together Huatong evidence provided by the company , Zhang Li expressed no objection to the vehicle maintenance records , signed acceptance of a single vehicle handover is really in its sign, but together Framatome in the sale had not been informed of the vehicle maintenance its signature remark column when there is no " right side sheet sprayed the car repaired at an agreed price sales " words.
Referee results
Beijing Chaoyang District People's Court ( 2007 ) towards Min Chu Zi No. 18230 civil judgment in October 2007 : a revocation Zhang Li Hua Tong and force the company at February 28, 2007 signed the " car sales contract" ; Second, Zhang Li will take effect after the verdict they purchased Chevrolet Epica sedan refund within seven days together Framatome ; three , together Framatome refund within seven days after the judgment ZHANG car models at the commencement one hundred twenty-four thousand two hundred yuan ; Fourth, together Framatome compensation within seven days after the entry into force of the decision ZHANG purchase tax twelve thousand four hundred yuan service fee of five hundred dollars, the premium six thousand and sixty yuan ; five , together Framatome in effect after ruling Zhang Li double compensation within seven car models one hundred thirty-eight thousand yuan ; six , Zhang Li dismissed other claims . After the verdict , together Framatome appeal. Beijing Second Intermediate People's Court on March 13, 2008 ( 2008 ) II Min Zhong Zi No. 00453 civil judgments : dismissed the appeal and upheld the original verdict.
Referee reason
Into force the court to rule that: the plaintiff was due to Zhang Li needs to buy a car for personal use, the defendant together Framatome is no evidence that Zhang Li bought the car for operations or other non- life consumption , so the behavior of Zhang Li to buy a car belonging to the consumption needs of life , should apply the "PRC consumer Protection Law ."
According to the two sides signed the " car sales contract" agreed to jointly pay付张莉Huatong company vehicles should be no maintenance records of the car, the vehicle is now sold in fact been repaired before delivery , which is mutual recognition of the fact that it is the case At issue is whether the company together huatong fulfilled this obligation in advance .
Vehicle sales price decreased or offers and sellers Mini Jushi is commonly used marketing strategies, the result is the parties negotiated , and can not thus be inferred on the basis of the company together Huatong Zhang Li told defective car on its price cut and deals. There jointly submitted by Zhang Li Hua Tong signed acceptance of a single vehicle handover , because the Department of Heli Framatome unilateral preservation and note the contents of a column written by a different officer of the company , this will not be accepted in addition to Zhang Li , the lack of acceptance of a single Zhang Li to prove before the vehicle repaired understand. So the defense force through the company called Hua Zhang Li to fulfill this obligation flaws , inadmissible , should be considered together to China through the company in the sale of vehicles to conceal the existence of car defects , fraud , and increase payments to be returned to the car Zhang Li compensation of losses.
Case No. 18, Guidance
ZTE ( Hangzhou ) Co., Ltd. v. Peng labor contract dispute
( Issued by the Supreme Court Judicial Committee discussed Nov. 8, 2013 )
Keyword
Civil unilaterally terminate the labor contract
Referee points
Workers living in other times in the bottom level of the employer assessment , it is not the same as " incompetent " , unilaterally terminate the labor contract does not meet the legal conditions under which the employer can not unilaterally terminate the labor contract .
Related ordinance
"Labor Contract Law" Article 39 , Article 40
Basic facts
July 2005 , the defendant entered the plaintiff ZTE Peng (Hangzhou ) Co., Ltd. ( hereinafter referred to as ZTE ) work , labor contract Peng engaged in sales, basic salary 3840 yuan per month. The company's " employee performance management approach" : employee for six months, the annual performance appraisal are S, A, C1, C2 four levels , representing excellent, good, does not match the values, the results could be improved ; S, A, C (C1 ratio C2) levels were 20% , 70% , 10% ; incompetent assessment of the working principle C2. Peng former Division is engaged in the distribution of the company's sales, after January 2009 due to the dissolution of the distribution department and other reasons , the Eastern Region reorientation to work in sales . Second half of 2008 , the second half of 2009 and the first half of 2010 , Wang Peng examination results are C2. ZTE believes that Peng can not do the job , after job transfer , still can not do the job , so in the payment of compensation under the circumstances of the economy lifted the labor contract.
July 27, 2011 , filed Peng labor arbitration . In the same year on October 8 , the arbitration committee ruled : ZTE Peng illegal termination pay compensation of 36,596.28 yuan balance of the labor contract . ZTE considered illegal behavior of their labor contracts do not exist , so in the same year on November 1 taken to court, requesting an order to terminate the labor contract will not pay compensation balance.
Referee results
Binjiang District, Hangzhou , Zhejiang Province People's Court ( 2011 ) Hang Bin Min Chu Zi No. 885 civil judgment on December 6, 2011 : The date of the plaintiff ZTE ( Hangzhou ) Co., Ltd. effective date of this judgment within fifteen days time payment Peng accused of illegal labor contracts balance of 36,596.28 yuan compensation . After the verdict , neither side appeals , the decision has become legally effective .
Referee reason
Into force the court to rule that: In order to protect the legitimate rights and interests of workers, build and develop harmonious and stable labor relations , " Labor Law " , " PRC Labor Contract Law" on the employer to unilaterally terminate the labor contract conditions were clearly defined . ZTE plaintiff to the defendant Peng incompetence , still qualified for the work after reorientation grounds to terminate the labor contract , which should bear the burden of proof. Under the provisions of "employee performance management approach" , "Scale C (C1, C2) assessment level of 10% ", although once the assessment results for Peng C2, C2 level but not exactly the same , " incompetent " , ZTE communication alone assessment of the level of assessment results limited proportion of the workers can not prove incompetent , does not meet unilaterally terminate labor contracts whereby the legal conditions . While in January 2009 from the distribution division Peng reorientation , but after reorientation were engaged in sales and distribution presence led to the dissolution of families Peng reorientation this fundamental reason , it can not prove that Peng was due to incompetence and reorientation . Therefore , the main张王鹏ZTE incompetence , incompetence after reorientation still insufficient basis for the work , there is the case of illegal termination of labor contracts , it shall pay financial compensation to the compensation standard twice Peng .
Guiding Case No. 19
Zhao Chunming , etc. v. Yantai Fushan trucking company Wei De equality vehicle accident liability disputes
( Issued by the Supreme Court Judicial Committee discussed Nov. 8, 2013 )
Keyword
Civil liability motor vehicle accidents deck joint and several liability
Referee points
Motor vehicle license plate owner or manager will lend to others decks used, or knowing that others decks not stop using their motor vehicle license plate , deck motor vehicle traffic accidents causing harm to another , the vehicle owner or managers should jointly and severally liable with the owner or manager of a motor vehicle decks .
Related ordinance
" PRC Tort Liability Law" Article VIII
" Republic of China on Road Traffic Safety Law" Article XVI
Basic facts
At 5:30 on November 25, 2008 Xu , Lin Zedong accused of driving decks Lu F41703 truck traveling at the same time a certain period of three highways , traveling the same direction with the driver of the bus collided with the defendant Zhou Yaping , washed down two vehicles roadbed , bus passengers in the car caused by tumbling Pingyong Ju died on the spot . After the traffic police department , primarily responsible for the truck drivers Lin Zedong , Zhou Yaping negative secondary responsibility for bus drivers , Pingyong Ju assumes responsibility for the accident . Plaintiff Zhao Chunming , Moumou , Feng Moumou , respectively, the Department of the deceased Pingyong Ju Hou Moumou husband , son, father and mother.
Lu F41703 registration number plate of the vehicle management department truck accident is not a truck, the owner of the number plate registration system defendant Yantai Fushan truck trucking company ( hereinafter referred to Fukuyama company ) , the actual owner of the German department accused Wei Ping, the truck Yong'an property Insurance Company in Yantai defendant center branch ( hereinafter referred to as Wing insurance company ) insurance compulsory third party liability insurance.
Deck plate using Lu F41703 truck ( truck accident ) the actual owner is accused Wei Guanghui , Lin Zedong Department Wei Guanghui hire drivers. According to vehicle registration information reflects management department , Lu F41703 truck registration plate since April 26, 2004 to July 2, 2008 , has been 15 times to apply for replacement of damaged or lost ground plate and driving license . August 23, 2007 Wei Guanghui applications for Fukuyama 's signature on a replacement driving license application form . After the incident, Fukuyama company had sent to the traffic police department related matters. Trial , Wei Guanghui said Wei Tak Ping informed on matters decks and decks fee charged after the incident Wei Wei Guanghui also to borrow policy Lu Deping F41703 truck registration number plate to deal with accidents , policyholders still Wei Guang Hui Department .
Bus accidents registered owner of the defendant Zhu Rongming department , but the vehicle changed hands several times , is the actual owner of the Department of Zhou Yaping , Zhu Rongming have not benefited from the passenger car operations neither dominate . Construction Engineering Co., Ltd. Shanghai takeoff defendant ( hereinafter referred to as take-off company ) Zhou Yaping Department of employers , but the incident Zhou Yaping not perform their duties . The passenger in the People's Insurance Company of China , Shanghai Branch ( hereinafter referred to as the People's Insurance Company ) insured the compulsory third party liability insurance.
Referee results
Shanghai Baoshan District People's Court ( 2009 ) Po Man A ( China ) Chu Zi No. 1128 civil judgment on May 18, 2010 : First , the defendant Wei Guanghui , Lin Zedong four plaintiffs compensation for funeral expenses , mental damage soothe gold, death compensation , transportation expenses, lost income , accommodation , dependents living expenses and attorneys' fees totaling 396,863 yuan ; Second, the defendant Zhou Yaping four plaintiffs compensation for funeral expenses , mental solatium , death compensation , transportation expenses, lost income , accommodation, dependents living expenses and attorneys' fees totaling 170,084 yuan ; Third, the defendant Fukuyama company , de Wei Ping said judgment jointly and severally liable for the obligations of the first term dispositif compensation ; defendant Wei Guanghui , Lin Zedong , Zhou Yaping above dispositif judgment obligation to compensate the first and second term mutual jointly and severally liable ; Fourth, dismissed the remaining claims of four plaintiffs . After the announcement, David De Ping appeal. Shanghai Second Intermediate People's Court on August 5, 2010 ( 2010 ) Shanghai Second Man One ( China ) Zhong Zi No. 1353 civil judgment : dismissed the appeal and upheld the original verdict.
Referee reason
Into force the court to rule that: According to the present case responsible for that accident , the accident truck driver林则东bear the main responsibility for the accident , and Wei Guanghui is the actual owner of the truck accident , also林则东employer , so Wei Guanghui and林则东We should also bear the primary liability on the case accident losses. Lu Wing insurance companies are not the actual truck accident truck F41703 , F41703 Lu did not know it was a motor vehicle accident truck deck plate , the Wing insurance company not liable for the accident case . According responsible for that accident , the bus driver Zhou Yaping case negative secondary responsibility for the accident , Zhou Yaping also the actual owner of the bus , so Zhou Yaping accident case to deal with the loss of bear secondary liability. Zhu Rongming Although the Department of the registered owner of the bus , but the bus has changed hands several times , Zhu Rongming neither dominate the car and did not benefit from operating in the car , so the case does not assume responsibility for the accident . Zhou Yaping , although employed off the company , but not in the case of the incident Zhou Yaping off their duties to the company , it is not off the company responsible for the case . As the coach who underwriting insurance company , because the deceased冯永菊Department of occupants , the law does not apply compulsory traffic accident liability insurance, insurance companies enemy is not responsible for the case . Also, Wei Guanghui and林则东party , although the proportion of responsibility Zhou Yaping party shall bear their own different, but the common occurrence of violations of both the Department of the accident caused , so Wei Guanghui , Lin Zedong to Zhou Yaping should responsible share, Zhou Yaping the Guardian QDI , Lin Zedong should share responsibility shall be jointly liable for each other .
Lu F41703 trucks registered owner of the company and the actual owner of Fukuyama Tak Ping Wei , Wei Guanghui , who knowingly apply their own motor vehicle license plate , and is not blocked , and provides convenient, conniving decks trucks driving on the highway, Fukuyama company and health behavior has Deping motor vehicle license plate belongs to lend to others to use the case of the violation of the law . " PRC Road Traffic safety Law " and other relevant vehicle management. The motor vehicle license plate decks lend to others to use, will not meet the safety and technical standards condone vehicle decks on the road , increasing the risk of road traffic , endanger public safety by . Deck motor vehicle traffic accidents cause damage , the same number plate lender at fault for the accident liability of car deck party bear , plate lender shall bear joint and several liability . Therefore, Fukuyama companies and Wei Tak Ping respond jointly and severally liable Wei Guanghui share liability with林则东party .
Case No. 20 Guidance
Fine Chemical Co., Ltd. of Shenzhen City Sirui Man Kengzi Water Co. v. Shenzhen , Shenzhen Kangtai Blue Water Treatment Equipment Co., invention patent infringement dispute
( Supreme Court of the Judicial Committee of the People's discuss Posted by November 8, 2013 )
Referee points
After the invention patent application publication patent case to grant temporary protection period before the manufacture, sale, import of products alleged patent infringement patent law is not prohibited , its subsequent use , offering for sale , selling, even without patent right permission , nor deemed to infringe the patent , but the patent owner may request the implementation of the law during the period of temporary protection units or individuals whose invention to pay an appropriate fee .
Related ordinance
" Patent Law " 11, Article 13 , Article 69
Basic facts
Shenzhen Sirui Man Fine Chemicals Ltd. (hereinafter referred Sirui Man company ) at January 19, 2006 to the State Intellectual Property Office patent application , the patent on July 19, 2006 disclosure , January 21, 2009 authorized Notice the title of the invention authorization for " the preparation of high -purity chlorine dioxide equipment," patent owner Sirui Man companies. The patent fee paid last time was November 28, 2008 . October 20, 2008 , Shenzhen Kengzi Water Co. ( hereinafter referred to as Kengzi water company ) and the Shenzhen Kangtai Blue Water Treatment Equipment Co., Ltd. ( hereinafter referred to as Conde blue company ) signed a " procurement contract" copy Kengzi water Company to purchase Conde Conde Blue Blue chlorine dioxide generator set , price 260,000 yuan . Conde Blue company was December 30, 2008 on the sale of these products shall require the tax authorities on behalf of the uniform invoice . In the " sales contract ", the convention Kengzi water company payments to be paid in installments equipment company Conde blue , blue company Conde Kengzi water company to provide installation, commissioning , repair, maintenance , technical support and after-sales service .

March 16, 2009 , Sirui Man company to Shenzhen Intermediate People's Court of Guangdong Province, claimed that: it has the name " the preparation of high -purity chlorine dioxide equipment" patent ( hereinafter referred to as involving patents ) , Conde Blue company chlorine dioxide production equipment manufacture, sale and use Kengzi water companies involved in the invention falls into the scope of patent protection . Request an order two defendants to stop the infringement and compensation for economic losses of 30 million, bear the cost of litigation fees . In this case, Sirui Man company did not offer to pay patent royalties on temporary protection claims, the Court of First Instance in the case have been Interpretation of Sirui Man still maintains the original lawsuit .
Referee results
Shenzhen City, Guangdong Province, the Intermediate People's Court ( 2009 ) Shen Zhong Fa Min San Chu Zi No. 94 civil judgments on January 6, 2010 : Conde Blue company to stop infringement, companies and Kengzi Conde blue water companies related compensation Sirui Man economic losses 80,000 yuan . Conde Blue companies, water companies are Kengzi appeal , the Guangdong Provincial Higher People's Court ( 2010 ) Yue Gao Fa Min San Zhong Zi No. 444 civil judgment on November 15, 2010 : dismissed the appeal and upheld the original verdict. Kengzi water company refused to accept the second trial , the Supreme People's Court for retrial. Supreme People's Court on December 20, 2011 ( 2011 ) Min Ti Zi No. 259 civil judgments : revocation of the original first and second instance verdict, dismissed the claims Sirui Man company .
Referee reason
Supreme People's Court said: Sirui Man in the present case does not make the claim payment of patent royalties temporary protection , so the main focus of controversy in this case is that Kengzi water company to use its patents involved in the invention after invention patents involved During the period of temporary protection to Conde blue sued the company purchased the product infringes a patent infringement involved invention patents, Conde blue patent involved in the alleged patent infringement licensed products for the water company to provide service if Kengzi involved invention patent infringement .
For the identification of patent infringement should be fully taken into account the relevant provisions of the Patent Act . According to the time the alleged infringement case , the case should be applied in 2000 to modify the " Patent Law ." Patent Law Article 11 states: " After the invention and utility model patent is granted, except as otherwise provided in this Law , no entity or individual may, without authorization of the patentee , not implement all of its patent, that for production and business purposes from making, using , offering for sale , selling , importing the patented product, or use the patented process, and use , offer to sell , sell or import the product directly obtained by the patented process " Article XIII : ." invention after the publication of patent applications , the applicant may require the entity or individual whose invention to pay an appropriate fee " Article 62 states: ." patent infringement statute of limitations is two years from the patentee or interested party that or should have obtained knowledge of the infringing act . to grant the use of the invention before the patent application for invention patent published after no appropriate fee paid , the patentee required to pay royalties statute of limitations is two years from the patent holder may know or should know others from using his invention of computing , however, the patentee in a patent recently granted already know or should have learned , from the date of grant of the patent right . " considering the foregoing, Although the provisions of the Patent Act requires the applicant may apply for the patent before the patent granted to publish ( ie provisional patent protection period ) to implement its invention or individual units pay an appropriate fee , which enjoys a request for provisional patent protection period付发明use rights fee , but for the behavior of their inventions patented implement temporary protection period does not have the right to stop the implementation of the request . Therefore, during the implementation of temporary protection patents related inventions , patent law does not belong prohibited . In the case of Patent Provisional manufacture, sale, import alleged patent infringing product patent protection period is not prohibited by law , and its subsequent use , offering for sale , selling behavior of the product , even if the patent without permission , but also should be allowed . In other words, the patent is not entitled to a temporary ban on the patent protection period manufacture, sale and subsequent use of imported products, others sued for patent infringement , offering for sale , sale . Of course, this does not negate the requirement to implement the patent holder to exercise its right to pay the appropriate fees according to the inventor of the Patent Law Article 13. Under the provisional patent for the manufacture, sale , import protection period alleged patent infringing products , sales , users provide a legitimate source , the sellers and users should not bear the responsibility to pay the appropriate fee .
Identified in the implementation of the follow-up after the invention patent product obtained using the invention for provisional patent protection period , offering for sale , selling and other implementing acts did not constitute infringement, consistent with the legislative purpose of the patent law. On the one hand , the patent system is designed to be " open to change protection ," and the request is to be protected after authorization . For a patent for invention , in public before the date of implementation -related inventions , does not constitute infringement , the public should be allowed in future behavior after the implementation of the follow-up the implementation of the invention of the product obtained ; between 2012 to authorize the disclosure date , the patent application for the invention to provide the temporary protection , during the implementation of related inventions , patents are not prohibited by law , should also allow the implementation of the invention , after the product obtained during the subsequent implementation of this behavior, but after obtaining a patent applicant is entitled to request a temporary During the period of its implementation to protect inventors pay the appropriate fee . Since patent law does not prohibit the act of invention patents before , the previous patents manufactured products, nor the subsequent implementation of the infringement . Otherwise contrary to the legislative intention of patent law , is not disclosed or authorized technical program provides protection. On the other hand , patent law provides the right to first use , although only provides first with the right people within the original scope to continue to manufacture the same product , the same method is not regarded as infringement , does not require the manufacture of the same product or products manufactured using the same methods whether the subsequent implementation of a tort , but not because of patent law does not explicitly provide for the subsequent implementation of the above identified acts constitute infringement, otherwise, the first with the right to the patent law does not make any sense.
Case, sales Conde blue product is sued for patent infringement involving provisional patent protection period, this behavior is not prohibited by patent law. In this case , the subsequent use Kengzi water company sued for patent infringement acts purchased products should also be allowed. Therefore , the water company Kengzi subsequent usage behavior does not infringe the patent involved invention . Similarly, Conde blue patent involved in the alleged patent infringement licensed products provide service for Kengzi water company is not involved in invention patent infringement .
Case No. 21 Guidance
Inner Qiushi Real Estate Development Co., Ltd. v. Hohhot People's Air Defense Office administrative imposition of civil air defense case
( Issued by the Supreme Court Judicial Committee discussed Nov. 8, 2013 )
Referee points
In violation of civil air defense construction and related regulations should be built without building basement , belongs not to fulfill legal obligations violations. Construction unit shall pay legally basement construction costs easily , NA low-cost housing and affordable housing and other affordable housing projects on the " to waive fees of various urban infrastructure supporting administrative fees " requirement.
Related ordinance
" Civil Air Defense Law of the PRC " Article 22 , Article 48
Basic facts
September 10, 2008 , the defendant Hohhot People's Air Defense Office ( hereinafter referred to Hohhot Civil Air Defense ) served " deadline for " knot build " approval procedures to the plaintiff Inner Qiushi Real Estate Development Co. , Ltd. ( hereinafter referred to as Qiushi real estate company ) this book " , told Qiushi real estate company's new affordable housing ," Qiushi City " residential district project is not in accordance with the" PRC Civil Air Defense Law " Article 22 , " civil air defense construction regulations " fourth fifteen , the provisions of Article 47 , while the construction of the basement for civil use , requiring Qiushi real estate company on September 14 to Hohhot Civil Air Defense Office for " knot build" procedures and to submit relevant information . June 18, 2009 , Hohhot Civil Air Defense Office of Qiushi real estate company to call civil defense levy word No. ( 001 ) " Civil Air Defense Office of Hohhot easily impose basement construction costs decision," Qiushi real estate company decided to " Qiushi City" project expropriation " ex situ basement construction fee " 1.7246 million yuan . Qiushi real estate company " Qiushi City" project should be built without construction of 5518 square meters basement without objection , Civil Air Defense Office of Hohhot levy decision making procedures legally without objection .
Referee results
Hohhot Xincheng District People's Court ( 2009 ) New Line Chief Chu Zi No. 26 judgment on January 19, 2010 : maintaining call civil defense levy word made ​​Hohhot Civil Air Defense Office No. ( 001 ) " Hohhot People's Air Defense Office construction fees levied basement easily written decision . " After the verdict , Qiushi real estate company filed an appeal . Hohhot Intermediate People's Court on April 20, 2010 ( 2010 ) calls the final word line Administrative Decision No. 16 : dismissed the appeal and upheld the original verdict.
Referee reason
Into force the court to rule that: the State Council " to resolve a number of opinions on the housing difficulties of urban low-income families ," Article XVI " low-rent housing and affordable housing construction, slum upgrading areas, renovation of old residential urban infrastructure facilities will be free of charge and other administrative fees and government funds . " Ministry of Construction and other seven ministries "affordable housing management approach" Article VIII "affordable housing project to waive fees of various urban infrastructure supporting administrative fees and government funds ." Above for affordable housing and other affordable housing projects waive various provisions of administrative fees , although not explicitly adjust the object , but the legislative intent , the object it points to the construction of behavior should be legal . The provisions of Article 22 of Civil Air Defense Law " city new civil construction , in accordance with relevant state regulations can be used for the construction of the basement wartime air defense ." " Civil air defense construction regulations," Article 48 " shall be constructed in accordance with the provisions of the civil air defense basement , due to geology , topography and other factors should not be built, or provisions should be built first floor of the building floor area is less than the area of ​​civil construction , the approval of the competent department of civil air defense , you can not build , but must be constructed in accordance with basement area required to pay the cost of the construction costs easily by the competent departments for civil air defense construction nearby easily . " That is, only in the case of laws and regulations should not be built in the basement , affordable housing and other affordable housing projects can not build basement and basement easily applicable exemption subject to the relevant provisions of the construction costs . Exemption from basement construction costs easily apply the relevant provisions of the object should not include illegal construction practices , otherwise it will cost less than the illegal situation resulting compliance costs , in violation of legislative intent , is not conducive to national security and safeguarding the fundamental interests of the masses. Qiushi real estate company which shall be built on the basement is not built, belongs not to fulfill legal obligations violations, not applicable exemption from the provisions relating to preferential easily basement construction costs .
Case No. 22 Guidance
Richard Winter high Chenshou Zhi v. Laian People's Government approved the resumption of land use rights case
( Issued by the Supreme Court Judicial Committee discussed Nov. 8, 2013 )
Referee points
Consult local people's government for its approval an administrative department made ​​an internal administrative action in general , this can not be sued . However, the approval of the administrative department directly put into practice the rights and obligations and administrative relative person had a real impact , the approval of the administrative relative person refuses to accept a lawsuit, the people's court shall accept .
Related ordinance
"PRC Administrative Procedure Law " Article XI
Basic facts
August 31, 2010 , LAIAN Land Resources and Housing Authority submitted to the People's Government of Lai'an "on the recovery of state-owned land use right to consult ," the county's request to recover Yeongyang Tashan Middle East and parts of the land use right . September 6 , Laian People's Government to make "agreed recover Yeongyang Tashan Middle East and some plots of state-owned land use rights approved ." After Laian Land Resources and Housing Authority received the approval, the law does not make the original land use rights of people to be served to recover the land use right decision , directly by Laian land reserve center implemented. Richard Winter high陈守志houses were recovered within the scope of the right to use the land , the people's government withdraw its Laian state-owned land use rights approved dissatisfied , filed for administrative reconsideration. September 20, 2011 , Chuzhou Municipal People's Government to " administrative reconsideration decision," Laian maintain the people's government approval. Richard Winter high Chenshou Zhi is still not satisfied , administrative proceedings, request the court to revoke Laian people's government above approval.
Referee results
Chuzhou City Intermediate People's Court on December 23, 2011 to ( 2011 ) Chu Chu Zi No. 6 line administrative ruling : dismiss Richard Winter high陈守志prosecution . Richard Winter high Chenshou Zhi appeal , Anhui Province Higher People's Court on September 10, 2012 ( 2012 ) Anhui final word line administrative decision No. 14 : First, remove Chuzhou City Intermediate People's Court ( 2011 ) Line No. 6 Chu Chu Zi administrative rulings ; Second, the instruction Chuzhou City Intermediate People's Court to continue hearing the case .
Referee reason
Into force the court to rule that: According to " land reserve management approach" and the " state-owned land reserves Anhui approach" to recover the way reserves the procedural requirements of state-owned land , the administrative department of land and resources Lai'an to withdraw approval of the People's Government in Laian state-owned land use rights after program approval, shall be served on the original land use rights legally effective recovery of foreign state-owned land use rights notice. Laian People's Government approved an internal administrative act , not a relative who served on the rights and obligations relative who has not been a real impact , generally do not belong to the scope of the case by the administrative proceedings . But in this case , the People's Government after Laian approval, the administrative department of land and resources Lai'an no legal instrument of foreign produced and delivered into force , namely the direct cross Laian Land Reserve Center of compensation and resettlement implementing acts under the approval of the original rights and obligations of the land use rights of people have had a real impact ; when the original land use rights also apply for government information disclosure via knew the contents of the reply , and the reply filed administrative reconsideration , make a reconsideration decision is also informed of the right to appeal for reconsideration organ , the has been approved and the actual implementation of the specific administrative act outside into the external legally binding. Therefore , the approval filed an administrative lawsuit , the people 's court shall accept .

TypeInfo: The new law Courier

Keywords for the information:

Copyright Shandong State Yao Law Firm Address: Jinan City, Shandong Province, Shandong Swallow Road, Shandong Administration Institute Library, 5th Floor, 0531 -67,899,077
Lu ICP13024811号-1 Technical Support 300.cn

Accumunative views:12406